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Military Rule Of Evidence 807

Mil. R. Evid. 807 is the residual exception to the hearsay rule. See Mil. R. Evid. 803, 807. The rules permit admission of a statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C ) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence (emphasis added). Mil. R. Evid. 807.

In determining what are particular guarantees of trustworthiness, the test set forth in Idaho v. Wright, 497 U.S. 805 (1990) is dispositive. United States v. Pollard, 34 M.J. 1008 (A.C.M.R. 1992). Particularized guarantees of trustworthiness must be shown from the totality of the circumstances surrounding the making of the statement and that render the declarant particularly worthy of belief. Some of the factors to be considered in determining whether a statement is reliable are: spontaneity and consistent repetition of the statement, the mental state of the declarant, . . . and lack of motive to fabricate. Id. at 1011.

A hearsay statement, to be admissible under the residual hearsay rule, must, standing alone, possess the indicia of reliability by virtue of its inherent trustworthiness and not by reference to other evidence. Idaho v. Wright, 497 U.S. at 822. Accordingly, other admissible evidence cannot be used as support for the guaranty of trustworthiness of hearsay statements. The Supreme Court does not permit the "bootstrapping" of unreliable hearsay evidence upon the trustworthiness of other admissible evidence.

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