United States v. Clark

CRAWFORD, Judge

(concurring):

I agree with the majority opinion and write only to observe that the analysis utilized by the majority in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) [cited in Part III of the majority opinion, 35 MJ at 104], seems to apply only to statements being measured for compliance with the Confrontation Clause when the witness is unavailable to testify. In cases such as the instant one, where there is no confrontation issue because of waiver, I do not believe the constitutional restrictions regarding use of corroborating evidence apply. 497 U.S. at 822, 110 S.Ct. at 3150. Thus, unless some other prohibition arises, I believe that corroborating evidence can be used to assess the “equivalent circumstantial guarantees of trustworthiness” prong of the residual hearsay evidentiary rules. Mil.R.Evid. 803(24) and 804(b)(5), Manual for Courts-Martial, United States, 1984. I do not read the majority opinion as implying the contrary.