Today we wrap up our three-part series on the hearsay rules in the Military Rules of Evidence (MRE) by discussing exceptions to the hearsay rules when the declarant is unavailable to testify as a witness. We’ll also cover what’s known as the residual exception, which is the catch-all for circumstances that aren’t defined in other rules.
If you haven’t already, please check out our previous posts in the series, Hearsay and Exceptions to the Hearsay Rule, which explain what hearsay is, when it’s excluded, and when it’s admissible as an exception to the rule against hearsay regardless of whether or not a witness is available to testify.
A witness must be legally unavailable before evidence is admissible as an exception to hearsay under MRE 804.
Before the court will even get to the question of whether a hearsay statement falls under an exception listed in MRE 804, the judge must decide whether the witness is legally unavailable under the rule. Unavailable doesn’t simply mean ‘busy’ in this context.
Legal privileges-such as a spousal privilege or an attorney-client privilege-might create unavailability. Sickness, mental illness, or death may also make a witness unavailable. Even if a witness would seem to be available because of their presence, the witness is considered unavailable when they refuse to testify after being ordered to do so by the judge. A witness who claims that they cannot recall the subject of their testimony might also be considered unavailable.
Absent witnesses are unavailable if the party seeking to introduce the hearsay shows that they followed the proper legal process or took other reasonable steps to get the witness into court. After being deposed, a witness may be considered unavailable based on age, incarceration, or any other reasonable cause. And as with most rules in the armed forces, the mission is paramount; thus, military necessity may create witness unavailability.
It’s important to note, however, that a party trying to introduce hearsay cannot benefit from the exceptions under MRE 804 if the party wrongfully caused the witness unavailability.
If a witness is unavailable to testify, what statements may be introduced as exceptions to hearsay under MRE 804? As with the exceptions found in MRE 803, the exceptions that allow for the admission of hearsay when a witness is unavailable require a certain level of reliability. Former testimony that was given under oath about the same subject matter against the same party who had a similar motive to develop that testimony will often meet an exception.
Statements made against one’s own interest may be admitted as an exception to hearsay under certain circumstances. For instance, if an unavailable witness was overheard confessing to the crime at issue in your trial, an experienced attorney might still be able to get the admitted statement into evidence in your defense, even though the statement is hearsay.
Other exceptions considered reliable enough for admission under MRE 804 if a witness is unavailable include a person’s own account of their personal or family history or an account given by that person’s family member or close family friend. The most dramatic exception is a statement made under belief of impending death. The cinematic example is someone identifying their killer with their last, dying breaths.
The residual exception under MRE 807, the catch-all. When the other rules don’t specifically provide an exception, there’s still the residual exception. When certain conditions are met, including adequate pretrial notice to the opposing party, the judge may still allow hearsay into evidence. The statement must still have equivalent indications of trustworthiness as one of the enumerated traditions, but the statement must also be offered as evidence of a material fact and must be more probative as to that fact than any other evidence that its proponent can find using reasonable efforts. Furthermore, the rule requires that that admitting the hearsay “will best serve the purposes of [the evidentiary rules] and the interests of justice.”
Don’t leave the evidence up to chance. Get an attorney who knows how to use the rules of evidence as both a sword and a shield.
You can’t assume that hearsay will be excluded as evidence against you simply because it’s hearsay. At the same time, you may need hearsay statements to present your best defense in court. When your life and future is on the line, it’s important to hire a defense attorney who knows the rules of evidence inside and out and has the court-martial trial experience to put that knowledge to use in an effective and strategic way.
The attorneys at Patriots Law Group have the experience to use every tool at their disposal, including the military rules of evidence, to zealously defend you against criminal charges.
DISCLAIMER: The information above is for general informational purposes only. No attorney-client relationship is intended or created by this information. Each individual situation is different and therefore a formal in-person consultation is necessary before any specific advice may be relied upon as appropriate and accurate for a given situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice you may rely upon. We serve clients anywhere in the world, with in-person consultations available at our Suitland, MD office — right next to Andrews Air Force Base — for clients in Maryland, Virginia, and Washington, D.C.