CAAF finds in favor of the government for their Article 62(a)(1)(B), UCMJ, appeal in Henry. The court finds the military judge abused his discretion in excluding four statements as hearsay. Chief Judge Stucky writes for the court with Judges Ohlson and Maggs separately dissenting for generally similar reasons.
The government offered prior out of court statements as either excited utterances or present sense impressions under Mil. R. Evid. 803. The military judge disagreed as did the Army Court of Criminal Appeals. The basis for the MJs exclusion was a "that the Government failed to lay a proper foundation, specifically that there was insufficient evidence as to when the alleged assault occurred."
There are two ACCA opinions, one in January 2020 and one in June 2020. Judge Stucky tells us that,
At trial, the Government sought to introduce the following four statements for the truth of the matter asserted, under the excited utterance or present sense impressions exceptions to the rule against hearsay:
The MJ had four reasons to exclude the statements.
Since the military judge based his ruling on an incorrect view of the law—requiring proof of personal knowledge and considering each statement in isolation—and a view of the facts that leaves us firmly convinced that a mistake was committed—that there was no evidence as to when the assault occurred or that JH could have observed it—we hold that he abused his discretion by excluding the four statements of JH and KH.
Judges Ohlson and Maggs conclude--my interpretation--that the majority ignore the abuse of discretion standard. While admitting the judge could have ruled either way and been right, the dissenters find the military judges findings were not clearly erroneous and he followed the law.
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