CAAF has decided United States v. Norwood.
A necessary read for litigators who regularly face Mil. R. Evid. 801 issues. While the court ultimately finds no harm,
Even though we now hold that the military judge’s decision to admit the entire substantive portion of the videotaped statement did not rise to the level of an abuse of discretion, I do not believe this case should be seen as an exemplar of how military judges should approach these types of issues in the future. Generally speaking, a military judge’s decision to admit a prior consistent statement in its entirety is fraught with peril. See Finch, 79 M.J. at 398. Indeed, such a step may result in prejudice to an accused of such a magnitude that it merits reversal of a conviction. Therefore, in regard to Issue I, although I ultimately agree with the majority that the military judge did not abuse his discretion in admitting the entire substantive portion of the videotape, I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts.
Ohlson, J., concurring in the result.
The military judge did not abuse his discretion in admitting prior statements of the victim as prior consistent statements—what the court deals with is which part of Mil. R. Evid. 801 applied and if applicable for what purpose. Here the military judge was correct but for the wrong reason.
The framing of the attack also leads to the issue of the prong of M.R.E. 801(d)(1)(B) under which the interview could be admitted. The CCA determined that the military judge erred when he concluded the interview was admissible under M.R.E. 801(d)(1)(B)(ii) because the impeachment constituted an attack on another ground, when he should have determined that the interview was admissible under M.R.E. 801(d)(1)(B)(i) because the attack amounted to a charge of a recent fabrication or recent improper influence. The defense made an attack “on EN’s entire testimony at trial regarding the alleged sexual assault, not to specific portions of her testimony.”
Judge Ohlson complains that the majority was “remiss” in not squarely addressing the military judge’s error in basing his ruling on Mil. R. Evid. 801(d)(B)(ii) rather than Mil. R. Evid. 801(b)(D)(i).
Here, the military judge concluded that the defense counsel had implied that the victim’s in-court testimony was the product of improper prosecutorial coaching but then stated that prosecutorial coaching is an attack on another “ground.” However, as we emphasized in United States v. Finch, the reference in M.R.E. 801(d)(1)(B)(ii) to “another ground” means a ground other than a ground listed in M.R.E. 801(d)(1)(B)(i). 79 M.J. 389, 395–96 (C.A.A.F. 2020). A charge of prosecutorial coaching falls under the grounds listed in M.R.E. 801(d)(1)(B)(i). Thus, the proper basis for analyzing the admissibility of the victim’s videotaped statement was M.R.E. 801(d)(1)(B)(i) rather than M.R.E. 801(d)(1)(B)(ii). This is not an inconsequential point.
Essentially Judge Ohlson is saying that,
Consistent with our recent unanimous decision in [United States v.] Finch, [79 M.J. 389 (C.A.A.F. 2019)] when ruling on an M.R.E. 801(d)(1)(B) issue such as this one, a military judge may admit at trial only those portions of a prior statement that are consistent with a witness’s in-court testimony and that are relevant to the express purpose of rebutting the allegation of a recent improper influence. Finch, 79 M.J. at 396. Thus, if just a segment of a prior statement can adequately rebut an allegation that a witness was affected by a recent improper influence, then only that segment may be admitted at trial.
While evidence rules are replete with exceptions, we should take care that exceptions do not swallow the rule or, as here, be clear which exception applies.
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