CAAF and police reports.

United States v. Clayton, __ M.J. ___ (C.A.A.F. March 26, 2009).

In this case one police officer testified, and he was allowed to testify about his personal knowledge of drugs found. However, the military judge also allowed the witness to lay a foundation for a redacted translation of a German police report of drugs found and their place of finding by other police officers and a civilian. The other police officers and the civilian were not called as witnesses and they had apparently not testified at an Article 32, UCMJ, hearing or in a deposition.

Most pertinent to this case, the Supreme Court has identified “‘statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’” as an example of “core” testimonial hearsay. Rankin, 64 M.J. at 351 (quoting Crawford, 541 U.S. at 52). In turn, this Court has established “a number of questions . . . relevant in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial.” Id. at 352.

First, was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry? Second, did the statement involve more than a routine and objective cataloging of unambiguous factual matters? Finally, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial? Id.; see also United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008); Foerster, 65 M.J. at 123.