Out-of-court Statements in Military Court

In United States v. Thomas, 41 MJ 732 (N-MCtCrimAppeals1994), the Government sought to introduce out-of-court statements made by a witness outside the context of a line-up, show-up, or photographic identification procedure as not-hearsay statements of identification under Military Rule of Evid, 801(d)(1)(C). Military Rule of Evid, 801(d)(1)(C) is taken verbatim from FRE 801(d)(1)(C). Id. at 734. The US Navy-Marine Corps Court of Criminal Appeals held that the Government's attempt to bolster a witness's testimony by such an out-of-court statement was not permitted under the rule, as the intent of the rule was to make it clear that nonsuggestive line-ups, show-ups, and photographic arrays and other identification procedures are not hearsay and therefore admissible. Id. at 735. That court held that Mil.R.Evid, 801(d)(1)(C), or FRE 801(d)(1)(C), did not apply to prior consistent statements of a witness not conducted at such an identification procedure, and introduced merely to bolster the witness' in-court testimony. Id. The court in United States v. Kaquatosh, 242 F. Supp. 2d 562, 565 (ED Wis 2003), used similar rationale for not admitting out-of-court statements made to a police officer during an interview under FRE 801(d)(1)(C). The language of FRE 801(d)(1)(C) "made after perceiving him," refers to a witness recognizing the defendant after a subsequent observation and identifying the defendant. Id. This requires the witness to make the statement of identification after observing or perceiving the defendant in person for a second time at a hearing, line-up or show-up, or from a likeness in a photo array, after the initial observation of the defendant at the time of the incident in question. Id. Out-of-court statements made during a police interview are more properly characterized as accusatory statements rather than statements of identification for purposes of FRE 801(d)(1)(C). Id.