Army Court of Criminal Appeals

2/10/2023

United States v. Alsobrooks. The court finds the MJ erred in

admitting the victim's statement to a male friend that appellant raped her as both an excited utterance--however, there is no prejudice because it was admissible as a prior consistent statement.
admitting a prior consistent statement of the victim's description of the assault provided to a sexual assault nurse examiner. The medical exception did not apply because the facts show the victim went to hospital in order as part of reporting her allegations and not for a medical purpose. But again, that was not prejudicial.

United States v. Gloverstukes. An Article 62 appeal. The military judge had dismissed two allegations of assault because they failed to state an offense under Article 128b (DV). They

did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged:

SPECIFICATION 3: In that [appellant] did, at or near Cameron, North Carolina, on or about 13 May 2021, unlawfully pick up and throw the body of [the victim], an intimate partner of the accused, on a desk.

SPECIFICATION 4: In that [appellant] did, at or near Cameron, North Carolina, on or about 11 May 2021, unlawfully strike[the victim], an intimate partner of the accused, in the face with his hand.

The military judge ultimately concluded that because the specifications did not contain "direct, that is to say, express language to apprise the accused of the government's theory of criminality under Article 128b," the "omission of the words 'violent offense' .... constitute a failure to state an offense of domestic violence under Article 128b." During argument, the military judge also cut off trial counsel when he tried to argue lack of prejudice, ruling "I don't even reach prejudice on a jurisdictional issue."

ACCA finds the MJ erred. See United States v. Heng, No. ARMY 20210404, 2022 CCA LEXIS 377 (A. Ct. Crim. App. Jun. 24, 2022) (unpub.) for a discussion of the maximum sentence for 128b v. 128.

Donald G Rehkopf, Jr.

2/15/2023 13:27:19

The Alsobrooks case is yet another missed opportunity to clarify a muddy outright legal fiction. MRE 803(2), the so-called "Excited Utterance" exception is nothing more than a legal fraud perpetuated by Prof. Wigmore a century ago.

First of all, the definition of "hearsay" in MRE 801(c). defines it as: "a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement."
Thus, by definition, an "excited utterance" is just that--hearsay--notwithstanding MRE 803(2). While one arguably can quibble over whether or not it is a bona fide exception, the "excited utterance" promulgated by Wignore and his proteges, was/is based upon the false assumption that the cause of the utterance is the proverbial "startling event." Social science research over the last 25 years, has not only demonstrated that Wigmore's premise that such a startling event would only produce a TRUTHFUL excited utterance is not correct, but also that as the level of excitement (or intensity of the startling) increases, one's ability to recall with accuracy decreases or may even stimulate a false utterance. Cf. the "weapon focus" phenomena - if someone's pointing a gun at your head during a robbery, one focuses on the weapon and you may not remember the color of the robber's shirt.

The second significant issue with the concept of an excited utterance as being admissible, is of more recent vintage. The premise itself and most of the resulting case law of note, comes from the pre-Crawford, confrontation clause "revolution" era, and thus, fails to address whether or not such an "excited utterance" is testimonial or not. It goes without saying that a Constitutional prohibition takes precedence over an evidentiary rule.

For anyone seriously interested in this issue, to include the appellate judges reading this, check out the following scholarship:

Steven Baicker-McKee, The Excited Utterance Paradox, 41 Seattle Univ. L. Rev. 111 (2017). Available at:
https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=2445&context=sulr

Williams, Abolishing the Excited Utterance Exception to the Rule Against Hearsay, 63 Kansas L. Rev. 717 (2015). Available at:
https://kuscholarworks.ku.edu/bitstream/handle/1808/20291/8-WILLIAMS_EIC_FINAL.pdf?sequence=1

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