Petition for Writ of Certiorari — Martindale v. United States

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Supreme Court, U.8.

FILED

‘') 941065 DEC 151994

No, OBfICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

RONALD E. MARTINDALE, U.S. NAVY, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

PHILIP L. SUNDEL

Lieutenant, Judge Advocate

General’s Corps

U.S. Naval Reserve

Counsel of Record

JOHN F. HAVRANEK

Captain, U.S. Marine Corps

NAVY-MARINE CORPS APPELLATE

DEFENSE DIVISION

Washington Navy Yard

Washington, D.C. 20374-1111

(202) 433-4161

LISA HIGDON MACPHEE

Washington, D.C.

QUESTIONS PRESENTED

CAN A WITNESS BE UNAVAILABLE FOR

HEARSAY PURPOSES, BUT AVAILABLE FOR

CONFRONTATION PURPOSES?

CAN A COURT CONSIDER CORROBORATING

EVIDENCE IN DETERMINING THE RELIABILITY

OF A HEARSAY STATEMENT UNDER A

RESIDUAL EXCEPTION TO THE HEARSAY RULE

WHEN CONFRONTATION IS NOT AT ISSUE?

TABLE OF CONTENTS

Page

CE POT 6b a cn cascececteaens ewe l

ES a 2

CONSTITUTIONAL PROVISIONS AND

ioe G6 Rs |: > Br 3

BIAIEMEN!T OF THE CASE ........2.0006. 3

REASONS FOR GRANTING THE WRIT

©! A WitNSSS CANNOT SBE

UNAVAILABLE FOR HEARSAY

PURPOSES, BUT AVAILABLE FOR

CONFRONTATION PURPOSES. ........ 5

Il. A COURT SHOULD NOT CONSIDER

CORROBORATING EVIDENCE IN

DETERMINING THE RELIABILITY OFA

HEARSAY STATEMENT UNDER A

RESIDUAL EXCEPTION TO THE

HEARSAY RULE WHEN

CONFRONTATION IS NOT AT ISSUE. ... 15

EE cA OS 6s oA a doe 04 48 eee 5 20

APPENDIX A (Opinion of the U.S Court of Military

I OE TN yin ald vie Ha ANH one oe es la

APPENDIX B (Opinion of the U.S. Navy-Marine

Corps Court of Military Review) .............. 6a

(iii)

APPENDIX C (Order of the U.S Court of Military

f BPUPERTELEC TL eee ee ee 33a

CPP erErrTrerrr ere? eee 35a

APPENDIX E (Opinion of the U.S. Navy-Marine

Corps Court of Military Review) ............. Sla

APPENDIX F (Order of the U.S Court of Military

| MTP ET COUT CTs ee ee or eee Ce 56a

APPENDIX E (Opinion of the U.S. Navy-Marine

Corps Court of Military Review) ............. 57a

TABLE OF AUTHORITIES

Cases:

California v. Green, 399 U.S. 149 (1970) ........ 8

Coy v. Iowa, 487 U.S. 1011 (1988) ............ 8

Doe v. United States, 976 F.2d 1071 (7th Cir. 1992) . 16

Douglas v. United States, 380 U.S. 414 (1965) ..... 12

Huff v. White Motor Corp., 609 F.2d 286 (7th Cir

Sete) as Sed ad oo ee ees ie we ees 16

Idaho v. Wright, 497 U.S. 805 (1990) ....... passim

Mattox v. United States, 156 U.S. 237 (1895) ..... 8

Ohio V. Roberts, 448 U.S. 56 (1980) ........... 7

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ...... f

United States v. Fensterer, 474 U.S. 15 (1985) .... 11

United States v. Inadi, 475 U.S. 387 (1986) ... 12, 13

United States v. Owens, 484 U.S. 554 (1988) ... 9, 12

United States v. Valdez-Soto, 31 F.3d 1467 (9th Cir.

AFD ncacee eens BUR 78s 4 eee 16

White v. Illinois, 112 S.Ct. 736 (1992) ....... 9, 12

United States v. Martindale, 30 M.J. 172

Ce AEE Wanted es ei Weekes eves ee ee

United States v. Martindale, 36 M.J. 870 (N.M.C.M.R.

CE ee ed oA ERE Oana ae ee passim

United States v. Martindale, 40 M.J. ——- (C.M.A.

86 eS 8 eee ee Ce O08 Sh passim

Constitutional Provisions:

U.S. Constitution, amendment V_.......... passim

U.S. Constitution, amendment VI .......... passim

Statutes and Rules:

Asticle 125, U.C.MJ., 10 U.3.C.§ 925 ......... 5

Article 134, U.C-MLJ., 10 U.E.C. § 934 ......... 5

Article 80, U.C.MJ., 10US.C.§ 860 ......... 5

Military Rule of Evidence 803 ............ passim

Military rule of Evidence 804 ............. passim

Sa ae a CE bo OA ee een we eae a

(v)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No. 94-

RONALD E. MARTINDALE, U.S. NAVY, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The September 15, 1994 opinion of the United

States Court of Military Appeals [hereinafter the C.M.A.]',

United States v. Martindale,40 M.J.__, (C.M.A. 1994),

is reprinted as Appendix A.

The January 11, 1993 opinion of the Navy-Marine

Corps Court of Military Review [hereinafter the

' The United States Court of Military Appeals has been renamed

the United States Court of Appeals for the Armed Forces. All cases

relevant to this petition were decided before the name change, so the

original name of the court is used in this petition.

(1)

N.M.C.M.R.]*, United States v. Martindale, 36 M.J. 870

(N.M.C.M.R. 1993), is reprinted as Appendix B.

The September 19, 1990 order setting aside the July

12, 1990 decision of the C.M.A. and the January 6, 1989

decision of the N.M.C.M.R., and remanding the case to the

N.M.C.M.R. for reconsideration, United States v.

Martindale, 32 MJ. 33 (C.M.A. 1990) (summary

disposition), is reprinted as Appendix C.

The July 12, 1990 decision of the C.M.A., United

States v. Martindale, 30 M.J. 172 (C.M.A. 1990), is

reprinted as Appendix D.

The January 6, 1989 decision of the N.M.C.M.R.,

United States v. Martindale, No. 85 0771R (N.M.C.M.R.

January 6, 1989), is reprinted as Appendix E.

The June 16, 1987 order setting aside the December

30, 1985 decision of the N.M.C.M.R., and remanding the

case for reconsideration, United States v. Martindale, 24

M.J. 405 (C.M.A. 1987) (summary disposition), is

reprinted as Appendix F.

The December 30, 1985 decision of the

N.M.C.M.R., United States v. Martindale, No. 85-0771

(N.M.C.M.R. Dec. 30, 1985), is reprinted as Appendix G.

JURISDICTION

The United States Court of Military Appeals

affirmed the decision of the United States Navy-Marine

Corps Court of Military Review on September 16, 1994.

Title 28 U.S.C. § 1259(3) provides jurisdiction in this case

and entitles petitioner to seek review of the United States

Court of Military Appeals’ decision.

The Navy-Marine Corps Court of Military review has been

renamed the Navy-Marine Corps Court of Criminal Appeals. All cases

relevant to this petition were decided before the name change, so the

original name of the court is used in this petition.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fifth Amendment provides:

No person shall be . . . deprived of life,

liberty, or property without due process of

law.

The Sixth Amendment provides:

In all criminal prosecutions, the accused

shall enioy the right . . . to be confronted

with the witnesses against him.

STATEMENT OF THE CASE’

While attending a meeting of Overeaters

Anonymous, petitioner told his counselor that he had

sexually abused his 12 year old son. Petitioner

subsequently gave a confession to agents of the Naval

Investigative Service [hereinafter N.I.S.], the criminal

investigative agency of the U.S. Navy.

As a result of petitioner’s statements, petitioner’s

son, Sean, was interviewed for two hours by N.L.S. agents,

who tape recorded the interview. A transcript of the tape

recorded interview was prepared. This transcript was the

only evidence which corroborated petitioner’s confession.

The government offered the transcript into evidence

at trial. The defense objected. An evidentiary hearing was

held, and Sean testified. Sean stated that he did not

remember any of the alleged incidents with his father and

’ This statement of the case is drawn from United States v.

Martindale, 36 M.J. 870 (N.M.C.M.R. 1993), citing United States v.

Martindale, 30 M.J. 172 (C.M.A. 1990), vacated, United States v.

Martindale, 32 M.J. 33 (C.M.A. 1990) (summary disposition).

that he was not sure what he had told the N.I.S. Agents

during the interview. He also testified that he "just made

up things" during the interview, and that "it’s a lie - what

they said."

At the end of the evidentiary hearing, the

government sought to have Sean declared unavailable and

offered his statement to the N.I.S. agents under the residual

hearsay exception of Military Rule of Evidence (hereinafter

Mil. R. Evid.] 804(b)(5).* The defense requested that the

declarant be declared available, that the government be

required to call the declarant on the merits, and that the

hearsay statement be suppressed as unreliable.

The military judge found that Sean was unavailable

as a witness due to his failed memory and a perceived

refusal to testify. The military judge ruled that Sean’s

recorded interview was admissible under either of the

residual hearsay provisions of the Military Rules of

Evidence; 803(24) or 804(b)(5). The trial judge did not

state which guarantees of trustworthiness he found that

made this evidence admissible as residual hearsay.

The judge, after declaring the declarant unavailable

for hearsay purposes, then stated that the declarant was

available for confrontation purposes. The judge stated that

if the defendant wished to cross-examine the declarant the

court would require the government to call the declarant,

and although the government would not ask the declarant

any questions the petitioner’s right to cross-examine the

References to the rules of evidence in this petition are to the

Military Rules of Evidence. All of the Military Rules of Evidence

relevant to petitioner’s case, however, are identical to the corresponding

Federal Rules of Evidence, as they are required to be absent specific

action by the President. See Article 36, Uniform Code of Military

Justice, Manual for Courts-Martial, 1984 [hereinafter U.C.M.J.], 10

U.S.C. § 836. Therefore, the issue presented in this petition is also

applicable to federal civilian practice.

declarant would not be limited in any way. The defense

did not elect to cross-examine Sean. Petitioner’s

confession was also admitted into evidence.

Petitioner, contrary to his pleas, was found guilty of

one specification of attempted sodomy in violation of

Article 80, U.C.M.J., 10 U.S.C. § 880, one specification of

committing an indecent act with a minor in violation of

Article 134, U.C.M.J., 10 U.S.C. § 934, and thirteen

specifications of sodomy in violation of Article 125,

U.C.M.J., 10 U.S.C. § 925. The only evidence against

petitioner was the transcript of Sean’s interview and

petitioner’s confession.

Petitioner was sentenced to five years of

confinement, a dishonorable discharge, and reduction to

pay grade E-1.

REASONS FOR GRANTING THE WRIT

A WITNESS CANNOT BE UNAVAILABLE FOR

HEARSAY PURPOSES, BUT AVAILABLE FOR

CONFRONTATION PURPOSES.

The court below found that Sean, the only witness

against petitioner, was unavailable for hearsay purposes but

available for confrontation. In doing so, the court ignored

the plain meaning of both the rules of evidence and the

Sixth Amendment. The holding violated petitioner’s Sixth

Amendment right to confrontation, and his Fifth

Amendment right to due process. The holding has

redefined the meaning of availability in such a way that a

defendant can now be convicted based on what would

otherwise be inadmissible hearsay, without ever having a

meaningful opportunity to face the witnesses against him.

The court below affirmed the trial court’s ruling

that because Sean either did not remember the events in

—

question, or was unwilling to testify as tc those events, he

was unavailable within the meaning of Mil. R. Evid.

804(a)(2) and 804(a)(3). Appendix A _ [hereinafter

Martindale II at 2a (citing United States v. Martindale, 36

M.J. 870, 880-81 (N.M.C.M.R. 1993) [hereinafter

Martindale I|). For the same reasons the court agreed that

the hearsay statement to N.I.S. was the most probative

evidence available, and was admissible under Mil. R. Evid.

804(b)(5). Martindale II at 3a (citing United States v.

McGrath, 39 M.J. 158, 166-67 (C.M.A. 1994), cert. denied

63 U.S.L.W. 3340 (U.S. October 31, 1994) (No. 94-190);

Martindale I at 880-81). Additionally, the court ruled that

because Sean was physically present at trial and subject to

cross-examination, petitioner was provided’ with

confrontation. Jd. at 3a (citing Martindale I at 875).

Finally, the court held that because Sean was available for

cross-examination, the statement did not itself have to be

sufficiently reliable to satisfy confrontation, so /daho v.

Wright, 487 U.S. 805, 814-15 (1990), did not apply.’ Jd.

at 2a (citing McGrath, 39 M.J. at 163-67;3 Martindale I at

873-81).°

> The court took pains to find that Wright did not apply, because

had it applied, the statement would have been inadmissible. See

Martindale II at 4a-5a (Wiss, J., dissenting); Martindale J at 881 (four of

eight factors court looked to to find statement admissible violated

Wright), Martindale, 30 M.J. 176 (Everett, C.J., dissenting).

been admissible under Mil. R. Evid. 803(24). This was a mistaken belief

based on the fact that for most purposes Mil. R. Evid. 803(24) and Mil.

R. Evid. 804(b)(5) are identical. The mistake was that while both

residual exceptions apply the same test for admissibility, under Mil. R.

Evid. 803(24) the declarant could be available, so the hearsay must be

more probative than testimony which an available witness could provide.

If Sean had been available to testify, however, the hearsay statement most

The lower court’s holding is based on this Court’s

precedents stating that a different inquiry into the

admissibility of a hearsay statement applies when hearsay

must also satisfy confrontation. Ohio V. Roberts, 448 U.S.

56 (1980); Idaho v. Wright, 497 U.S. 805 (1990). The

court below took this Court’s holdings regarding

confrontation and hearsay one step further, and ruled that

the inquiry into the availability of a witness can also vary

depending on whether the availability is for hearsay or

confrontation. Martindale II, 2a-3a (citing McGrath, 39

M.J. at 161-67; Martindale I at 873-81 (both cases

holding that a witness can be unavailable for hearsay

purposes and available for confrontation)). The court held

that Sean was unavailable for hearsay purposes, but

available for confrontation. Jd. Petitioner, however, does

not believe that this Court intended its cases to mean that

a witness can be unavailable and available simultaneously.

Such an application, as petitioner’s own case demonstrates,

permits an analysis which denies a defendant basic

constitutional rights, and circumvents the rules of evidence.

I. The confrontation problem: direct examination.

This Court has stated that "[t]he Confrontation

Clause provides two types of protection for a criminal!

defendant: the right physically to face those who testify

against him, and the right to conduct cross-examination."

Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (plurality

opinion). Indeed, this Court wrote almost 100 years ago

that:

likely would not have been the most probative evidence available, rather

the live testimony would have been. It was only because Sean was

unavailable under Mil. R. Evid. 804 that the hearsay became the most

probative evidence available.

The primary object of [the Sixth

Amendment] was. . . a personal examination

... of the witness, in which the accused has

an opportunity . . . of compelling him to

stand face to face with the jury in order that

they may look at him, and judge by . . . the

manner in which he gives his testimony

whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-243 (1895).

The plain meaning of the Confrontation Clause is the right

of a defendant to confront face-to-face the witnesses

against him. California v. Green, 399 U.S. 149, 155

(1970) ("Our own decisions seem to have recognized at an

early date that it is this literal right to *confront’ the

witness at the time of trial that forms the core of the values

furthered by the Confrontation Clause."); Coy v. lowa, 487

U.S. 1011, 1021 (1988) ("The irreducible literal meaning

of the Clause: ’a right to meet face to face all those who

appear and give evidence at trial.’" (citation omitted)).

In a case with an unavailable declarant, the

defendant will never have the opportunity for face-to-face

confrontation with the witness against him. Indeed, it is

impossible to confront that witness face-to-face, because

the plain meaning of a witness being unavailable is that the

witness does not testify. By definition, that witness cannot

testify. That is why the witness is unavailable. A non-

testifying witness cannot possibly provide confrontation,

because there can be no confrontation with a witness who

does not testify. It is contrary to the plain meaning of both

the Sixth Amendment and the rules of evidence for a court

to conclude that a witness can be unavailable to testify but

still provide a defendant with confrontation.

Petitioner’s case illustrates this lack of

confrontation. In the view of the lower court, the only

testimony Sean could have given, either on direct or cross

examination, was that he did not remember the incidents

that petitioner was charged with, and that he did not

remember the interview with N.I1.S. Martindale I] at 874-

75. In short, had Sean taken the stand at any time on the

merits, he would simply have proven that he was

unavailable. Testifying as to this lack of memory would

not have made Sean a witness against petitioner. See

White v. Illinois, 112 S.Ct. 736, 745 (1992) ("As applied

in the Sixth Amendment context of a prosection, the noun

’witness’ .. . [means] ’one who gives testimony,’ i.e. ’[i]n

judicial proceedings, [one who] make[s] a solemn

declaration under oath, for the purpose of establishing or

making proof of some fact to a court.’ (citation omitted)

(Thomas, J., and Scalia, J., concurring in part and

concurring in the judgement)). The fact that Sean could

not or would not remember the events in question was not

what convicted petitioner. Petitioner was convicted based

on what Sean had allegedly remembered when he spoke to

N.LS, rather than on what he did not remember at trial.

Martindale I at 873 (citing United States v. Martindale, 30

M.J. 172, 173 (C.M.A. 1990), vacated United States v.

Martindale, 32 MJ. 33 (C.M.A. 1990) (summary

disposition)). Thus, for the very reason that Sean was

found to be unavailable, such testimony as he could have

given would not have provided petitioner with face-to-face

confrontation.

The only way petitioner could have been afforded

actual face-to-face confrontation at trial was for Sean to

testify about the incidents in question, or at least about the

hearsay statement. Had Sean remembered the alleged

incidents, and testified to them, then there would have been

confrontation. Had he not remembered the incidents, but

remembered and adopted the hearsay statement, then

perhaps there would have been confrontation. See United

States v. Owens, 484 U.S. 554 (1988) (admission of non-

hearsay statement of witness identifying attacker, and

testimony of same witness, who no longer remembered

identity of attacker but remembered identifying attacker

previously, satisfied confrontation). Since Sean neither

remembered the incidents, nor remembered the hearsay

statement, there could never be confrontation.

II. The confrontation problem: cross-examination.

Further, it is doubtful that an unavailable witness

can satisfy a defendant’s right to cross-examination. There

is no opportunity for effective cross-examination of a

witness who is unavailable because he cannot or will not

remember the events in question. Again, unlike in Owens,

where the witness in effect adopted the statement (and

where the statement was not hearsay to begin with), in

petitioner’s case cross-examination on the contents of the

statement was impossible. The witness simply could not

or would not remember either the events alleged in the

statement or the making of the statement itself. Thus, the

only cross-examination available to petitioner would have

been the exact statements which rendered the witness

unavailable: "I don’t remember." It is unreasonable to

believe that cross-examination of an unavailable declarant,

which results in statements which define the declarant’s

unavailability, is in fact cross-examination.

If cross-examination of a declarant who is

unavailable due to lack of memory satisfies confrontation,

then the mere opportunity to cross-examine an insane

declarant would also satisfy confrontation. Under Mil. R.

Evid. 804(a)(4), such a declarant would be unavailable for

hearsay purpceses, and a hearsay statement of that witness

would be admissible under Mil. R. Evid. 804(b)(5). In

such a case, the declarant would be physically present, and

able to answer questions, but the answers would make no

sense. Based on the lower court’s logic in petitioner’s

case, despite the fact that the witness is unavailable

because he is insane, that very same insane witness is

available for confrontation purposes. Further, because the

insane witness can and will answer questions, the

defendant’s right to confrontation has been satisfied -- the

right is for the opportunity of effective cross-examination,

not effective cross-examination.

The opportunity to cross-examine an insane

declarant, however, or one who is unavailable for another

reason, does not satisfy confrontation. A decision that the

opportunity to cross-examine an unavailable declarant

satisfies the Sixth Amendment is a decision that places

form over substance. It is a decision that creates a system

in which a meaningless opportunity has swallowed up the

intent of the constitutional right. Such a system has

"effectively . . . emasculate[d] the right [to] confrontation

itself." See United States v. Fensterer, 474 U.S. 15, 19

(1985) (per curiam). Such a system has now been created

by the lower court.

III. The due process problem: shifting the burden.

Additionally, a system which finds _ that

confrontation has been satisfied by the opportunity to

cross-examine an unavailable witness also denies a

defendant due process. It is a fundamental principle of our

criminal justice system that the defendant need do nothing,

because the government has the burden of proving him

guilty, rather than the defendant having the burden of

proving his innocence. The lower court, however, in

ruling that the opportunity to cross-examine an unavailable

witness on a hearsay statement satisfied confrontation,

ignored that basic principle. Even assuming that such an

opportunity does satisfy confrontation, a defendant must

first know what the declarant’s position is on that

statement. See e.g. Douglas v. United States, 380 U.S.

414, 420 (1965) ("[e]ffective confrontation of [a hearsay

declarant] was possible only if [the declarant first] affirmed

the statement as his.").

As in any case, there must first be direct testimony

before there can be cross-examination. See White, 112

S.Ct. at 745 (Thomas, J., and Scalia, J., concurring in part

and concurring in the judgement). The defendant must

know whether the witness is now saying, at trial, that the

events alleged in the statement are true, before he can

conduct cross-examination. If the witness adopts the

statement, then the contents of the statement have become

evidence. See Owens, 484 U.S. at 554. But it is only the

government, not the defendant, that wants the contents of

the statement to be evidence. In creating the system which

it did, the lower court placed on a defendant the burden of

asking the government’s questions for it, as well as asking

cross-examination questions for himself.

If the witness denies the statement, then the

statement was not admissible in the first place, because

then it was simply an inadmissible prior inconsistent

statement. If the witness refuses to answer questions, or

claims a lack of memory, then there is still no testimony

on which to conduct cross-examination. Regardless of how

the declarant testifies, the defendant will still have been

required to conduct the direct examination for the

government. This is an impermissible shifting of the

burden. It requires a criminal defendant to take actions

which the government would normally be responsible for;

the direct examination of a government witness, before that

defendant can exercise his constitutional right; the cross-

examination of a government witness. See e.g. United

States v. Inadi, 475 U.S. 387, 408-09 (1986) (Marshall, J.,

and Brennan, J., dissenting).

IV. The due process problem: equal access to witnesses.

Finally, the decision of the court below also violated

petitioner’s right to due process because it denied him

equal access to the witness. The declarant was found

unavailable to the government for hearsay purposes, so the

government was allowed to use the hearsay statement.

Martindale I at 877, 881. The declarant was found

available to the defendant for cross-examination, so the

hearsay statement in question was found to be admissible,

despite the fact that it did not satisfy confrontation.

Martindale II at 2a-3a. One of the reasons that a

defendant is entitled to cross-exaimination, however, is the

possibility that the witness may testify favorably for the

defendant, or at least the possibility that the witness’

testimony on cross-examination will lessen the impact of

the testimony on direct. Thus, the court below ruled that

Sean was unavailable to give testimony for the

government, but available to give testimony for the

defendant. |

The problem with this holding is that both parties

are entitled to equal access to w.-nesses and evidence. A

situation should not arise were one party has access to

testimony of a witness, and the other does not. J/nadi, 475

U.S. at 408-09 (1986) (Marshall, J., and Brennan, J.,

dissenting). Usually, making a witness available for a

defendant but unavailable for the government, while it

would deny a defendant equal access, might not violate due

process. In petitioner’s case it did violate due process,

because the evidence which petitioner had available to him

was functionally meaningless. It was simply Sean’s

testimony that he did not remember the events in question.

The government, on the other hand, by being "denied"

access to Sean’s in-court testimony, was in reality provided

access to his hearsay statement, which it would not

otherwise have had access to. Thus, by providing unequal

access to the two parties, the court below denied petitioner

due process.

V. Waiver.

The lower court erred in finding that petitioner

waived his right to confrontation by choosing not to cross-

examine the unavailable declarant, Martindale II at 3a, for

the same reasons that it erred in finding that a witness

unavailable for hearsay purposes was available for

confrontation. Before the opportunity to cross-examine

even arose, petitioner had been denied his right to face-to-

face confrontation. Further, the opportunity to cross-

examine an unavailable declarant was a meaningless

opportunity. Finally, in order to cross-examine the

declarant, petitioner would first have had to conduct direct

examination. The job of conducting direct examination of

a government witness is not the defendant’s burden, and

cannot be imposed prior to a defendant’s right to conduct

cross-examination. Petitioner waived nothing when he

chose not to cross-examine Sean.

Had the hearsay statement satisfied one of the

enumerated exceptions to the hearsay rules, or if it had

been admissible under a residual exception, then the right

to confrontation would have been satisfied in petitioner’s

case. Mil. R. Evid. 803; Mil. R. Evid. 804; Wright, 487

U.S. at 821. The hearsay statement in question, however,

was not admissible under an enumerated exception, and it

did not possess sufficient indicia of reliability by virtue of

its inherent trustworthiness to satisfy confrontation, so it

was not admissible under a residual exception.

The only way that the government was going to be

allowed to use the hearsay statement was if that statement

was found to be admissible despite its lack of sufficient

indicia of reliability. In order to find it admissible, the

lower court was forced to violate the plain meaning of the

rules of evidence and the Sixth Amendment, violate

petitioner’s right to confrontation and due process, and

circumvent the application of the rules of evidence. In

making the hearsay statement in petitioner’s case

admissible, the lower court has created a new procedure by

which a defendant can be convicted without ever being

provided with confrontation.

The opinion of the lower court cannot stand. The

lower court found support for its approach to availability

in this Court’s precedent. Thus, it is important that this

Court address the issue of whether a witness can be

unavailable for hearsay purposes, but available for

confrontation purposes.

A COURT SHOULD NOT CONSIDER

CORROBORATING EVIDENCE IN DETERMINING

THE RELIABILITY OF A HEARSAY STATEMENT

UNDER A RESIDUAL EXCEPTION TO THE

HEARSAY RULE WHEN CONFRONTATION IS

NOT AT ISSUE.

Prior to Wright "[m]ost federal courts [had] looked

to the existence of corroborating evidence or the lack

thereof to determine the reliability of hearsay statements

not coming within one of the traditional hearsay

exceptions." Wright, 497 U.S. at 829 (Kennedy, J.,

dissenting).

Wright established that when a party seeks to introduce

a statement under a residual exception to the hearsay rule,

constitutional concerns require the reliability of the hearsay

statement to be determined solely by the circumstances

surrounding the making of the statement. /d. at 822. The

question remains, however, whether the Wright test for

determining hearsay reliability is applicable when a

Confrontation Clause question does not exist.

The United States Court of Military Appeals and the

United States Court of Appeals for the Ninth Circuit have

both stated that once confrontation has been satisfied the

test for reliability will not be limited to the circumstances

surrounding the making of the hearsay statement, and

reliability can be determined by the use of corroborating

evidence. See McGrath, 39 M.J. at 165-66; United States

v. Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994).

The Ninth Circuit in Valdez-Soto found:

In the absence of concerns about the

accused’s right to confrontation, the trial

judge has a fair degree of latitude in

deciding whether to admit statements under

Fed.R.Evid. 803(24) . . . we’ve recognized

that corroborating evidence is a_ valid

consideration in determining the

trustworthiness of out-of-court statements for

purposes of Rule 803(24).

Valdez-Soto, 31 F.3d at 1471.

The decisions of the United States Court of Military

Appeals and the United States Court of Appeals for the

Ninth Circuit are contrary to decisions of the United States

Court of Appeals for the Seventh Circuit in Huff v. White

Motor Corp., 609 F.2d 286 (7th Cir. 1979) (corroborating

evidence is not relevant to the admissibility of a statement

under a residual exception to the hearsay rule); Doe v.

United States, 976 F.2d 1071 (7th Cir. 1992) (the court

applies a Wright analysis in a civil case in which the

Confrontation Clause is not applicable); and this Court’s

decision in Wright. This Court in Wright quoted Huff for

the proposition that "[t]he circumstantial guarantees of

trustworthiness on which the various specific exceptions to

the hearsay rule are based are those that existed at the time

the statement was made and do not include those that may

have been added by those using hindsight." Wright, 497

U.S. at 820.

By quoting Huff, the question was left open whether

this Court intended to limit the consideration of indicia of

reliability to the circumstances surrounding the making of

the statement, regardless of whether the Confrontation

Clause is at issue.

The dissent in Valdez-Soto did reason that this Court

indicated, in the absence of a Confrontation Clause issue,

that hearsay should not be admitted on the basis of

corroboration. Valdez-Soto, 31 F.3d at 1476 (Zilly, J.,

dissenting). The dissent in Valdez-Soto found additional

authority for prohibiting the use of corroborating evidence

from the legislative history of the Senate Judiciary

Committee when the committee reported:

It is intended that the residual hearsay

exceptions will be used very rarely, and only

in exceptional circumstances. The

committee does not intend to establish a

broad license for trial judges to admit

hearsay statements that do not fal) within

one of the other exceptions contained in

rules 803 and 804(b). The residual

exceptions are not meant to authorize major

judicial revisions of the hearsay rule,

including its present exceptions. Such major

revisions are best accomplished by

legislative action.

Id. at 1477 (citation omitted).

In the present case, the lower courts relied upon

corroborating evidence to determine the reliability of the

hearsay statement. The use of corroborating evidence in

this matter was erroneous and requires reversal of

petitioner’s conviction.

In addition to the language in Wright, the reasoning

behind the rules of hearsay also suggest that corroborating

evidence should not be considered. Military Rules of

Evidence 803(1)-(23) and 804(b)(1)-(4) all determine

reliability by examining the circumstances surrounding the

making of the statement. Looking to the circumstances

surrounding the making of the statement is the analysis by

which we have received the enumerated exceptions to the

hearsay rule. Wright, 497 U.S. at 820 (discussing some of

the enumerated exceptions and describing the basis for

their reliability); McGrath, 39 M.J. at 172 (Wiss, J.,

dissenting) (exceptions under 804(b)(1)-(4) and 803(1)-(23)

in every instance base reliability on some type of

circumstance surrounding the making of the statement).

Therefore, the wording of Mil .R. Evid. 803(24) and

804(b)(5) indicates that statements considered under it

should meet the same requirements establishing the other

exceptions to the hearsay rule, even when the

Confrontation Clause is not at issue. The plain meaning of

803(24) and 804(b)(5) dictates that statements offered

under these rules should at a minimum contain reliability

that is equivalent to the enumerated exceptions. When a

hearsay statement is sought to be admitted pursuant to a

residual exception the courts should not have to lower the

standards of reliability to find admissibility.

Further, a number of the enumerated exceptions

have been labeled as "firmly rooted" exceptions. This

Court has recognized that statements admitted under a

"firmly rooted" hearsay exception are so trustworthy that

adversarial testing would add little to their reliability.

Wright 497 U.S. at 821. In determining the reliability for

a non-firmly rooted exception under 803(24) or 804(b)(5),

the statement should be subjected to the same scrutiny as

the firmly rooted exceptions. Mil. R. Evid. 803(24) and

804(b)(5) specifically provide that for a statement to be

admitted under this exception it must have "equivalent

circumstantial guarantees of trustworthiness."

Concerning trustworthiness this Court stated in

Wright that:

Because evidence possessing "particularized

guarantees of trustworthiness" must be at

least as reliable as evidence admitted under

a firmly rooted exception we think that

evidence admitted under the former

requirement must similarly be so trustworthy

that the adversarial testing would add little

to its reliability.

Id. at 821 (citation omitted). Our judicial system views

with such disfavor the use of hearsay evidence that it is

specifically prohibited by Mil. R. Evid. 802. Mil. R. Evid.

803 and 804 provide exceptions to this prohibition in

certain instances that guarantee reliability and

trustworthiness.

Thus, not only should the residual hearsay

exceptions possess equivalent guarantees of reliability and

trustworthiness as those found in the other enumerated

exceptions, they should possess the equivalent guarantees

of reliability and trustv’orthiness as these found in the

firmly rooted exceptions. The vehicle by which this

protection should be provided is to look to the

circumstances surrounding the making of the statement and

not by bootstrapping reliability to some other extrinsic

evidence.

The court below lowered the standard of admissibility

to bootstrap in an otherwise unreliable statement. The use

of corroborating evidence was the only means by which

the lower court could establish reliability. | When

petitioner’s case first appeared before the United States

Court of Military Appeals the court found reliability from

the "entire record," while Chief Judge Everett in his

dissenting opinion stated, "I find the circumstances

surrounding the statement to be quite the contrary."

Martindale, 30 M.J. at 176 (Everett, C.J., dissenting).

Chief Judge Everett analyzed the circumstances

surrounding the making of the statement in depth, and

rightly concluded that the statement was unreliable. /d.

Bootstrapping corroborating evidence, as the courts below

have consistently had to do to justify finding the statement

admissible, does not in reality alter the reliability of the

statement. See Wright, 497 U.S. at 823-24.

When looking at the facts that surround the making

of the hearsay statement in this case it becomes quite

obvious that the statement does not contain "particularized

guarantees of trustworthiness," "circumstantial guarantees

of trustworthiness," or any shred of reliability. In fact, the

circumstances surrounding the making of this statement are

more suspect and less reliable than the circumstances

surrounding the statement in Wright. Consequently,

corroborating evidence should not be considered even

when the right to confrontation is not at issue.

CONCLUSION

The lower court has developed an analysis of

unavailability which has resulted in a twisting of the rules

of evidence, and a trial procedure that violates the

Constitution. Further, the court has greatly expanded the

class of admissible hearsay statements, to now include

statements which do not contain indicia of reliability

equivalent to statements admitted under an enumerated

exception. This Court should address the question of

whether either of these procedures is permissible.

Respectfully submitted,