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Evidence-Res Gestae

Res gestae evidence is common in military sexual assault cases. Your military defense counsel must understand what is or is not admissible as res gestae evidence. Usually, when something is called res gestae, it is about “things done.” Some might refer to the concept as describing the environment of the crime. There are other situations where the acts are accompanied with words. Here again, res gestae evidence may be more likely to be admitted. 

You may have yet to hear the term much, partly because Mil. R. Evid. 803 and its exceptions have significantly increased the admissibility of what would be hearsay evidence and previously considered res gestae testimony. For example, the excited utterance in Rule 803(2), or the rule about a statement of a present sense impression under Rule 803(1).

Opportunity to advocate for the client

Most clients will decide not to testify. That’s their right and it may be the right thing for them to do. But what if they have said something during an interrogation or to a third party that could be helpful to the case. Military defense counsel should be arguing res gestae and similar exceptions allow the admission of the accused’s statements, regardless of Mil. R. Evid. 801’s general bar against admission of an accused’s statements by the defense. This can be particularly important when the prosecution cherry-picks some of the clients statements. This situation may cause you to want to introduce the words before and after the cherry-picked statement to put the statement in context or to explain it. That is where Rules 106 and 304 come in.

Military defense lawyers should also remember that if the prosecution introduces a part of the client’s statement, then Rules 106 and 304 allow you to require that the client’s complete or fuller statement be admitted. 

In many cases, the evidentiary rules substantially abolished the common law rule and allowed res gestae witness testimony. For example, Mil. R. Evid. 803 allows a statement while the person is then suffering from the stress of a traumatic event (and an excited statement made during a 911 call); and like Mil. R. Evid. 404(b), statements that may show the person state of mind or intent or reason for committing an offense.

For example, read United States v. Palmer, 55 M.J. 205, 207-08 (C.A.A.F. 2001); United States v. Hann, No. ACM 39374, 2019 CCA LEXIS 155, at *10 (A.F. Ct. Crim. App. Apr. 8, 2019); United States v. Moolick, 53 M.J. 174, 177 (C.A.A.F. 2000); United States v. Abel, No. ACM 39362, 2018 CCA LEXIS 617, at *10-11 (A.F. Ct. Crim. App. Dec. 27, 2018); United States v. Ayala, 81 M.J. 25, 28 (C.A.A.F. 2021); United States v. Jones, 30 M.J. 127, 129 (C.M.A. 1990); United States v. Donaldson, 58 M.J. 477, 484 (C.A.A.F. 2003); United States v. Henry, 81 M.J. 91, 97 (C.A.A.F. 2021).

Your military defense lawyers likely have read the above cases, and several new ones that have come out to broaden the definition of what is admissible as an excited utterance.

The most recent cases--a significant one--is United States v. Smith from CAAF. Generally, how close in time a statement is made is critical to deciding admissibility. The farther from the time of the alleged offenses, the more likely the person has had time to think and come up with a statement that is not true or is misleading. Smith makes the point that a person may be retraumatized about a prior sexual assault and then make an admissible excited utterance.

Generally, we are looking at a series of events over the entire course of a crime, from start to finish (including all relevant acts, events, and circumstances surrounding the crime itself). Thus, res gestae is essential for determining:

  1. Intent and motive: Do any acts or statements during the offense help understand the perpetrator’s or victim’s state of mind (and Mil. R. Evid. 404 would be relevant here)?
  2. Causation: Do the statements help connect the dots toward proving the accused committed the offense, or vice versa--such as showing consent or a mistake of fact about consent?
  3. Thinking of res gestae acts and statements can help when litigating multiplicity issues.
  4. Is the statement offered probative? Does the statement help prove a fact in issue?
  5. Is the statement admissible under another rule for a particular purpose? For example, excited utterances or statements of future intent?
  6. How close in time are any statements that are proffered?
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