United States v. Maebane

  This opinion is subject to revision before publication.




     UNITED STATES COURT OF APPEALS
              FOR THE ARMED FORCES
                    _______________

                  UNITED STATES
                      Appellee

                            v.

          Edmond A. MAEBANE III,
Hospital Corpsman Second Class Petty Officer
         United States Navy, Appellant

                    No. 24-0196
              Crim. App. No. 202200228

Argued March 18, 2025—Decided September 18, 2025

         Military Judge: Stephen F. Keane

For Appellant: Lieutenant Zoe R. Danielczyk, JAGC,
USN (argued); Lieutenant Colonel Matthew E. Neely,
USMC (on brief).

For Appellee: Lieutenant K. Matthew Parker, JAGC,
USN (argued); Colonel Iain D. Pedden, USMC,
Lieutenant Commander James P. Wu Zhu, JAGC,
USN, Major Candace G. White, USMC, and Brian K.
Keller, Esq. (on brief).

Judge SPARKS delivered the opinion of the Court,
in which Chief Judge OHLSON and Judge
JOHNSON joined. Judge MAGGS filed a dissenting
opinion, in which Judge HARDY joined.
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          United States v. Maebane, No. 24-0196/NA
                    Opinion of the Court


   Judge SPARKS delivered the opinion of the Court.
    A panel of officers and enlisted members at a general
court-martial convicted Appellant, contrary to his pleas, of
one specification of reckless endangerment and one
specification of involuntary manslaughter, in violation of
Articles 114 and 119, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 914, 919 (2018). The United States
Navy-Marine Corps Court of Criminal Appeals (NMCCA)
affirmed the findings and sentence. United States v.
Maebane, No. NMCCA 202200228, 2024 CCA LEXIS 171,
at *34-35, 2024 WL 1954294, at *12-13 (N-M. Ct. Crim.
App. May 3, 2024) (unpublished). The granted issue
requires us to decide whether an accused has “a Sixth
Amendment right to present evidence of a recorded third
party’s confession to the crime for which the accused is on
trial.” United States v. Maebane, 85 M.J. 151 (C.A.A.F.
2024) (order granting review). We conclude that under the
facts of this case, the military judge violated Appellant’s
constitutional right to present the evidence, and the
military judge’s exclusion of such evidence was prejudicial.
Accordingly, we set aside the decision of the NMCCA.
                      I. Background
   On the evening of August 16, 2019, Appellant hosted a
gathering at his residence. In attendance were Hospital
Corpsman Third Class Petty Officer [HM3] Whiskey,
Hospital Corpsman Second Class Petty Officer [HM2]
Hotel, HM2 Wilson, Hospital Corpsman First Class Petty
Officer [HM1] Davis, Appellant, and the victim, [HM3]
Delta.
    After arriving at Appellant’s home between
approximately 6:30 and 7:30 p.m., the group cooked food,
listened to music, smoked cigars, and consumed varying
quantities of alcohol. At some point in the evening,
Appellant showed HM2 Wilson his new Springfield 9mm
pistol. According to HM2 Wilson, Appellant took the pistol
from a nearby coffee table, “cleared [the pistol], so removed
the magazine, cleared [the] round that was in the chamber.
And then, [Appellant] handed [HM2 Wilson] the pistol.”




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Appellant subsequently placed the magazine and cleared
round onto the nearby television stand. 1 According to HM2
Wilson, he then handed the pistol back to Appellant, who
passed the gun to the others at the party. However, HM2
Hotel claimed that no one other than HM2 Wilson and
Appellant handled a firearm that night.
    Over the course of the evening, Appellant brought out
two additional firearms, a Springfield 1911 .45 pistol and a
lever action rifle. As the weapons were passed around,
there were instances where the sailors “dry fired” the
weapons (i.e., pulling their triggers while they were
unloaded). Appellant and HM3 Whiskey were seen dry
firing the Springfield 9mm while pointing it at the victim.
   Eventually, the weapons were put away. The lever
action rifle was put behind a recliner, the 1911 .45 was
placed between a wall and couch, and the Springfield 9mm
was set down under a coffee table. Later, as the group
played a drinking game, HM2 Wilson noticed the 9mm
magazine and spare round were still on the television
stand. After asking HM2 Davis to pass him the magazine
and spare round, HM2 Wilson removed each round from
the magazine, counted them, reloaded the magazine, and
then placed both the magazine and spare round onto a
windowsill near him. He did so to prevent someone from
loading a round into the Springfield 9mm by accident.
Eventually, Appellant asked HM2 Wilson for the rounds
and magazine back, stating he intended to put the
Springfield 9mm away upstairs. But rather than bringing
the rounds and magazine upstairs, Appellant “loaded the
magazine into the pistol, charged a round into [the]
chamber [by racking the slide], took the magazine out, put
the spare round into the magazine” and then placed “the
magazine back [into] the pistol.” Appellant then put the
Springfield 9mm in his waistband.


   1 The NMCCA’s finding that HM2 Wilson took this action is
clearly erroneous. Maebane, 2024 CCA LEXIS 171, at *3, 2024
WL 1954294, at *1.




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   Sometime thereafter, Appellant began wrestling with
the victim. At this point, Appellant gave HM2 Wilson both
the handguns. Having seen Appellant load the Springfield
9mm, HM2 Wilson placed the weapon under his thighs
while Appellant and the victim wrestled. When the
wrestling ended, Appellant asked for the Springfield 9mm
back and again put the gun in his waistband.
    Around midnight, Appellant and the victim began
wrestling again. Subsequent testimony stated that
Appellant pulled the Springfield 9mm from his waistband
and placed it against the victim’s head. The victim then
“grabbed [the pistol] by the front of the muzzle and, sort of,
pulled it in, like, a couple inches to his forehead.” Shortly
before this, HM2 Hotel had witnessed Appellant pull the
slide, causing a round to enter the firing chamber. Seeing
the pistol against the victim’s head and believing
Appellant, in pulling the slide with a loaded magazine in
the weapon, had just put another round in the chamber,
HM2 Hotel “tried to jump up and tell him to stop.” HM2
Hotel testified that he was too late, and that Appellant
pulled the trigger, killing the victim.
    HM2 Wilson called 911. Agents from both the Army
Criminal Investigative Division (CID) and the Naval
Criminal Investigative Service (NCIS) responded to the
call. Appellant told CID that the victim had “reached down
into the sofa, pulled out a pistol and put it to his head and
shot himself.” Around 1:45 a.m. on August 17, 2019, HM3
Whiskey, HM2 Hotel, HM2 Wilson, HM1 Davis, and
Appellant were then interviewed. HM3 Whiskey, HM2
Hotel, HM2 Wilson, and HM1 Davis recalled hearing a shot
but denied seeing it fired. Appellant did not provide a
statement.
    NCIS agents initially came to the conclusion that the
trajectory of the fatal shot came from where HM3 Whiskey
was sitting. Early that morning, Special Agent [SA] Tango
read HM3 Whiskey his rights under Article 31(b), UCMJ,
10 U.S.C. § 831(b) (2018), and accused him of shooting the
victim. In response, HM3 Whiskey stated, “If I shot him, I
don’t remember,” and went on to note he “never put the



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magazine inside the gun.” In response, SA Tango told HM3
Whiskey that she believed the victim’s death may have
been an accident, and that HM3 Whiskey had a bright
future ahead of him. HM3 Whiskey replied, “I am
scared . . . . If I knew I did it, I would say it.” Special Agent
Tango next told HM3 Whiskey that she believed the bullet
that killed the victim was fired from where he was seated.
After being confronted with this allegation, HM3 Whiskey
continued to assert he did not remember what happened.
     HM3 Whiskey then told SA Tango, “[b]ut if like the
evidence . . . you can’t argue evidence if the evidence and
stuff come back and say I [shot the victim] it was an
accident.” About a minute later, he stated “I don’t know
what happened . . . I literally do not know what happened
. . . . Maybe I just blocked it out . . . . I don’t know what
happened.” SA Tango elicited from HM3 Whiskey that he
had an older sister and told him that the victim had a little
sister who looked up to him. HM3 Whiskey repeated, “If I
knew that it was me that did it, I would say that it was me
that did it.”
    SA Tango again told HM3 Whiskey that the shot that
killed the victim was fired from where he was seated. In
response, HM3 Whiskey said, “If that’s all the evidence
[concerning the victim’s death], then I guess when I pulled
the trigger and it went off, I guess my mind just shut it off,
shut it out. Because I never intended for that to happen. It
was just a stupid fucking accident.” After this statement,
SA Tango left the room. When she left, HM3 Whiskey
immediately whispered to himself, “It wasn’t me.”
    When SA Tango returned after ten minutes, she
continued her questioning. HM3 Whiskey admitted to
playing with the gun but told SA Tango he did not know
how it became loaded. Then, he stated, “I guess, I guess, I
did it. There’s really no arguing it. It was a stupid fucking
thing. It was a mistake. I didn’t mean to do it. I fucking
killed somebody.”
  After HM3 Whiskey confessed, SA Tango asked him a
number of follow-up questions, including, “Did you pull the




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trigger?” to which HM3 Whiskey responded, “I believe so.”
He then stated “I swear I put down my beer, looked at the
TV and that’s when the shot got off.” In response to further
pressing, HM3 Whiskey told SA Tango, “I guess after I took
a drink—beer, I picked up the gun either from the floor or
couch next to me and then I shot him.” He then stated, “I
guess that makes sense if I did have the gun in my hand.”
    HM3 Whiskey went on to describe the shooting in
further detail after further questioning, stating, “[w]hen I
put down my beer, I picked up the gun, pointed it at him,
expecting it to dry fire again, boom, hands went up because
it scared the fuck out of me and that’s when I saw him
slump. That’s when I was like holy shit.” At SA Tango’s
urging, HM3 Whiskey wrote a letter to the victim’s
parents, stating, “Your son was a good man and I took him
from you and this world out of pure stupidity.” HM3
Whiskey was placed into pretrial confinement the following
day.
    While HM3 Whiskey was in pretrial confinement, HM1
Davis voluntarily returned to NCIS and told investigators
that he saw Appellant holding a gun immediately after
hearing the gunshot. HM1 Davis described to investigators
that he believed the weapon Appellant was holding was the
Springfield 1911 .45 pistol. He further said that, from his
perspective, only Appellant could have fired the shot that
killed the victim. He did mention, however, that it was
possible HM3 Whiskey could have fired the shot if the
evidence showed the entrance wound was in the back of the
victim’s head. An autopsy revealed that the bullet entered
the victim’s forehead and exited the wound on the back of
the victim’s head.
    Approximately twelve days after his interview with SA
Tango, HM3 Whiskey recanted his confession. Among the
reasons he offered for falsely confessing were “he was
scared,” he had received only “an hour of sleep,” he “wanted
the questions to stop,” and SA Tango’s mention of the
victim’s family “made him feel terrible.” Over the course of
the investigation, HM2 Hotel and HM2 Wilson were again
interviewed by NCIS and stated that Appellant fired the



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shot that killed the victim. Each recalled Appellant holding
a black pistol that looked like the Springfield 9mm
immediately after the shot was fired. Forensic testing
confirmed that the bullet that killed the victim was fired
from the Springfield 9mm pistol.
    When questioned by NCIS about where people were
located when the shot was fired, HM2 Hotel, HM2 Wilson,
and HM1 Davis were in agreement. Each described
Appellant as being on the victim’s immediate right, while
HM3 Whiskey was sitting to the victim’s left. Ultimately,
the forensic report of the shooting indicated the bullet that
killed the victim was lodged in the wall immediately to the
victim’s left. Appellant was then charged with reckless
endangerment and involuntary manslaughter.
   Prior to trial, Appellant moved for a preliminary ruling
to admit the recording of HM3 Whiskey’s interview with
SA Tango and his handwritten note to the victim’s parents
under Military Rule of Evidence (M.R.E.) 807, the residual
exception to the rule against hearsay. Appellant’s motion
also relied on the Supreme Court’s decision in Holmes v.
South Carolina, 547 U.S. 319 (2006), and this Court’s
decision in United States v. Woolheater, 40 M.J. 170
(C.M.A. 1994), in arguing that excluding this evidence
would violate his Sixth Amendment right to present a
complete defense. In his ruling on the motion, the military
judge determined that the evidence was inadmissible
under M.R.E. 807 because the statements were
untrustworthy. This was because the military judge
determined that: (a) there was no corroborating evidence,
or more precisely that it “cannot be corroborated” by the
record; (b) HM3 Whiskey only confessed after suggestive
questioning in the second interview; (c) HM3 Whiskey’s
mental state was not reliable; and (d) it was a false
confession. The military judge ruled the handwritten note
inadmissible under M.R.E. 807 for the same reasons. He
ruled in the alternative that admitting HM3 Whiskey’s
statement would not serve the interests of justice and
“would serve to mislead the members and waste time in
violation of [M.R.E.] 403.” The military judge’s ruling never




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addressed Appellant’s reliance on Holmes and Woolheater,
or Appellant’s contention that admission of HM3 Whiskey’s
confession and letter were necessary under his
constitutional right to present a complete defense. Further,
he ignored circumstantial evidence that HM3 Whiskey was
in fact the shooter, such as HM3 Whiskey pointing the
9mm pistol at the victim and pulling the trigger, HM3
Whiskey’s text message to a friend stating, “Yo being slight
drunk around [the victim] is hell” and the history of
personal conflict between HM3 Whiskey and the victim.
   Ultimately, the military judge held that the defense
could “impeach [HM3 Whiskey] with his confession on
cross-examination but [could] not offer the confession for
its truth.” At trial, under direct examination by the
Government, HM3 Whiskey testified that he had falsely
confessed to the shooting. He further testified that, while
he was present when the victim was killed, he did not see
the shooting occur. During cross-examination, trial defense
counsel elicited from HM3 Whiskey, in detail, all relevant
facts regarding his confession to SA Tango.
    The prosecution entered into evidence a Trace Evidence
Report which concluded that the clothing worn by HM3
Hotel, HM3 Whiskey, and Appellant was “in contact with
a discharged firearm,” “in close proximity to a discharging
firearm,” or “otherwise in an environment of gunshot
residue.” No gunshot residue was found on HM2 Wilson or
HM1 Davis. Prior to closing arguments, the military judge
provided the members with instructions regarding the
proper consideration of prior inconsistent statements.
   Specifically, the military judge instructed the panel
that:
      You have heard evidence that before this trial,
      certain witnesses may have made statements that
      may be inconsistent with their—you can cross out
      his or her—their testimony here in court.
      If you believe that an inconsistent statement or
      statements was or were made, you may consider
      the inconsistency in deciding whether to believe
      that witness’s in-court testimony. You may not




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      consider the earlier statements as evidence of the
      truth of the matters contained in the prior
      statements. In other words, you may only use it or
      them as one way of evaluating the witnesses
      testimony here in court. You cannot use it or them
      as proof of anything else.
      For example, if a witness testifies in court that the
      traffic light was green and you heard evidence
      that the witness made a prior statement that the
      traffic light was red, you may consider that prior
      statement in evaluating the truth of the witness’s
      in court statement—in court testimony. You may
      not, however, use the prior statement as proof
      that the light was red.
                        II. Discussion
    We review a military judge’s ruling on the admissibility
of evidence for “an abuse of discretion.” United States v.
McElhaney, 54 M.J. 120, 129 (C.A.A.F. 2000). Military
judges abuse their discretion when: (1) their findings of fact
“are not supported by the evidence of record;” (2) they fail
“to consider important facts;” (3) they use “incorrect legal
principles;” or (4) their application of correct legal
principles to the facts is “clearly unreasonable.” United
States v. Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017).
When the ruling involves mixed questions of fact and law,
findings of fact are reviewed for clear error and conclusions
of law are reviewed de novo. See United States v. Kelley, 45
M.J. 275, 279-81 (C.A.A.F. 1996). Courts are highly
deferential when military judges articulate their analysis
on the record. See United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000).
   “[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’ ”
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations
omitted) (quoting California v. Trombetta, 467 U.S. 479,
485 (1984)). The exclusion of trustworthy exculpatory
evidence may violate an accused’s constitutional right to
present a defense. See Chambers v. Mississippi, 410 U.S.
284, 294-95, 302 (1973); Holmes, 547 U.S. at 324-25, 331.
However, this only occurs when an evidentiary rule by its




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very terms, or a military judge’s application of the rule,
“infring[es] upon a weighty interest of the accused and [is]
arbitrary or disproportionate to the purposes [the rule is]
designed to serve.” United States v. Beauge, 82 M.J. 157,
167 (C.A.A.F. 2022) (quoting Holmes, 547 U.S. at 324-25).
To meet this standard, an appellant cannot merely proffer
that the military judge excluded evidence relevant to a
defense. Instead, the excluded evidence must have
“significantly undermined fundamental elements of the
[appellant’s] defense.” United States v. Scheffer, 523 U.S.
303, 315 (1998).
  A. Exclusion of the third-party confession infringed
           upon Appellant’s weighty interest
    Here, the military judge’s exclusion of HM3 Whiskey’s
confession and letter infringed upon Appellant’s weighty
interest. A primary focus of Appellant’s defense at trial was
that he did not in fact shoot the victim. HM3 Whiskey’s
confession and written letter were the primary pieces of
evidence for Appellant’s defense. By only admitting this
evidence for impeachment purposes, the military judge
infringed upon Appellant’s weighty interest in the
presentation of his defense.
          B. The military judge’s application of
                M.R.E. 807 was arbitrary
   In his M.R.E. 807 analysis, the military judge relied
upon United States v. Donaldson, 58 M.J. 477 (C.A.A.F.
2003), in evaluating the reliability of HM3 Whiskey’s
confession. In Donaldson, this Court instructed lower
courts to consider several “indicia of reliability” in
determining whether a hearsay statement is admissible
under the residual hearsay exception. Id. at 488. These
indicia of reliability are as follows: “(1) the mental state of
the declarant; (2) the spontaneity of the statement; (3) the
use of suggestive questioning; and (4) whether the
statement can be corroborated.” Id.
   Appellant argues that under the circumstances of this
case, the military judge’s reliance on Donaldson was inapt.
First, Donaldson interpreted the previous version of




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M.R.E. 807, which provides for the admission of hearsay
not otherwise admissible under a hearsay exception in
M.R.E. 803 or 804 if “the statement has equivalent
circumstantial guarantees of trustworthiness” as the other
hearsay exceptions. M.R.E. 807(a)(1) (2000 ed.). As
amended, M.R.E. 807 provides, in relevant part: that
hearsay not otherwise admissible under one of the hearsay
exceptions in M.R.E. 803 or 804 is admissible if “the
statement is supported by sufficient guarantees of
trustworthiness—after considering the totality of the
circumstances under which it is made and evidence, if any,
corroborating the statement.” M.R.E. 807(a)(1) (2024 ed.).
But “[e]vidence admitted under [M.R.E.] 807 is not
required to be completely free from all questions.” United
States v. Zamora, 80 M.J. 614, 629 (N-M. Ct. Crim. App.
2020); see also Schering Corp. v. Pfizer, Inc., 189 F.3d 218,
233 (2d Cir. 1999) (observing that a hearsay statement
“need not be free” of all “risk to be admitted” under the
residual hearsay exception). To this end, “third-party
culpability evidence, to be admissible, need not be
sufficient to sustain a guilty verdict against the third
party.” Bradford v. Paramo, 100 F.4th 1088, 1098 (9th Cir.
2024). “It need only have the potential, considered along
with other evidence in the record, to raise a reasonable
doubt as to the guilt of the defendant.” Id.; see also Fed. R.
Evid. 807 advisory committee’s note to 2019 amendment
(“the court should not consider the credibility of any
witness who relates the declarant’s hearsay statement in
court. . . . To base admission or exclusion of a hearsay
statement on the witness’s credibility would usurp the
jury’s role of determining the credibility of testifying
witnesses”). Second, Donaldson is distinguishable on its
facts. Donaldson involved a three-year-old child sexual
abuse victim, and the Court derived its “indicia of
reliability” from a series of cases involving child victims of
sexual abuse. 58 M.J. at 488 (first citing United States v.
Grant, 42 M.J. 340, 343-44 (C.A.A.F. 1995) (seven-year-
old); then citing Kelley, 45 M.J. at 281 (six-year-old); and
then citing United States v. Cox, 45 M.J. 153, 157 (C.A.A.F.
1996) (six-year-old)). The “totality of circumstances”




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includes additional considerations when evaluating the
admissibility of an adult’s statements to law enforcement.
This is particularly true where the new M.R.E. 807
expressly requires military judges to consider other
corroborating evidence, separate and apart from the
circumstances under which the statement was made. Thus,
it is not clear that Donaldson and its interpretation of the
prior version of M.R.E. 807 was appropriate for the
military judge to apply in the first instance. However, even
if it was appropriate, the military judge still misapplied
Donaldson.
       1. HM3 Whiskey’s confession was trustworthy
    In determining the confession was not trustworthy, he
pointed to four points: (1) the forensic evidence directly
contradicted HM3 Whiskey’s confession; (2) SA Tango used
suggestive questioning akin to coaching; (3) the
circumstances surrounding the confession were indicative
of unreliability; and (4) HM3 Whiskey’s confession was
false.
    In Chambers, the Supreme Court found that a third
party’s confession had assurances of trustworthiness
because each statement was made spontaneously to a close
acquaintance, each statement was corroborated by other
evidence in the case, each statement was in a real sense
against the third party’s interest, and the third party was
present and available for cross-examination. 410 U.S. at
300-01. Here, HM3 Whiskey’s confession had similar
assurances of trustworthiness: (1) his confession was made
in close temporal proximity to the crime—the day after the
shooting; (2) the confession was corroborated by other
evidence such as his pointing the pistol and dry firing at
the victim, the gunshot residue found on HM3 Whiskey
when tested by law enforcement, and the letter he drafted
to the family after confessing; (3) the confession was clearly
against his penal interest; and (4) HM3 Whiskey was
subject to cross-examination at Appellant’s trial. All this
points toward HM3 Whiskey’s testimony having a strong
indicia of reliability. He confessed shortly after the killing,
“[two] times, in [two] forms, . . . . with no apparent ulterior




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motive, and clearly against his penal interest.” Gable v.
Williams, 49 F.4th 1315, 1330 (9th Cir. 2022). The military
judge erred by failing to consider these indicia of reliability
in ruling on the admissibility of the confession.
   Further, HM3 Whiskey gave his confession during a law
enforcement interrogation, and, because of this, there is a
question of whether it was voluntary. See Schneckloth v.
Bustamonte, 412 U.S. 218, 225-28 (1973) (explaining an
involuntary confession occurs where an accused’s “will has
been overborne” by law enforcement and is not admissible
at trial); see also United States v. Freeman, 65 M.J. 451,
453 (C.A.A.F. 2008) (“The voluntariness of a confession is a
question of law. . . .”). The military judge found, and there
is no reason to conclude otherwise, “[n]either of HM3
[Whiskey’s] statements to NCIS were the product of NCIS
coercion, unlawful influence, or unlawful inducement.”
Because HM3 Whiskey’s confession was voluntary as a
matter of law, the “credibility and weight” of this
confession should have been a “question [of fact] for the
[members].” 23A C.J.S. Criminal Procedure and Rights of
Accused § 1791 (updated May 2024); see also United States
v. Hall, 93 F.3d 1337, 1344 (7th Cir. 1996) (writing that
once a judge decided the defendant’s confession was
voluntary “it was . . . within the jury’s province to assess
the truthfulness and accuracy of the confession”).
    Here, the military judge infringed on the role of the fact
finders by excluding the confession based on his evaluation
of its truthfulness. This conclusion is contrary to “[the]
fundamental premise of our criminal trial system . . . . that
‘the jury is the lie detector.’ ” Scheffer, 523 U.S. at 313
(quoting United States v. Barnard, 490 F.2d 907, 912 (9th
Cir. 1973)); see also id. (writing that the determination of
the weight and credibility of witness testimony “has long
been held” to belong to the jury).
   The military judge incorrectly reached this conclusion
by relying solely on the strength of the Government’s case.
The military judge’s ruling made explicit reference to the
fact that the “forensic evidence in this case directly
contradicts HM3 [Whiskey’s] confession.” Outside of the



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strength of the Government’s forensic evidence, the
military judge largely failed to address the connection
between HM3 Whiskey and the charged crime. The
military judge considered SA Tango’s suggestive
questioning and HM3 Whiskey’s mental state, but these
facts do not directly address HM3 Whiskey’s connection to
the charged conduct. See Holmes, 547 U.S. at 330 (stating
that “[j]ust because the prosecution’s evidence, if credited,
would provide strong support for a guilty verdict, it does
not follow that evidence of third-party guilt has only a weak
logical connection to the central issues in the case”). In
addition, the military judge explicitly stated that he was
not considering the evidence proffered by Appellant that
connected HM3 Whiskey to the crime because he found
“HM3 [Whiskey’s] recanted confession is the only evidence
[Appellant] . . . . pointed to indicating HM3 [Whiskey] was
the shooter.” Under Holmes, evidence of third-party guilt
may not be excluded merely because the prosecution’s
evidence is robust. See 547 U.S. at 329. The Government
argues that Holmes is inapplicable because the military
judge did not “solely consider [the] inculpatory forensic
evidence and instead reviewed the totality of
circumstances that made [HM3 Whiskey’s] statements not
sufficiently trustworthy.” However, even the NMCCA
acknowledged that the “clear implication” from the ruling
is that the military judge “did not consider any of the
purportedly corroborative evidence cited by the Defense.”
Maebane, 2024 CCA LEXIS 171, at *19, 2024 WL 1954294,
at *8. Thus, the military judge only considered the strength
of the Government’s evidence—in violation of Holmes.
   Without any further justification, contrary to the
military judge’s decision, this Court is left with a confession
that bears Chambers’s assurances of trustworthiness.
Further, this Court has considered the question of the
Sixth Amendment right to a complete defense and third-
party culpability evidence before. In Woolheater, this Court
held that the military judge erred by excluding “legally and
logically relevant evidence that someone else had the
motive, knowledge, and opportunity to commit” the crime.




                              14
          United States v. Maebane, No. 24-0196/NA
                    Opinion of the Court


40 M.J. at 173. This Court described the military judge’s
efforts there as “thwart[ing]” the defense theory. Id. at 174.
The Court held the total preclusion of the defense theory
violated appellant’s constitutional right to present a
defense. Id. Here, the military judge similarly thwarted the
defense’s theory by only allowing the evidence to come in
as a prior inconsistent statement and instructing the panel
that the previous confession should not be considered
substantively. By only allowing the defense to offer HM3
Whiskey’s confession for impeachment, Appellant could not
use the confession to support the circumstantial evidence
of HM3 Whiskey’s “motive, knowledge, and opportunity.”
   This failure to consider Chambers and Holmes led to the
exclusion of Appellant’s only direct evidence that a third
party committed the charged conduct. Because of the
importance of this evidence to Appellant’s defense, its
exclusion infringed upon his weighty interest in the
presentation of his defense and the clearest basis for
members to find a reasonable doubt. “Facts give meaning
to other facts, and certain pieces of evidence become
significant only in the aggregate upon the proffer of other
evidence.” State v. Wilson, 864 N.W.2d 52, 65 (Wis. 2015).
With the confession, other evidence such as the gun residue
and the dry firing becomes more potent. By rejecting the
confession for its truth, the military judge inserted himself
into the role of factfinder and changed how the members
may have viewed that other evidence. Thus, the military
judge infringed on Appellant’s weighty interest, and, as
such, erred.
   This is not to say that this Court sanctions all third-
party culpability evidence, regardless of trustworthiness.
In Burks, this Court considered the admissibility of an
anonymous letter from a murder victim’s purported lover,
“Michael.” United States v. Burks, 36 M.J. 447, 449 (C.M.A.
1993). The letter explained how the victim had died
because the victim had “become entwined” with a
“homosexual cult.” Id. This Court rejected the appellant’s
arguments on both the residual hearsay and constitutional
grounds, “because certain evidence—the fundamental




                             15
          United States v. Maebane, No. 24-0196/NA
                    Opinion of the Court


trustworthiness of which is wholly unestablished by the
defendant—is excluded from the trial.” Id. at 451 (citing
United States v. Hinkson, 632 F.2d 382, 386 (4th Cir.
1980)).
   A comparison between Burks and Woolheater places
Appellant’s case in the realm of a reasonable version of
events,     supported    by    independent     indicia    of
trustworthiness. Similar to Woolheater, HM3 Whiskey
had: motive to harm the victim, knowledge of the shooting,
and the opportunity to carry it out. Therefore, HM3
Whiskey’s third-party confession should be subject to the
factfinder’s determination as to weight. Burks, on the other
hand, did not meet any indicia of trustworthiness as the
defense’s theory as well as the supporting evidence were
highly suspect.
             2. SA Tango’s interrogation of HM3
                   Whiskey was appropriate
   The military judge’s finding on SA Tango’s
interrogation of HM3 Whiskey is contradictory. In his
Donaldson analysis, the military judge says SA Tango
employed “suggestive questioning akin to coaching”;
however, he also stated that “[n]either of HM3 [Whiskey’s]
statements to NCIS were the product of NCIS coercion,
unlawful influence, or unlawful inducements.” This
statement suggests the suggestive questioning would affect
HM3 Whiskey less because he is an adult. 2 See United
States v. Wilson, No. NMCCA 201800022, 2019 CCA
LEXIS 276, at *52-53, 2019 WL 2745384, at *21 (N-M. Ct.
Crim. App. July 1, 2019) (unpublished) (“All of the experts
acknowledged that children are susceptible to suggestion
and that they are capable of believing events happened
that did not happen.”). As a result, the military judge’s
decision to attribute great significance to SA Tango’s use of
suggestive questioning is unclear, especially when such
tactics are regularly—and permissibly—used by law
enforcement. See, e.g., United States v. Monroe, 264

   2 HM3 Whiskey was twenty-one years old when the charged

offense occurred.




                             16
          United States v. Maebane, No. 24-0196/NA
                    Opinion of the Court


F. Supp. 3d 376, 391 (D.R.I. 2017). Additionally,
interrogating officers can make false representations
concerning a crime or investigation without rendering an
ensuing confession coerced or unreliable. See Frazier v.
Cupp, 394 U.S. 731, 739 (1969). There is nothing
extraordinary about SA Tango’s questioning and no special
characteristic of HM3 Whiskey that renders his confession
suspect. Thus, the truthfulness of the confession should
have been left to the members to evaluate. Hall, 93 F.3d at
1345.
   Finally, the military judge made inconsistent findings
as to HM3 Whiskey’s mental state when he confessed. On
the one hand, the military judge found HM3 Whiskey’s
confession and letter were unreliable because he was
“unstable from grief, fear, and lack of sleep.” However, the
military judge also found that HM3 Whiskey understood
NCIS’s questions and had the wherewithal to ask for
clarification on one occasion when he did not understand
their cleansing warning. At a minimum, this inconsistency
casts doubt on the military judge’s findings.
          C. The military judge’s application of
                M.R.E. 403 was arbitrary
    “In the alternative,” the military judge found that
“admitting HM3 [Whiskey’s] confession under these
troubling circumstances . . . would serve to mislead the
members and waste time in violation of M.R.E. 403.”
Because the military judge largely failed to articulate his
reasoning, his M.R.E. 403 ruling is entitled to less
deference. See Manns, 54 M.J. at 166 (“This Court gives
military judges less deference if they fail to articulate their
balancing analysis on the record, and no deference if they
fail to conduct the Rule 403 balancing.”). The military
judge erred in his M.R.E. 403 analysis because HM3
Whiskey’s confession was probative and did not serve to
mislead the members.
    First, in determining the probative value of third-party
culpability evidence, courts have considered the “strength
of the link between the exculpatory evidence and the case




                              17
         United States v. Maebane, No. 24-0196/NA
                   Opinion of the Court


at hand.” United States v. Moore, 590 F. Supp. 3d 277, 284
(D.D.C. 2022). Here, there is a strong link, as HM3
Whiskey was present at the crime scene and confessed.
Second, the evidence did not pose a risk of “sidetrack[ing]
the jury into consideration of factual disputes only
tangentially related” to the case. United States v. McVeigh,
153 F.3d 1166, 1191 (10th Cir. 1998). The Government
argues that Appellant killed the victim, whereas
Appellant’s defense was based on creating a reasonable
doubt someone else killed the victim. Thus, HM3 Whiskey’s
confession possessed a strong logical connection to the
case’s central issue because it provided a basis for members
to find Appellant did not kill the victim. See Bradford, 100
F.4th at 1100. Third, the proposed evidence was not
excessively “complex or time-consuming.” United States v.
Jordan, 485 F.3d 1214, 1221 (10th Cir. 2007). HM3
Whiskey’s interrogation did not involve an esoteric or
complex topic. Instead, it concerned the circumstances
under which the charged conduct occurred, which directly
implicates the members’ role as factfinders.
    The Government contends the military judge did not err
because “Appellant was able to present equally useful
evidence by cross-examining [HM3 Whiskey] on his
admissions during the second interview.” So, it argues
HM3 Whiskey’s confession and letter were unnecessary
because they were cumulative of other evidence. However,
after the cross-examination, the military judge later
instructed members to only consider prior inconsistent
statements such as HM3 Whiskey’s confession as
impeachment bearing on HM3 Whiskey’s credibility, and
not as evidence for the truth of the matter asserted.
Therefore, the military judge stripped the confession of its
probative value. And this Court “presume[s] that members
follow a military judge’s instructions,” so, absent some
unapparent circumstance, this Court presumes the
members did not consider the confession for an
impermissible purpose. United States v. Taylor, 53 M.J.
195, 198 (C.A.A.F. 2000). Without HM3 Whiskey’s
confessions and letter, there was no direct evidence




                            18
         United States v. Maebane, No. 24-0196/NA
                   Opinion of the Court


showing HM3 Whiskey killed the victim. Thus, the
confession and letter are not cumulative.
   Given the above, the military judge’s ruling “infring[ed]
upon a weighty interest of [Appellant].” Holmes, 547 U.S.
at 324. His M.R.E 807 and 403 determinations were
arbitrary because they excluded reliable and highly
probative evidence.
      D. Appellant was prejudiced by this inability
                to put on a full defense
    Because the military judge’s ruling violated Appellant’s
constitutional right to present a complete defense, the
Government “must show that the error was harmless
beyond a reasonable doubt to obviate a finding of
prejudice.” United States v. Tovarchavez, 78 M.J. 458, 462
(C.A.A.F. 2019). The Government contends any error was
harmless because the “confession and apology were
introduced for impeachment and used to argue [HM3
Whiskey] was the shooter.” Thus, the Government argues
that excluded evidence was cumulative, and Appellant was
still able to present his theory of third-party culpability.
This is incorrect for three reasons.
    First, third-party culpability evidence, if believed,
renders “reasonable doubt” an “almost . . . forgone
conclusion.” Bradford, 100 F.4th at 1096. HM3 Whiskey’s
confession and letter, if believed, provide members with a
basis to find reasonable doubt. Second, the confession and
letter played a vital role in Appellant’s defense. “As is
usually the case with pieces of evidence, each item of
information [Appellant] sought to introduce gave meaning
and coherence to [HM3 Whiskey’s] admission, put it in
context, and explained it.” Lunbery v. Hornbreak, 605 F.3d
754, 761 (9th Cir. 2010). By excluding HM3 Whiskey’s
letter and evidence, the military judge eliminated “the
probative force of the whole chain” of evidence underlying
Appellant’s defense. Id. Moreover, by instructing the
members that HM3 Whiskey’s confession was only relevant
to his credibility, the military judge tacitly undermined
Appellant’s defense by signaling to the jury that HM3




                            19
          United States v. Maebane, No. 24-0196/NA
                    Opinion of the Court


Whiskey’s confession was not credible. Third, this Court
“will reverse a conviction unless [it] find[s] that a
constitutional error was not a factor in obtaining that
conviction.” United States v. Kreutzer, 61 M.J. 293, 298-99
(C.A.A.F. 2005). It is difficult to see how the exclusion of
this evidence could not play a role in Appellant’s conviction.
Thus, we conclude the military judge’s error was not
harmless beyond a reasonable doubt.
                      III. Conclusion
   The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The findings and
sentence are set aside. The record is returned to the Judge
Advocate General of the Navy. A rehearing is authorized.




                             20
           United States v. Maebane, No. 24-0196/NA


   Judge MAGGS, with whom Judge HARDY joins,
dissenting.
    Hospital Corpsman Third Class (HM3) Delta was shot
and killed at a gathering where several sailors were fool-
ishly playing with firearms and drinking alcohol. Accused
of firing the fatal bullet, Appellant was charged with invol-
untary manslaughter. At his trial by general court-martial,
Appellant moved for admission into evidence of several
statements that another sailor, HM3 Whiskey, had made
out of court. In these statements, HM3 Whiskey confessed
that he was the one who had shot HM3 Delta. The military
judge, however, ruled that HM3 Whiskey’s statements
were inadmissible hearsay. The military judge rejected Ap-
pellant’s argument that the statements should be admitted
under the residual hearsay exception in Military Rule of
Evidence (M.R.E.) 807(a) because the military judge was
not convinced that the statements were “supported by suf-
ficient guarantees of trustworthiness” as that exception re-
quires. 1 The court-martial found Appellant guilty of the in-
voluntary manslaughter offense. The United States Navy-
Marine Corps Court of Criminal Appeals (NMCCA) af-
firmed. United States v. Maebane, No. NMCCA 202200228,
2024 CCA LEXIS 171, at *34, 2024 WL 1954294, at *13
(N-M. Ct. Crim. App. May 3, 2024) (unpublished).



   1 M.R.E. 1102(a) provides that “[a]mendments to the Federal

Rules of Evidence—other than Articles III and V—will amend
parallel provisions of the Military Rules of Evidence by operation
of law 18 months after the effective date of such amendments,
unless action to the contrary is taken by the President.” On April
25, 2019, the Supreme Court informed Congress that it had or-
dered an amendment to Fed. R. Evid. 807 with an effective date
of December 1, 2019. Letters from Chief Justice John G. Roberts
to Nancy Pelosi, Speaker of the House of Representatives, and
Michael R. Pence, President, United States Senate,
https://www.supremecourt.gov/orders/courtor-
ders/frev19_774d.pdf (last visited Sept. 11, 2025). Congress did
not act to prevent the amendment from going into effect. There-
fore, by operation of M.R.E. 1102, M.R.E. 807 was automatically
amended to match Fed. R. Evid. 807 eighteen months later, on
May 1, 2021. This amended version of M.R.E. 807 was in effect
when Appellant was tried on June 8, 2022.
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

   This Court granted review to decide the question: “Does
an accused have a Sixth Amendment right to present evi-
dence of a recorded third party’s confession to the crime for
which the accused is on trial.” The Court answers this
question in the affirmative and sets aside the finding that
Appellant is guilty of involuntary manslaughter. I write
separately because my assessment of the issue is different.
Like the military judge and the judges of the NMCCA, I
conclude that HM3 Whiskey’s statements were inadmissi-
ble. They were hearsay, and they did not fit within the re-
sidual hearsay exception because the statements were not
sufficiently trustworthy. And because the statements were
not sufficiently trustworthy, I also conclude that the
United States Constitution did not require their admission
into evidence. I therefore respectfully dissent.
                             I.
    The Military Rules of Evidence state that it is the mili-
tary judge who “must decide any preliminary question
about whether . . . evidence is admissible.” M.R.E. 104(a)
(2019 ed.). In making the decision, the military judge is not
bound by the rules of evidence. Id. One preliminary ques-
tion is whether a hearsay statement is admissible evidence.
Hearsay, as defined in M.R.E. 801(c), is a “statement that:
(1) the declarant does not make while testifying at the cur-
rent trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.”
Here, HM3 Whiskey was the declarant, and he did not
make the statements at issue while testifying at trial. Ap-
pellant offered these statements for the truth of the matter
asserted, namely, that HM3 Whiskey was the person who
fired the shot that killed HM3 Delta. Therefore, HM3
Whiskey’s statements were hearsay.
    The “rule against hearsay” in M.R.E. 802 provides that
“[h]earsay is not admissible” unless some exception ap-
plies. Military Rules of Evidence 803 and 804 contain nu-
merous specific exceptions under which hearsay may be ad-
missible, but none applies here. Notably, the exception in
M.R.E. 804(b)(3) for a “[s]tatement against interest” does
not apply because one element of that exception is that the
declarant be unavailable as a witness. Here, HM3 Whiskey




                                  2
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

was available as a witness, he did testify at trial, and in his
testimony, he expressly answered the question whether he
shot HM3 Delta.
    That leaves for consideration the issue of whether HM3
Whiskey’s hearsay statements should have been admitted
under the “residual exception” to the rule against hearsay
under M.R.E. 807, the applicable version of which provides
in relevant part:
      Rule 807. Residual Exception
      (a) In General. Under the following conditions, a
      hearsay statement is not excluded by the rule
      against hearsay even if the statement is not
      admissible under a hearsay exception in Rule 803
      or 804:
          (1) the statement is supported by sufficient
      guarantees of trustworthiness—after considering
      the totality of circumstances under which it was
      made and evidence, if any, corroborating the
      statement; and
           (2) it is more probative on the point for which
      it is offered than any other evidence that the pro-
      ponent can obtain through reasonable efforts.
The military judge, as previously noted, ruled that the re-
sidual exception did not apply because HM3 Whiskey’s
statements were not trustworthy. Under M.R.E. 104(a),
this decision regarding the trustworthiness of the state-
ments was for the military judge, not the members, to
make because M.R.E. 807(a) makes the admissibility of the
statements contingent on this determination.
    This Court reviews a military judge’s decision on the ad-
missibility of evidence under the residual hearsay excep-
tion in M.R.E. 807 for abuse of discretion. United States v.
Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008). In the
light of concerns addressed by the NMCCA and this Court,
I will assume without deciding that the military judge
abused his discretion by not considering certain facts and
by impermissibly considering certain other facts. 2 A

   2 The NMCCA decided that the military judge abused his dis-
cretion when he concluded that the HM3 Whiskey’s “confession
cannot be corroborated.” But as the NMCCA explained, the




                                 3
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

military judge’s evidentiary ruling, however, may be af-
firmed if any error in the military judge’s reasoning was
harmless because “the military judge reached the correct
result, albeit for the wrong reason.” United States v. Rob-
inson, 58 M.J. 429, 433 (C.A.A.F. 2003). In this case, I agree
with the military judge’s conclusion that the hearsay state-
ments were inadmissible.
    M.R.E. 807(a)(1) restricts the residual exception only to
hearsay statements that are “supported by sufficient guar-
antees of trustworthiness.” In deciding whether these
guarantees exist, the rule requires consideration of the “to-
tality of circumstances” under which the declarant made
the hearsay statement and “evidence, if any, corroborating
the statement.” I have considered the totality of the circum-
stances, with a special emphasis on the arguments that the
parties make in their briefs.
   In my assessment, the strongest facts in favor of admit-
ting HM3 Whiskey’s statements under the residual excep-
tion to the rule against hearsay in M.R.E. 807(a) are that
HM3 Whiskey was present at the gathering, that he was
playing with firearms, and that the statements he made
went against his own interests. But in my opinion, neither
these facts, nor any others in the record, are enough to con-
vince me that HM3 Whiskey’s statements are “supported
by sufficient guarantees of trustworthiness—after

military judge should have considered the following corrobora-
tive evidence: (1) HM3 Whiskey’s presence in the room where
the shooting occurred; (2) HM3 Whiskey’s earlier hostile state-
ments toward HM3 Delta; (3) HM3 Whiskey’s dry firing of the
weapon at the HM3 Delta; (4) the location of a dinner plate sug-
gestive of HM3 Whiskey’s position in the room; and (5) forensic
evidence showing HM3 Whiskey was close to the firing of a
weapon. Maebane, 2024 CCA LEXIS 171, at *19-20, 2024 WL
1954294, at *8.
    And in this appeal, this Court decides that the military judge
abused his discretion when he concluded that HM3 Whiskey’s
confession was not trustworthy in part because the military
judge considered forensic evidence that contradicted it. The
Court reasons that Supreme Court precedent precludes a trial
judge from assessing the trustworthiness of the evidence based
on the strength of the government’s evidence.




                                  4
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

considering the totality of circumstances.” I reach this con-
clusion for three reasons.
    First, HM3 Whiskey’s unsworn statements that he shot
HM3 Delta lack sufficient guarantees of trustworthiness
because HM3 Whiskey recanted and repudiated those
statements both before trial and under oath when testify-
ing at trial. The “recantation or repudiation of the state-
ment after it was made” is an important factor to consider
in deciding whether hearsay is too untrustworthy to be ad-
mitted under the residual hearsay exception. Paul F. Roth-
stein, Federal Rules of Evidence, Rule 807. Residual Excep-
tion (2025 ed.); see also 30B Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 7063 (2025 ed.)
(identifying “whether the witness ever recanted” as a factor
to consider). “Evidence that a declarant subsequently re-
canted the story of course is an argument against its trust-
worthiness.” 5 Clifford S. Fishman & Anne Toomey
McKenna, Jones on Evidence § 37:15 (7th ed. Supp. 2024).
Accordingly, numerous cases have denied admission of re-
canted or repudiated statements under the residual excep-
tion to the rule against hearsay. See, e.g., United States v.
Redlightning, 624 F.3d 1090, 1118 (9th Cir. 2010) (holding
a statement was not sufficiently trustworthy in part be-
cause the declarant recanted); United States v. Groce, 999
F.2d 1189, 1190-91 (7th Cir. 1993) (same).
   To be sure, a recantation by itself does not disprove the
truth of an earlier confession. The confession might be true,
and the recantation might be false. But the recantation
calls into doubt the truth of the confession and thus makes
the confession untrustworthy. In such situations, if the de-
clarant is available, the confession should not be admitted
into evidence under the residual exception to the rule
against hearsay for proof of the matter asserted. Rather,
the declarant should be called to testify so that the trier of
fact can assess the witness’s credibility and decide what to
believe, which is exactly what occurred here when HM3
Whiskey testified at trial. And if the declarant on the stand
contradicts a past out-of-court confession, the past confes-
sion may be used for impeachment, which again is precisely




                                5
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

what occurred in this case when trial defense counsel cross-
examined HM3 Whiskey.
   Second, HM3 Whiskey’s statements lack sufficient
guarantees of trustworthiness because, before making the
statements, HM3 Whiskey repeatedly said that he did not
know or could not remember what happened. Specifically,
HM3 Whiskey made the following statements:
          “If I shot him, I don’t remember.”
         “I am scared. If I knew I did it, I would say it
      because I don’t lie.”
         “I don’t remember . . . . I don’t think I shot
      him.”
            “I don’t know what happened. I’m not being de-
      fensive, I literally do not know what happened
      . . . . Maybe I just blocked it out . . . . I don’t know
      what happened.”
         “If I knew it was me that did it, I would say it
      was me that did it.”
The “personal knowledge of the declarant regarding the
subject matter of [a] statement” is also recognized as an
important factor in deciding whether hearsay is trustwor-
thy. Rothstein, supra, Rule 807. Residual Exception; see
also Wright & Miller, supra § 7063. Here, HM3 Whiskey’s
denials of memory and knowledge called into doubt the
truth of his later statements that he shot HM3 Delta. To be
sure, HM3 Whiskey’s denials of memory and knowledge
may have been false. Again, the proper course in this situ-
ation, where out-of-court statements lack sufficient guar-
antees of trustworthiness, was not to admit the hearsay
confession as substantive evidence under the residual
hearsay exception but instead to have HM3 Whiskey tes-
tify at trial and be cross-examined, which is what occurred.
The members then could assess the credibility of HM3
Whiskey’s testimony.
   Third, HM3 Whiskey’s statements also lack sufficient
guarantees of trustworthiness because HM3 Whiskey ex-
pressly indicated that he was confessing based not on his
own knowledge but instead based on the information that
the investigators provided to him. After the investigators




                                   6
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

told HM3 Whiskey that forensic evidence showed he was
the shooter, HM3 Whiskey responded with statements
such as:
      “But if like the evidence . . . you can’t argue evi-
      dence if the evidence and stuff come back and say
      I did it was an accident.”
       “If all the evidence is pointing at me, I know I was
      the one . . . with the gun around that time, but I
      still don’t know how it got loaded. But I guess, I
      guess, I did it. There’s really no arguing it.”
Whether the investigator’s statements about the forensic
evidence were true or false, the exchange raises the possi-
bility that HM3 Whiskey did not have personal knowledge
about what happened and only confessed based on what
the investigator told him.
    For these reasons, I conclude that HM3 Whiskey’s
statements lack “sufficient guarantees of trustworthiness”
to fit within the residual exception to the rule against
hearsay under M.R.E. 807(a). My conclusion might have
been different if HM3 Whiskey had made the statements
at issue in a different context. But here, HM3 Whiskey was
interrogated overnight in two separate sessions for a total
of six hours—with only a short interval in between—during
which HM3 Whiskey was tired, distraught, and scared. The
adverse conditions did not necessarily make his hearsay
statements untruthful. Yet M.R.E. 807 does not stand for
the proposition that hearsay statements are to be admitted
under the residual exception merely because they may be
truthful. On the contrary, the rule dictates that hearsay
statements are admissible only if they are supported by
“sufficient guarantees of trustworthiness” and are “more
probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable
efforts.” M.R.E. 807(a)(1)-(2). The manner in which HM3
Whiskey was questioned during the investigatory
interrogations did nothing to make his hearsay statements
more trustworthy nor were these hearsay statements
“more probative” on the issue than HM3 Whiskey’s
testimony at trial.




                                 7
          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

                             II.
   Having concluded that HM3 Whiskey’s statements
were not admissible under the residual exception in M.R.E.
807, the question remains whether the Sixth Amendment
required their admission. I am unpersuaded that it did.
    Appellant relies on Chambers v. Mississippi, 410 U.S.
284 (1973). In that case, a state trial court barred witnesses
in a murder trial from testifying that a third party had con-
fessed to a murder. The Supreme Court held that the ex-
clusion of this evidence violated the right of “an accused to
present witnesses in his own defense.” Id. at 302. Appellant
asserts that the same conclusion is required here. Cham-
bers, however, is distinguishable from this case for two rea-
sons. First, a key factor in the Supreme Court’s conclusion
that the hearsay evidence should be admitted was that the
statement at issue “bore persuasive assurances of trust-
worthiness.” Id. Here, as explained above, Appellant’s
statement lacked sufficient guarantees of trustworthiness.
See Wright & Miller, supra § 6795 (explaining that there
are now few cases decided under the constitutional rule in
Chambers because the residual hearsay exception to the
rule against hearsay now provides for admission of trust-
worthy evidence). Second, Chambers is also distinguisha-
ble because the Mississippi procedural rules at issue pre-
vented the defendant from impeaching the third party’s
recantation of the confession. 410 U.S. at 295-98. The ina-
bility of the defense to subject the third-party confessor to
the crucible of cross-examination prevented the jury from
deciding for itself whether the third party’s testimony was
worthy of belief. In this case, unlike in Chambers, Appel-
lant was able to cross-examine HM3 Whiskey and impeach
the credibility of his recantation.
   In United States v. Scheffer, 523 U.S. 303, 305 (1998),
the Supreme Court reversed this Court’s decision that a
blanket exclusion of polygraph evidence in the Military
Rules of Evidence violated due process. In so doing, the Su-
preme Court explained that this Court had misunderstood
the decision in Chambers. The Supreme Court stated:
“Chambers . . . does not stand for the proposition that the
defendant is denied a fair opportunity to defend himself




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          United States v. Maebane, No. 24-0196/NA
   Judge MAGGS, with whom Judge HARDY joins, dissenting

whenever a state or federal rule excludes favorable evi-
dence.” Id. at 316. The Supreme Court reasoned that the
President could exclude polygraph evidence in large part
because there was no scientific consensus that it was relia-
ble. Id. at 309-10. Similarly here, and unlike in Chambers,
sufficient guarantees of trustworthiness are absent.
                            III.
    For these reasons, I conclude that the military judge
reached the correct conclusion in excluding the hearsay in
this case. I therefore would answer the granted question in
the negative and affirm the decision of the NMCCA, which
affirmed the findings and the sentence in this case.




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