Confrontation — Court-Martial Trial Practice Blog

Check out, Island Justice: Guam Supreme Court Opinion Reveals Important Hearsay & Confrontation Clause Principles, Professor Colin Miller, Evidence Prof Blog, 7 February 2009.

They discuss an interesting case of an assault victim. It was six days before police could interview her, and she was interviewed a second time after that. The police office was allowed to testify about her physical condition and what she said at each interview — statements which were not helpful to the accused, else why would we be talking about him. Quoting the Prof:

The court agreed with Jesus that Gadia was "unavailable" as that term is defined in Guam Rule of Evidence 804(a)(3)
because she testified to a lack of memory. But at the same time, the
court noted that the United States Supreme Court has found in United States v. Owens, 484 U.S. 554 (1988), that:

"The Confrontation Clause includes no guarantee that every witness
called by the prosecution will refrain from giving testimony that is
marred by forgetfulness, confusion, or evasion. [T]he Confrontation
Clause is generally satisfied when the defense is given a full and fair
opportunity to probe and expose these infirmities through
cross-examination, thereby calling to the attention of the factfinder
the reasons for giving scant weight to the witness' testimony."

Therefore, there was no Confrontation Clause problem with the admission of Gadia's statements.

However there is a hearsay issue.

According to the court, Gadia's first statement constituted an excited utterance under Guam Rule of Evidence 803(a)(2)
because it was "[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition."

Professor Miller then speaks to the timeliness of excited utterances. In the case discussed only the first statement came into evidence. We have plenty of military cases on this topic.

Persons are less likely to have concocted an untruthful statement when they are responding to the sudden stimulus of a startling event. United States v. Lemere, 22 M.J. 61, 68 (C.M.A. 1986). The implicit premise is "a person who reacts 'to a startling event or condition' while 'under the stress of excitement caused' thereby will speak truthfully because of a lack of opportunity to fabricate. United States v. Jones, 30 M.J. 127, 129 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); three-prong test:

    (1) the statement relates to a startling event,
    (2) the declarant makes the statement while under the stress of excitement caused by the startling event, and
    (3) the statement is "‘spontaneous, excited or impulsive rather than the product of reflection and deliberation.’"

United States v. Feltham, 58 M.J. 470 (C.A.A.F. 2003)(this Court has articulated a three-prong test for a statement to qualify as an excited utterance:

(1) the statement must be spontaneous, excited, or impulsive rather than the product of reflection and deliberation; (2) the event prompting the utterance must be startling, and; (3) the declarant must be under the stress of excitement caused by the event).

United
States v. Donaldson,
58 M.J. 477 (C.A.A.F. 2003). (statements made by a three-year-old to
her mother about indecent acts committed by the accused were admissible
as
excited utterances, even though 11 to 12 hours had elapsed after the
abuse,
where the accused had threatened to kill the child and her family if
she talked
about the abuse and where she was not alone with her mother during the
day).

For more on this topic, see Colin Miller, A Shock to the System, 12 WM. & MARY J. WOMEN & L. 49 (2005).