Army Court of Criminal Appeals

United States v. Jarlego

While prosecuting Jarlego for two specifications of raping a child and a sexual abuse of a child, the prosecution succeeded in having the MJ admit a ""birth verification" document offered to prove the age of the victim, who did not testify." And accordingly, gets Jarlego a new trial.

The defense had objected for hearsay, hearsay within hearsay, best evidence, and relevance." They did not specifically object on confrontation grounds. The defense also argued the document was prepared "with an eye towards litigation."

ACCA declined the Government's invitation to find the defense waived the confrontation objection at trial  because they did not use the magic phrase "confrontation clause" as an objection.

A specific objection with appropriate magic words is always to be commended. But, ACCA points out that objections can sometimes be good enough without magic words.

We decline and find appellant preserved the error for our review. First, we are generally reluctant to find waiver of constitutional protections. United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011). Second, we are unaware of any requirement for opposing counsel to use a certain phrase to preserve an objection. Rather, the essential question is whether the objecting party sufficiently makes the grounds for objection known, so the trial judge can evaluate them. United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016). Opposing the exhibit's admission, the defense said, among other things, it was prepared "with an eye towards litigation." This is a central consideration for deciding whether a document is "testimonial" and qualifies for protection under the confrontation clause. Sweeney, 70 M.J. at 302. We are confident the trial judge recognized -- or at least should have recognized -- that appellant grounded a substantial part of his complaint in the Sixth Amendment. Therefore, we conclude appellant neither waived nor forfeited this constitutional objection.

ACCA evaluates the admissibility of Prosection 1, finding it fails the appropriate admissibility tests. The court reminds us that 

• The Sixth Amendment prohibits the admission of testimonial statements of a witness who did not appear at trial, unless the witness is unavailable to testify and the defendant had had a prior opportunity for cross examination.
  
• "{i]n determining whether a statement is testimonial hearsay, we assess whether it is 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." 

Here, appellee must withstand scrutiny on two pieces of ex parte information: the birth verification—a purported examination of a custodial record; and, the accompanying affidavit, which attempts to self-authenticate the former as a hearsay exception. Even a cursory review of the birth verification reveals it was created by government request [.] These are precisely the "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

(The [i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse") (citing Crawford, 541 U.S. at 56 n.7).)

Appellee argued before us the birth verification was filed in 2007 near the time of birth, and the document at trial was simply a copy of it. This was plainly incorrect and, not surprisingly, no witness so testified. Fundamentally, the government now asks us to find that a certifying affidavit proved a birth verification admissible under Mil. R. Evid. 803(9), where the underlying record it purportedly verified was inexplicably absent from trial. The Constitution and Mil. R. Evid. 803(9) require otherwise, though, lest a trial devolve into an exercise in multi-layered ex parte document gathering.

Orlando v. Nassau County DA.

SCOTUSblog.