United States v. Baran

I write separately to outline some of my reasons for concern that justice was not done in this case.

Pasetti’s extrajudicial statement to Gomez was admitted by the military judge on the theory that it qualified under Mil.R. Evid. 801(d)(2)(E) as “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy” and, in the alternative, under Mil.R.Evid. 804(b)(3) as a declaration against penal interest. Of course, the burden was on the Government as the proponent to establish that despite the hearsay prohibition the statement was admissible under these rules.…