October 14, 2021

United States v. Henry, 81 M.J. 91 (C.A.A.F. 2021)

Defendant, charged with assault of his spouse, filed a motion to suppress statements by his child and wife as hearsay. The military judge, rejecting the government’s argument that the statements were admissible under the excited utterance exception to the rule against hearsay, granted defendant’s motion. The government appealed to the United States Army Court of Criminal Appeals, which affirmed the trial court’s ruling. Subsequently, the Army Judge Advocate General certified the issue (Did the military judge abuse his discretion in excluding the four statements on which the prosecution sought interlocutory appellate review, pursuant to Article 62, UCMJ?), to the United States Court of Appeals for the Armed Forces. On review, the court held that the military judge abused his discretion in refusing to admit the statements under Military Rule of Evidence 803(2), the excited utterance exception. The court found that although the government “merely” needed to prove, by a preponderance of the evidence, that certain factors were met—notably that the: (1) statements were “spontaneous, excited or impulsive rather than the product of reflection and deliberation”; (2) event was startling; and (3) declarant was under the excitement of the event—“the military judge evidenced a grudging view of the excited utterance exception and raised the standard to an impermissibly high level.” The court explained that the heightened standard incorrectly focused on whether the military judge believed whether a crime occurred and analyzed each statement in isolation. The court continued, emphasizing that, on “a foundational note,” MRE 803(2) does not require corroboration, meaning that a statement is sufficient to establish the existence of an exciting event; “[n]o further corroboration of the startling event is required, and it is inappropriate for the military judge to look for alternate theories of what could have prompted the excited statements.” In addition, the trial court could not require proof of a declarant’s personal knowledge or that a witness be well acquainted with a declarant in order to testify about their demeanor. The court explained that what was required was an analysis of the totality of the circumstances; and, in the instant case, “[t]he four statements, considered together as part of the ‘totality of the circumstances,’ provided evidence of the existence of the startling event, an assault, and when” the assault occurred. The certified question was answered in the affirmative, and the case was remanded to the United States Army Court of Criminal Appeals for actions consistent with the opinion.