Recently, the ACCA decided United States v. Johnson, a case about excited utterance.
TN (the “victim”) told LT GC (her “friend”) that Appellant sexually assaulted her shortly after it occurred. Appellant unsuccessfully objected to this evidence on hearsay grounds and ultimately was convicted of sexual assault. On appeal, the ACCA considered whether the military judge erred in admitting the victim’s hearsay statement as an excited utterance. In a unanimous opinion, the ACCA held that the military judge erred, but that the error was harmless.
I. The Victim’s Statement Was Not an Excited Utterance
Because the victim’s friend testified that the victim was “very confused, shocked, upset and crying,” the military judge admitted her statement as an excited utterance. Hearsay evidence may be admitted as an excited utterance if it is “spontaneous, excited or impulsive rather than the product of reflection and deliberation.”
The Court held that the victim’s statement was not an excited utterance and the military judge should have excluded it because (1) the victim reflected on the sexual assault while showering before going to her friend’s room; (2) she continued to reflect while waiting 30 minutes for her friend; (3) she made the statement in response to a question from her friend; and (4) the statement was unreliable because it was inconsistent with the victim’s in-court testimony.
II. The Error Was Harmless
To determine whether Appellant was prejudiced by the error, the Court applied the Kerr factors. In doing so, it held that the error was harmless because (1) the Government’s case was strong: Appellant’s testimony and the victim’s testimony matched; (2) the Defense’s case was weak: Appellant testified that the victim told him to go to sleep, not that she wanted to have sex; (3) though the victim’s statement was material, it was cumulative with her friend’s testimony; and (4) the statement’s quality was low because it contradicted her in-court testimony.
 Judge Burton authored the unanimous opinion, which was joined by Judges Rodriguez and Fleming.
 This is the first prong of the United States v. Arnold test (C.M.A. 1987). Since the ACCA found that the statement failed this prong, it did not discuss the others.
 On direct examination, the victim testified that she was texting Appellant and he came to her room. But her friend testified that TN saw Appellant in the hallway in the barracks, and then went to her room.
 (1) The strength of the Government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question and (4) the quality of the evidence in question.
CAAFlog 1.0 Archive
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law Resources