United States v. Johnson

SULLIVAN, Judge

(concurring in the result):

I agree with the military judge that he could not legally consider circumstances independent of the making of an out-of-court statement for the purpose of that statement’s admission under the residual hearsay exception of Mil.R.Evid. 803(24). See United States v. Kelley, 45 MJ 275, 282 (1996) (Sullivan, J., concurring in part and in the result and dissenting in part); United States v. Martindale, 40 MJ 348, 349 (CMA 1994) (Sullivan, C.J., dissenting); United States v. McGrath, 39 MJ 158, 169 (CMA 1994) (Sullivan, C.J., dissenting). Accordingly, I disagree with the majority’s conclusion that the military judge erred when he refused to consider evidence of such circumstances proffered by the defense against the admission of the Government’s hearsay evidence in this case. See also Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (independent corroborating circumstances may not be considered in admission of residual hearsay).

The majority’s position in this case and its predecessors (Kelley, Martindale, and McGrath) is not supported by federal case law. The Mil.R.Evid. 803(24) question concerning the permissible guarantees of trustworthiness which may be considered where the out-of-court declarant testifies is not particular to our Court and authority on it goes both ways. See United States v. Dunford, 148 F.3d 385, 393 (4th Cir.1998) (total context in which the statements were made); United States v. Grooms, 978 F.2d 425, 427 (8th Cir.1992); see also Crespin v. State of New Mexico, 144 F.3d 641, 648-49 (10th Cir.1998); cf. United States v. Valdez-Soto, 31 F.3d 1467, 1471 (9th Cir.1994). Even commentators disagree on this question. See C. Mueller & L. Kirkpatrick, 4 Federal Evidence § 475 at 682-83 (2d ed. 1994); cf. J. Weinstein & M. Berger, 5 Weinstein’s Federal

*477Evidence § 807.03[2][b] (2d ed. 1998); S. Saltzberg, M. Martin, & D. Capra, Federal Rules of Evidence Manual 1945 (7th ed. 1998). However, I can find no court that solves this problem by granting unlimited discretion to a trial judge to determine whether outside corroborating or impeaching circumstances may be considered.

Unbridled discretion, as permitted by the majority of this Court in this case and United States v. Kelley, supra, suggests arbitrariness, not law. Here and in Kelley, where an accused sought to introduce into evidence circumstances not surrounding the making of the hearsay statement to show its lack of trustworthiness, this Court held that the military judge may preclude such defense evidence. However, in United States v. McGrath and United States v. Martindale, both supra, the majority held that the military judge can permit the Government to introduce evidence of corroborating circumstances independent of the making of the statement to support admission of evidence under the residual hearsay exception. Why is it okay for the prosecution, but not the defense, to introduce evidence of these circumstances? This Court should be equally just for both sides in evidentiary matters. See Art. 46, UCMJ, 10 USC § 846.