Mil. R. Evid. 803(3)

Prof. Colin Miller, another blogger to watch, brings us,

A good example of Rule 803(3) in action can be found in the recent opinion of the Ninth Circuit in United States v. Shen Zhen New World I, LLC, 2024 WL 4140629 (9th Cir. 2024). Finding error, albeit harmless on the facts.

During the Government's direct examination of Zheng, he testified that he had discussed with colleagues his concerns about Huang giving Huizar casino chips. On cross-examination, Zheng stated that he raised his concerns directly with Huang. When defense counsel asked Zheng about Huang's response, the district court sustained the Government's objection on hearsay grounds. The court erred in doing so.
Zheng's expected testimony falls under the state-of-mind exception to hearsay. Federal Rule of Evidence 803(3) allows for the admission of “[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional...condition (such as mental feeling...).” As the parties acknowledge, defense counsel sought to elicit Huang's out-of-court response to Zheng that Huang thought he and Huizar “were just having fun,” “not doing anything wrong,” and that he “had not asked...Huizar for anything.” Had Zheng been able to offer this testimony, it would have been probative not as to the truth of these statements but whether Huang felt culpable in his interactions with Huizar....Although Zheng could not testify as to the factual basis for Huang's mindset,...at least some of the excluded statements were probative of Huang's “then-existing state of mind” and “mental feeling” about his actions—admissible as an exception to the rule against hearsay. 

Speaking of rules of evidence, the FRAC package to Congress for 2024 of approved rules changes by the Chief Justice has the following recommendations, which Congress approves, will automatically become Mil. R. Evid. XXX, within 18 months of approval (with some exceptions)

Mil. R. Evid. 107: "At the Spring 2022 meeting, the Committee unanimously approved a proposal to add a new rule to regulate the use of illustrative aids at trial."

Mil. R. Evid. 613(b): The common law provided that before a witness could be impeached with extrinsic evidence of a prior inconsistent statement, the adverse party was required to give the witness an opportunity to explain or deny the statement. The existing Rule 613(b) rejects that “prior presentation” requirement. It provides that extrinsic evidence of the inconsistent statement is admissible so long as the witness is given an opportunity to explain or deny the statement at some point in the trial. It turns out, though, that most courts have retained the common law “prior presentation” requirement. These courts have found that a prior presentation requirement saves time, because a witness will often concede that she made the inconsistent statement, and that makes it unnecessary for anyone to introduce extrinsic evidence. The prior presentation requirement also avoids the difficulties inherent in calling a witness back to the stand to give her an opportunity at some later point to explain or deny a prior statement that has been proven through extrinsic evidence. The Committee has unanimously determined that the better rule is to require a prior opportunity to explain or deny the statement, with the court having discretion to allow a later opportunity (for example, when the prior inconsistent statement is not discovered until after the witness testifies).

Mil. R. Evid. Rule 804(b)(3) Corroborating Circumstances Requirement. An attempt to clarify or remove some confusion.

Ya gotta love the transparency in how the federal court and evidence rules sausages are made.