To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that A statement is not hearsay if: 1. The declarant testifies and is subject to cross-examination about a prior statement. 2. The declarant testified under oath at a prior “hearing” or “or proceeding.” 3. The prior statement is inconsistent with…
Impeachment with conviction. Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we…
Military (Federal) Rule of Evidence 803(3) provides an exception to the rule against hearsay for A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of…
From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said: The general purpose…
Federal Evidence Review has a good reminder that what may appear to be statements admissible as excited utterances may not in fact be so. Thus, defense as always your job is to ensure that the prosecution doesn’t get away with ritualistic or talismanic incantations of, “it’s an excited utterance (or…