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Evidence-Res Gestae

Res gestae usually refers to “things done.” Some might refer to the concept as describing the environment of the crime. You haven’t heard the term much lately, partly because Mil. R. Evid. 803 and its exceptions have significantly increased the admissibility of what would be hearsay evidence.


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.


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.


I. Is the utterance an operative fact that, of itself or in combination with others, creates a legal relation without which the legal relation would not arise?


2. Does the utterance, regardless of its truth, have probative value upon the question of the existence or non-existence of a material fact—that is, an operative fact or a fact evidential of an operative fact?


3. Does the operative effect of non-verbal conduct depend upon verbal conduct accompanying it? Here, the non-verbal conduct is ambiguous, and the verbal conduct resolves, or tends to resolve, the ambiguity. The utterance may be and frequently is, an operative fact.


4. Does the operative effect of non-verbal conduct depend upon the intent accompanying it? As in the preceding class, the non-verbal conduct is ambiguous. The actor’s intent at the time of the act is an operative fact.


5. Is the utterance a direct declaration of a presently existing mental condition, made naturally and without circumstances of suspicion? The utterance offered for its truth is hearsay, but it is now generally recognized as competent as an exception to the hearsay rule.


6. Is the utterance contemporaneous with a non-verbal act, independently admissible, relating to that act and throwing some light upon it?


7. Was the utterance made concerning a startling event by a declarant laboring under such stress of nervous excitement caused by that event to make such utterance spontaneous and unreflective? As in the preceding class, the utterance is offered for its truth and is hearsay.

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