## Facts

- MB was four years old at the time of the alleged misconduct.
- MB used the term “front-bottom” to refer to her vaginal area.
- MB told her mother and grandmother that Henderson touched her “front-bottom.”
- Near the time of the disclosures, MB behaved uncharacteristically, including refusing to sit down in the bathtub the night before and generally acting withdrawn and shy.
- Henderson was charged at a court-martial based on the alleged touching.
- At trial, the government sought to admit MB’s out-of-court statements to her mother and grandmother.
- The defense objected, arguing the statements were inadmissible hearsay.
- The military judge admitted the statements under Military Rule of Evidence 807 (residual exception).
- MB testified at trial but was unable to answer all questions posed to her.
- Henderson was convicted and appealed to the Air Force Court of Criminal Appeals (AFCCA) (unpublished opinion; ACM 38379; Dec. 29, 2014).

## Issues

1. Whether the military judge erred by admitting MB’s out-of-court disclosures to her mother and grandmother under M.R.E. 807 over a hearsay objection.

## Decision

- The military judge admitted MB’s statements to her mother and grandmother under M.R.E. 807, and Henderson was convicted at court-martial.
- Henderson appealed to the AFCCA, challenging the admission of MB’s out-of-court statements under the residual hearsay rule.
- Publicly available summaries identify the Rule 807 issue as a focus of the appeal but do not provide the appellate court’s final disposition or full reasoning.

## Legal Principles

- M.R.E. 807 allows admission of hearsay not covered by another exception if the statement has equivalent guarantees of trustworthiness, is offered to prove a material fact, is more probative than other evidence reasonably obtainable, and admission serves the interests of justice, with required notice.
- When evaluating trustworthiness of a young child’s statements describing sexual touching, courts commonly consider factors such as the child’s age, the child’s words (including child-specific terms for anatomy), the timing of the disclosure, consistency, whether questioning was suggestive, whether there are signs of coaching, and whether surrounding circumstances support reliability.
- A child’s ability or inability to provide complete in-court testimony can affect the “more probative” and “interests of justice” elements, because earlier disclosures may carry much of the available account of the alleged abuse.
- Appellate review of a military judge’s decision to admit evidence under M.R.E. 807 is generally for abuse of discretion.

## Conclusion

United States v. Henderson, 2014 CCA LEXIS 927 (A.F. Ct. Crim. App. 2014) arises from a court-martial in which the government relied on a four-year-old child’s disclosures to her mother and grandmother that Henderson touched her vaginal area (“front-bottom”); the military judge admitted those out-of-court statements under M.R.E. 807 despite a hearsay objection, the child testified but could not answer all questions, and the appeal raised whether admitting the disclosures under the residual exception was error.


United States v. Henderson, 2014 CCA LEXIS 927 (2014)