On December 28, 2020, the United States Army Court of Criminal Appeals found that a military judge did not abuse their discretion in admitting a sexual assault victim’s statements as residual hearsay given the exceptional circumstances of the case for which the Appellant was found guilty.
Cleveland opinion here.
An enlisted panel sitting as general court-martial convicted appellant of one specification of rape of a child, two specifications of sexual abuse of a child, and one specification of communicating a threat, in violation of Articles 120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b and 934. The panel sentenced appellant to a dishonorable discharge and confinement for eight years. The convening authority approved the adjudged sentence and credited appellant with four hundred thirty days of pretrial confinement credit.
On February 20, 2020, the convening authority withdrew the prior action and substituted a new action. The convening authority approved the findings of guilty for Specifications 1 and 4 of Charge II (rape and sexual abuse of a child in violation of Article 120b, UCMJ) and the Specification of Charge III (communicating a threat in violation of Article 134, UCMJ). The convening authority disapproved the finding of guilty for Specification 2 of Charge II. After reassessing the sentence, confinement was approved for five years and two hundred eighty-five days and appellant was credited with four hundred thirty days of pretrial confinement credit, as well as the time served between the date of trial and the date of action.
Appellant raped and sexually assaulted his biological daughter, HC, when she was between the ages of seven and ten. Appellant was convicted of penetrating HC’s vulva with his finger on multiple occasions, and touching HC’s genitals with his hand on multiple occasion. HC reported the sexual abuse to her mother, JC, through a handwritten note when she was ten years old. A few days later HC was interviewed by PS, a child forensic interview specialist. During the interview, HC detailed several instances when appellant sexually abused her.
Within a week of HC’s interview, appellant was interviewed by a local civilian law enforcement agent. During the interview the appellant made several admissions indicating the sexual abuse over the past three years including penetrating the victim’s vagina with his finger and touching her vagina with his hand.
Within a couple months of these events, HC recanted her allegations that she was sexually abused and testified that appellant did not sexually abuse her.
Pretrial, the government moved to admit the video of HC’s forensic interview into evidence as residual hearsay under Mil. R. Evid. 807. The military judge denied the government’s motion because HC’s statement was not the “best evidence on the issue of whether the alleged abuse occurred.” The military judge determined the victim’s testimony would be the best evidence. The government appealed the ruling pursuant to Article 62, UCMJ. ACCA then issued an opinion finding that the military judge erred. At this time, the court only addressed the issue of whether HC’s statement was more probative than any other evidence and did not address the remaining requirement for admission under the residual hearsay exception.
The government renewed its motion to admit HC’s statement under the residual hearsay exception. The military judge granted the motion finding the statement had circumstantial guarantees of trustworthiness. The statement being a structured child forensic interview and the provided expert testimony regarding the techniques used to take the statement were vital to establishing its trustworthiness. Neither party disputed that the statement was offered as evidence of material facts. The military judge recognized the court’s opinion holding the probative value of the statement. Finally, the military judge held the statement would best serve the purposes of the rule of evidence by providing the fact-finder with “more information on which to make its determinations.”
On appeal, appellant claims the military judge abused his discretion by admitting HC’s statement as residual hearsay. Appellant argues that HC’s prior statement did not possess a sufficient guarantee of trustworthiness to warrant admission. The Court disagrees.
Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if not covered by a hearsay exception in Mil. R. Evid. 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interest of justice.
In reaching their decision, ACCA states, “[t]he Supreme Court has held that the ‘particularized guarantees of trustworthiness’ required by the residual hearsay rule ‘must be shown from the totality of the circumstances,’ but that ‘the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.’” Even though ACCA recognized that Congress intended the residual hearsay exception to be used “very rarely, and only in exceptional circumstance,” they found this case to be one of those few exceptional circumstances because of the following four circumstances: (1) the declarant is a child sex abuse victim which allows for a deferential standard of review; (2) HC testified at trial and was subject to cross-examination; (3) HC’s statement is detailed and was conducted in a non-suggestive manner; and (4) appellant’s statement corroborated HC’s statement.
Additionally, ACCA addressed HC's recantation of her prior statement, finding that the military judge's specific findings supported his conclusion that the statement was trustworthy.
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