WITNESSES Competency

Rule 601.  General rule of competency.

Every person is competent to be a witness except as otherwise provided in these rules.

The rule eliminates the categorized disabilities which existed at common law and under prior military law.  United States v. Morgan, 31 M.J. 43 (C.M.A. 1990), cert. denied, 498 U.S. 1085 (1991).  The very young (4 year old child here) are competent, even if hesitant, apprehensive, and afraid.

State v. Michaels, 642 A.2d 1372 (N.J. 1994) (pretrial taint hearing to determine whether coercive and or unduly suggestive interrogations affected the child’s ability to recall the alleged abuse and decide admissibility of child’s in-court testimony or out-of-court statements).

United States v. Kibler, 43 M.J. 725 (Army Ct. Crim. App. 1995).  As there was sufficient physical, psychological and other behavioral evidence to corroborate claims, taint hearing not required.  United States v. Cabral, 43 M.J. 808 (A.F. Ct. Crim. App. 1996).  Accused never entitled to pretrial taint hearing under any circumstances.  Coercion/suggestiveness goes to weight to be given the evidence, not admissibility.

In the event that the competency of a witness is challenged, e.g., a child, the proponent of the witness must demonstrate that the witness has:

Capacity to observe;

Capacity to remember;

Capacity to relate;

Recognition of the duty to tell the truth.

At common law, the elements of competency included the testimonial qualities of perception, memory, narration, and sincerity.  Even if one of those elements cannot be overcome by the opponent, an attack may function as valid impeachment.  An example of this sort of attack on competency would include showing the witness has a psychiatric disorder or was intoxicated at the time of the event.  Frequently, the foundations for this attack may include reference to a historical event:

Where and when the particular historical event occurred;

Who was present;

What happened;

How the event may have affected the accuracy of the witness’ testimony;

If an expert is used, the qualifications of the expert, the basis of his or her opinion, and the opinion itself also will be elicited.

Personal Knowledge.

Rule 602.  Lack of personal knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.  This rule is subject to the provisions of Mil. R. Evid. 703, relating to opinion testimony by expert witnesses.

As long as the panel could find that the witness perceived the event, the testimony should be admitted.  Note, however, the term “sufficient,” which affirms that the military judge retains power to reject evidence if it could not reasonably be believed.

To demonstrate personal knowledge, the proponent must show the witness was in a position to perceive the event, and did actually perceive it.

Oath (See R.C.M. 807(b)(2)).

Rule 603.  Oath or affirmation

Before testifying, every witness shall be required to declare that the witness testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.

Affirmation is simply a solemn undertaking to tell the truth; no special formula is required.  The process is designed to awaken the conscience of the witness.

Interpreters.

Rule 604.  Interpreters 

An interpreter is subject to the provisions of these rules relating to qualifications as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.

Qualify as an expert.  See Mil. R. Evid. 702.  This includes evidence that the interpreter is competent to translate the foreign language into English.

Place under Oath.  RCM 807.

The interpreter is a witness and may be cross-examined.  United States v. Ladell, 30 M.J. 672 (A.F.C.M.R. 1990).  See also United States v. Romey, 32 M.J. 180 (C.M.A.), cert. denied, 502 U.S. 924 (1991).  Allowing mother to interpret child victim’s whispered testimony is not improper bolstering and does not violate due process.

Exceptions To Competency Rule.

The military judge

Rule 605.  Competency of military judge as witness

(a)  The military judge presiding at the court-martial may not testify in that court-martial as a witness.  No objection need be made to preserve the point.

(b)  This rule does not preclude the military judge from placing on the record matters concerning docketing of the case.

United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991).   Without any supporting evidence at trial, the military judge used his own specialized knowledge of drug use in Germany to conclude the accused used hashish instead of leaf marijuana, how a pipe was used in the process, and that the charged offense was not the accused’s first use of marijuana.  In doing so, the judge became a witness, was disqualified, and all actions from then on were void.

The rule is an exception to Mil. R. Evid. 103 waiver rule.  It does not apply to :

Subsequent proceedings concerning trial presided over; e.g., limited rehearing such as those ordered pursuant to United States v. Dubay, 37 C.M.R. 411 (1967).
Judicial notice under Mil. R. Evid. 201.
Placing docketing matters on the record.

Court members.

Rule 606.  Competency of court members as witness

(a)  At the court-martial.  A member of the court-martial may not testify as a witness before the other members in the trial of the case in which the member is sitting.  If the member is called to testify, the opposing party, except in a special court-martial without a military judge, shall be afforded an opportunity to object out of the presence of the members.

(b)  Inquiry into validity of findings or sentence.  Upon an inquiry into the validity of the findings or sentence, a member may not testify as to any matter of statement occurring during the course of the deliberations of the members of the court-martial or, to the effect of anything upon the member’s or any other member’s mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member’s mental process in connection therewith, except that a member may testify on the question whether extraneous prejudicial information was improperly brought to the attention of the members of the court-martial, whether any outside influence was improperly brought to bear upon any member, or whether there was unlawful command influence.  Nor may the member’s affidavit or evidence of any statement by the member concerning a matter about which the member would be precluded from testifying by received for these purposes.

United States v. Loving, 41 M.J. 213 (1994).  Mil. R. Evid. 606(b) allows impeachment of a verdict in limited circumstances.  Post-trial affidavits by panel members were not competent evidence where they did not discuss extraneous influences or unlawful command influence improperly injected into the deliberations.

Rule 607.  Who May Impeach.

The credibility of a witness may be attacked by any party, including the party calling the witness.

Under prior practice, the party calling a witness was said to “vouch” for the witness.  Ordinarily, that meant the party could not attack the credibility of that witness.

For purposes of impeachment, a witness need not be adverse.  Mil. R. Evid. 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.”

The rule contemplates impeachment, however, not the attempted introduction of evidence which otherwise is hearsay.  Put differently, the Government may not use impeachment by prior inconsistent statement as a “subterfuge” to avoid the hearsay rule.  United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985).  United States v. Ureta, 44 M.J. 290 (1996), cert. denied, 117 S. Ct.  692 (1997).

Stages of the Credibility Analysis:  United States v. Toro,  37 M.J. 313 (C.M.A. 1993), cert. denied, 114 S. Ct. 919 (1994):  This case discusses the three evidentiary stages which concern the credibility of witnesses at trial:  bolstering, impeachment, and rehabilitation.

Bolstering occurs when the proponent seeks to enhance the credibility of the witness before the witness is attacked.

Impeachment occurs – by a variety of different methods – after a witness testifies.

Rehabilitation, by one form or another, occurs after a witness’ credibility has been attacked.

Impeachment in General.  Impeachment is the use of evidence to call into question the accuracy of the testimony of a witness or hearsay equivalent.  It may entail questioning credibility, data reliability, or both.  Impeachment is primarily a question of relevance.  Will the proffered evidence tend to diminish or bolster the credibility or reliability of a witness?

Methods of Impeachment.

Attacks focused on:

Defects in capacity to observe, remember or relate.

Untruthful character.

Bias, partiality, interest in the outcome.

Prior convictions.

Prior Inconsistent Statements.

Particularly in sexual abuse litigation, delay in reporting abuse or subsequent recantation may constitute another method.

Operation of the “Collateral Fact Rule.”

Under the rule, extrinsic evidence is inadmissible to impeach witnesses on collateral facts.  The purpose of the rule is to prevent digression into unimportant matters, since the potential for wasting time and confusing the factfinder is particularly high when extrinsic evidence is used to impeach.

Clearly, the rule governs extrinsic evidence.  It does not limit the cross-examiner’s questioning a witness about collateral facts, subject to the general discretion of the court.

The rule applies to:

Impeachment under Mil.R.Evid. 608(b).

When the rule does not apply, the cross-examiner may question the witness and offer extrinsic evidence.  The rule does not apply to:

Bias under Mil.R.Evid. 608(c);
Defects in capacity (United States v. White, 45 M.J. 345 (1996));
Prior inconsistent statements; or
Impeachment under Mil.R.Evid 609.

Defects in Capacity.  Here the focus is on the witness’s ability to observe, remember and relate the information.

Observation.  The common mode of attack is that the witness could not adequately see/hear the incident in question because of poor lighting, cross-racial identification problems, distance from the scene, etc.

Recall.  Because of the witness’s age, mental condition at the time of the incident or at the time of trial, time lapse between the incident and their in-court testimony, etc., the witness cannot accurately remember the incident.

Relate.  Because of the witness’s age, mental condition, lack of expertise, etc., the witness cannot accurately relate the information.

Untruthful Character.

Mil. R. Evid. 608(a) and (b):

 

Rule 608.  Evidence of character, conduct, and bias of witness

(a)  Opinion and reputation evidence of character.  The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b)  Specific instance of conduct.  Specific instances of conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in Mil. R. Evid. 609, may not be proved by extrinsic evidence.  They may, however, in the discretion of the military judge, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning character of the witness for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.  The giving of testimony, whether by an accused or by another witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Once a witness testifies, including the accused, or a hearsay declarant, his or her credibility becomes an issue.  Evidence of their character is then relevant.  Rule 608(a) limits the relevance to truthfulness or untruthfulness.  Methods of proving character are set out in MRE 405.

Under 608(a), the character must be attacked before it may be rehabilitated.  Thus, bolstering is prohibited by the rule.  Once attacked, the witness’ character for being truthful may be rehabilitated with opinion or reputation evidence.  See United States v. Jenkins, 50 M.J. 577 (N. M. Ct. Crim. App. 1999), witness cannot comment directly about the credibility of another witness’s testimony.

The foundational elements:

Reputation witness must show he or she is a member of the same community as the witness to be attacked or rehabilitated;
That he or she has lived or worked there long enough to have become familiar with the witness’ reputation for truthfulness or the untruthfulness.  United States v. Toro, 37 M.J. 313 (C.M.A. 1993).
The term “community” is not subject to an exact geographical location, but means an area where a person is well-known and has an established reputation.  United States v. Crowell, 6 M.J. 944 (A.C.M.R.), pet. denied, 7 M.J. 249 (1979).
Opinion witness must demonstrate that he or she is personally acquainted with witness;
On that basis is able to have formed an opinion about the truthfulness or the lack thereof.  United States v. Perner, 14 M.J. 181 (C.M.A. 1982).

When cross-examination is conducted in such a manner as to induce the belief of untrustworthiness, rehabilitation is permitted.  United States v. Allard, 19 M.J. 346 (C.M.A. 1985).  Also, a “slashing cross-examination” will satisfy the “or otherwise” component of Mil. R. Evid. 608(a).  United States v. Everage, 19 M.J. 189 (C.M.A. 1985).

Mil. R. Evid. 608(b)(2) provides that a character witness can be asked questions about specific acts of the person whose credibility has been attacked or rehabilitated as a means of “testing” the character witness.

The cross examination must be probative of truthfulness or untruthfulness, are explicitly subject to the judge’s discretion concerning admissibility, and relate to the character trait of truthfulness or untruthfulness of either the witness being cross-examined, or the witness as to whose character the present witness has testified.  See, United States v. Lee, 48 M.J. 756 (Army Ct. Crim. App. 1998).  Accused wanted to impeach a government witness under 608(b) with evidence that the witness attempted to bribe an MP.  MJ excluded the evidence because the underlying facts did not sufficiently attack the witness’s truthfulness.  Army Court agreed and declined to adopt an absolute rule that bribery equals untrustworthiness.  Court said look past the label at the underlying misconduct.
The cross-examiner must have a good faith basis for any questions that are asked.  United States v. Robertson, 39 M.J. 211 (C.M.A. 1994), cert. denied, 115 S. Ct. 721 (1995):  This case involved impeachment by specific instances of conduct (arrest for conspiracy to commit fraud and attempted burglary) under Mil. R. Evid. 608(b).  COMA observes proper cross-examination under this exception requires:
a good-faith belief that the conduct occurred, and
it must relate to instances of  untruthfulness.
The questioner is precluded from introducing extrinsic evidence in support of his inquiry.  This avoids a “trial within a trial.”  If witness denies knowledge of the specific acts, no extrinsic evidence of specific acts is permitted.  You are “stuck with the answer.”  United States v. Cerniglia, 31 M.J. 804 (AFCMR 1991).

Witness Opinions on Other Testimony. United States v. Jenkins, 54 M.J. 12 (2000).  Accused convicted of larceny and other crimes for his involvement in a scheme to cash government checks with fake I.D. cards.  The defense theory was that the accused was framed by the real perpetrators and by his old girl friend.  The accused testified and, on cross, the government asked him a number of questions about what other witnesses had testified to and then asked the accused if these witnesses were lying. Defense did object to these questions at trial.  On appeal, defense claimed it was improper for the trial counsel to ask these questions.  The CAAF ruled that it was error (harmless) for the trial counsel to ask the accused if other witnesses were lying.  According to the court, this type of questioning violates the MRE 608 limitations, which allow for opinions on character only.  These questions are improper because the witness is becoming a human lie detector and the answers are not helpful.

Bias.

Rule 608.  Evidence of character, conduct, and bias of witness

(c)  Evidence of bias.  Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

Ulterior motives are never collateral and may be proved extrinsically.  The three categories under 608(c) are a representative list, not an exhaustive one.

There is no requirement to have the witness deny the ulterior motive as a prerequisite to proving the ulterior motive extrinsically.

Rules should be read to allow liberal admission of bias-type evidence. United States v. Hunter, 21 M.J. 240 (C.M.A.), cert. denied, 476 U.S. 1142 (1986).  See United States v. Aycock, 39 M.J. 727 (N.M.C.M.R. 1993): The military judge abused his discretion and committed prejudicial error in excluding extrinsic evidence of a government witness’ bias and motive to testify falsely (anger and resentment toward the appellant through loss of $195 wager).

Constitutional dimensions:

United States v. Bahr, 33 M.J. 228 (C.M.A. 1991).  14 year-old prosecutrix testified concerning sodomy and indecent acts by her stepfather.  Defense sought to introduce extracts from her diary showing a profound dislike of her mother and home life.  The military judge ruled the extracts were inadmissible, and kept the defense from examining the prosecutrix concerning a prior false claim of rape, and alleged advice to her friends to turn in their family members for child sexual abuse.  These rulings were evidentiary and constitutional error.  Prosecutrix’s hatred of her mother could be motive to hurt mother’s husband.

United States v. Bins, 43 M.J. 79 (1995).  Error for MJ to conclude victim not motivated by money;  responsibility under Rule 104(b) is to determine whether there is some evidence to establish whether victim motivated, in this case, by money. Weight and credibility are matters for fact-finder..

United States v. Sojfer, 47 M.J. 425 (1998).  In this case the defense wanted to cross-examine the victim of an indecent assault about a different rape that she had reported two days earlier.  The defense argued that because the past report was so fresh in her mind, she may have a bias and incorrectly characterized a routine medical exam as an indecent assault.  Held that the defense failed to establish a logical relevance between the past rape report and the indecent assault claim.

United States v. Alis, 47 M.J. 817 (A.F.Ct. Crim. App. 1998).  This case involved fraternization charges against the SJA at Mt. Home AFB.  The defense sought to impeach a government sentencing witness who became the acting SJA.  Defense wanted to show that he had a motive to embellish his testimony because he had been relieved of his duties for giving bad legal advice.  M.J. granted governments motion in limine.  Held:  M.J. did not abuse his discretion, and the bias argument was weak because the witness had testified similarly before the incident leading to his relief occurred.

 

Impeachment with a Prior Conviction.

Rule 609.  Impeachment by evidence of conviction of crime

(a)  General rule.  For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 403, if the crime was punishable by death, dishonorable discharge, or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the military judge determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.  In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.
(b)  Time limit.  Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.  However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
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(d)  Juvenile adjudications.  Evidence of juvenile adjudications is generally not admissible under this rule.  The military judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the military judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
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(f)  Definition.  For purposes of this rule, there is a “conviction” in a court-martial case when a sentence has been adjudged.

This method of impeachment can be done in cross-examination, or with extrinsic evidence, or both.  An important element in the analysis is the type of crime for which the witness was convicted.

United States v. Ballard, 39 M.J. 1028 (C.G.C.M.R. 1994):  The military judge did not err in admitting two civilian “misdemeanor” convictions for larceny to impeach the accused.  The North Carolina statute authorized imprisonment for up to two years for each offense.  Notwithstanding the misdemeanor nomenclature, 609(a)(1) authorizes impeachment by evidence of a conviction for a crime punishable by imprisonment in excess of one year under the law where the conviction occurred.

United States v. Bell, 44 M.J.403 (1996).  It is permissible for trial counsel to impeach a defense witness by eliciting prior conviction either through cross-examination or by establishing it by public record, even where prior conviction is for same offense for which accused is standing trial.

Crimen falsi convictions are crimes such as perjury, false statement, fraud, or embezzlement, which involve deceitfulness or untruthfulness bearing on the witness’s propensity to testify truthfully.  For crimen falsi crimes, the maximum punishment is irrelevant and the military judge must admit proof of the conviction.

Non crimen falsi crimes involve convictions for offenses punishable by death, dishonorable discharge, or imprisonment in excess of one year under the law of the prosecuting jurisdiction.  The key is the maximum punishment the witness faced, not the actual punishment the witness received.

Balancing test for witnesses:  Admissibility of non crimen falsi convictions of witnesses is governed by Mil. R. Evid. 403.  The military judge can exclude this evidence if the probative value is substantially outweighed by unfair prejudice.

Balancing test for the accused witness:  Admissibility of non crimen falsi convictions of the accused is more restrictive than Mil. R. Evid. 403.  Convictions are only admissible if the military judge determines the probative value outweighs the prejudicial effect.   See United States v. Ross, 44 M.J. 534 (A.F. Ct. Crim. App. 1996).

It is preferable for the judge to rule on an in limine motion pretrial.  If the judge declines to do so, the defense must act to preserve error for appellate review:

Luce v. United States, 469 U.S. 38 (1984).  If use of a conviction is allowed and the accused fails to testify, the decision to admit the conviction is not reviewable on appeal.

United States v. Sutton, 31 M.J. 11 (C.M.A. 1990).  Luce adopted in the military. United States v. Rusinskas, 35 M.J. 808 (N.M.C.M.R. 1992):  accused was charged with larceny and bad check offenses.  By motion in limine, he unsuccessfully sought to prevent his impeachment by introduction of prior state court conviction for burglary.  Ultimately, accused elected not to testify; decision waived review of the motion, IAW Sutton.

Ohler v. United States, 120 S.Ct. 1851 (2000).  The defense lost a motion in limine to keep the accused’s prior conviction out.  At trial, they introduced the unfavorable evidence preemptively.  The Court held that the defense waived the issue on appeal.

United States v. Cobia, 53 M.J. 305 (2000).  Accused charged with rape, forcible sodomy with a child, indecent acts, and adultery.  Over several years, the accused had sexually groomed his 13 year-old stepdaughter and committed various sexual acts with her including intercourse on several occasions.  The accused was tried in state court for these offenses.  He was also tried for two of these same offenses at his court-martial.   In state court, the accused pleaded guilty, but there was no allocution or providencey inquiry.  At his court-martial, the accused denied any wrongdoing and claimed that his civilian guilty plea was a result of coercion and his inability to understand the process.  At trial, the defense moved to preclude this evidence.  The military judge ruled that the convictions were not admissible under 404(b) but could be used for impeachment.  Following the ruling the defense introduced the conviction during their direct examination of the accused and asked him to explain his guilty plea.  The CAAF, citing to Ohler, held that the defense waived any objection by introducing evidence of the conviction in their direct examination of the accused.

Luce/Sutton Expanded:  United States v. Gee, 39 M.J. 311 (C.M.A. 1994):  Following defense motion in limine, military judge ruled that the accused’s potential character witnesses could be cross-examined concerning an allegation that he possessed cocaine.  Defense then elected to present no character witnesses.  On appeal the defense attacked the judge’s ruling.  COMA concluded that Luce v. United States, 469 U.S. 38 (1984), and United States v. Sutton, 31 M.J. 11 (C.M.A. 1990) were not limited to impeachment by prior conviction (e.g. Mil. R. Evid. 609(a)).  Thus, the tactical election to present no character evidence created an “evidentiary vacuum” which barred review.

Time Limit.  Conviction generally inadmissible if more than 10 years old.  May be admitted if:

Interests of justice require;

probative value substantially outweighs prejudicial effect;

proponent provides other party with notice.

Juvenile Adjudications.

Generally not admissible unless necessary to a fair resolution of the case, and evidence would have been admissible if witness previously had been tried as an adult.  Juvenile proceedings may be used against an accused in rebuttal when he testifies that his record is clean.  See United States v Kindler, 34 CMR 174 (C.M.A. 1964).

United States v. Miller, 44 M.J. 549 (A.F. Ct. Crim. App. 1996).  As there was insufficient explanation concerning how the information would establish bias or motive to lie, MJ properly denied defense request to cross-examine government witness concerning juvenile records.  Court seems to leave open possibility of such use if counsel are able to demonstrate a specific benefit the witness would receive or if the records reflect evidence of untruthfulness or conviction of an offense which would be admissible to impeach an adult.

United States v. Miller, 48 M.J. 49 (1998).  Accused and 4 others were charged with conspiracy, robbery and assault with intent to commit.  The two victims never identified the assailants.  However, a reluctant eyewitness eventually identified the accused and the others.  At trial the government made a motion in limine to prevent the defense from impeaching the eyewitness with a 6-year-old juvenile conviction for theft/robbery of a gold necklace.  The MJ granted the government’s motion.  The MJ did not abuse his discretion in excluding the evidence because the evidence was not central to show witness bias or motive to lie and the defense offer of proof was weak.

Summary courts-martial are allowed only if the accused was represented by counsel or representation was affirmatively waived.  United States v. Rogers, 17 M.J.990 (A.C.M.R. 1984)

Proving the conviction will involve the following foundational elements:

The witness is the person who suffered a conviction for an offense that Rule 609 holds to be impeaching;

The conviction was entered in a certain jurisdiction in a certain year;

The copy of the judgment is authentic (if accused denies the it).

 

Impeachment with Prior Statements.

Rule 613.  Prior statements of witnesses

(a)  Examining witness concerning prior statement.  In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b)  Extrinsic evidence of prior inconsistent statement of witness.  Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.  This provision does not apply to admissions of a party-opponent as defined in Mil. R. Evid. 801(d)(2).

Evidence that on a previous occasion a witness made a statement inconsistent with his or her present testimony is “probably the most effective and most frequently employed” attack on witness credibility.  Saying one thing on the stand and something different previously means that a witness is blowing hot and cold, and raises a doubt as to the truthfulness of both statements.  A prior inconsistent statement (PIS) casts doubt on the general credibility of the declarant.  Such evidence is considered only for purposes of credibility, not to establish the truth of the contents (thus avoiding a hearsay objection).  Thus, a limiting instruction would be appropriate.

A witness may be impeached with competent evidence to show that he or she made a previous statement, oral or written, inconsistent with his or her in-court testimony.  The evidence may be:

Intrinsic:  controlled by 613(a), involving interrogation of the witness concerning the prior statement, or

Extrinsic:  controlled by 613(b), involving extrinsic proof (testimony or documents) of the inconsistent statement.

Impeachment, however, is not the only possible use of a prior inconsistent statement.  Pursuant to Mil. R. Evid. 801(d)(1)(A), such statements are admissible substantively, and may be considered by the fact-finder for the truth of the matter asserted, as an exemption to the rule against hearsay when three requirements are met:

The statement is inconsistent with the declarant’s testimony;

The declarant made the statement under oath subject to the penalty of perjury; and

The statement was made at a trial, hearing, or other proceeding, or in a deposition.

Rule 801.  Definitions

(d)(1)  A statement is not hearsay if…[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is  (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

Failure to satisfy these requirements prohibits substantive consideration of the prior inconsistent statement.  See United States v. Le Mere, 22 M.J. 61, 67 (C.M.A. 1986) (extrajudicial statement which was not “inconsistent,” “under oath,” or made in some “proceeding” or “deposition” could not be admitted under Mil. R. Evid. 801(d)(1)(A)).

Interplay between Mil. R. Evid. 613 and 801(d).  Consider the probability that impeachment-only PIS will be considered improperly on the merits (substantively).

The Government may not use a PIS under the guise of impeachment for the primary purpose of placing before the panel substantive evidence which is not otherwise admissible.  United States v. Pollard, 38 M.J. 41 (C.M.A. 1993).

United States v. Ureta, 44 M.J. 290 (1996).  Although the credibility of any witness may be attacked, even by the party calling the witness, it is improper to call a witness on the merits for the primary purpose of placing otherwise inadmissible evidence before the members under the guise of impeachment.  As such, where a party knows the witness has recanted a prior inculpatory statement and would do so in front of the members, that party cannot call the witness simply to impeach the credibility of their in-court testimony with the out-of-court inconsistent statement, unless the prior inconsistent statement is admissible in its own right as substantive evidence either as an exemption from the definition of hearsay or an exception to the hearsay rules.

Foundations.

Proving the PIS depends, to some extent, on the nature of the impeachment.  For example, prior inconsistent statements could be written, oral, part of a deposition or Article 32 proceeding.

No matter what type of inconsistency involved, counsel probably will commit the witness to the statements in direct examination which are inconsistent with the prior statement.  Once that is done, counsel will:

Credit.  Show there was a prior oral or written statement made at a certain time and place to a certain person, closer in time to the incident.
Confront.  Confront the witness with the prior statement and highlight the inconsistencies.

Use of Extrinsic Evidence.

Foundational elements include giving the witness the opportunity to deny or explain the statement, and authenticating the statement.

Restrictions:  Extrinsic evidence of a PIS is not admissible unless:

The witness has the opportunity to explain or deny the PIS.  You can excuse the witness subject to recall, so the explanation can be left to opposing counsel.  United States v. Callara, 21 M.J. 259 (C.M.A. 1986).
The inconsistency must truly cast doubt on credibility and therefore the present testimony, or concern material facts of the case.  The rule against extrinsic proof of a PIS concerning a collateral matter is not stated within the rules, but is settled in the common law.  Application of Mil. R. Evid. 403 and 608(b) accomplishes the same thing.

United States v. Button, 34 M.J. 139 (C.M.A. 1992). The accused’s stepdaughter recanted prior inculpatory statements during trial, and admitted making prior inconsistent statements (PIS).  She claimed that she had lied earlier.  COMA held that extrinsic evidence of a PIS should not be admitted for impeachment when conditions are met:  the declarant is available and testifies; and the declarant admits making the prior statement; and the declarant acknowledges the specific inconsistencies between the prior statement and his or her in-court testimony.

Note that the tangible record of the prior inconsistent statement does not go back with the panel during deliberations.  United States v. Ureta, 44 M.J. 290, 299 (1996); see also United States v. Austin, 35 M.J. 271, 276 (C.M.A. 1992).

Prior Consistent Statements (PCS).

Prior to enactment of the rules, courts generally allowed consistent statements to be admitted for rehabilitative purposes only, not as substantive evidence.

One’s truthfulness must be attacked before being rehabilitated.  Mil. R. Evid. 608(a).  Attack may be by character evidence or during cross-examination.  Opposing counsel must first imply or attempt to establish that the witness is generally an untruthful person.  Mil. R. Evid. 608(a).  Introduction of contradictory evidence alone does not amount to an attack.  United States v. Everage, 19 M.J. 189 (C.M.A. 1985).

Practice Pointers – Methods of rehabilitation:  Witness may explain and clarify; show statement mistaken, misunderstood, or taken out-of-context; attack the impeaching evidence; Corroboration; Show prior consistent statements (Mil. R. Evid. 801(d)(1)(B) to rebut evidence of recent fabrication, improper influence, or improper motive.

Rule 801.  Definitions

(d)  Statements which are not hearsay.  A statement is not hearsay if:
(1)  Prior statement by witness.  The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(B)  consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person made after perceiving the person.

Under the rules, prior consistent statements are defined as nonhearsay and may be admissible as substantive evidence, as long as the declarant testifies at trial and is subject to cross-examination, and the requirements or situations specified in the rule are satisfied.

The requirement for cross-examination normally is satisfied when the witness, under oath, willingly responds to questions.  United States v. Owens, 484 U.S. 554 (1988).  The requirement in Rule 801(d)(1)(B) is not identical to the Sixth Amendment Confrontation Clause requirement.  United States v. DiCaro, 772 F.2d 1314, 1325 (7th Cir. 1985)

The predicate situations specified in the text of the rule include rebuttal of an express or implied charge of recent fabrication or improper motive.

Implied charge of improper motive:  The cross-examiner asks a witness the question, “You are the mother of the defendant, aren’t you?”  The cross-examiner in this scenario leaves the natural inference of bias to the trier of fact.

Express charge of improper motive:  would involve an additional question:  “You would do anything to help your son, wouldn’t you?”  In the second scenario, the previously implied inference of bias actually is articulated.

In Tome v. United States, 115 S. Ct. 696 (1995), the Supreme Court held that to rebut a charge of recent fabrication or improper influence or motive under Federal Rule of Evidence 801(d)(1)(B), a declarant must make a prior consistent statement before the alleged fabrication, motive, or influence arose.  The major military precedent in this area is United States v. McCaskey, 30 M.J. 188 (C.M.A. 1990).

In applying this rule, the military judge must determine, with the aid of counsel, when the motive to fabricate occurred, e.g., at trial or before; whether the statement sought to be admitted rebuts the recent fabrication , and whether the statement is relevant.  United States v. Toro, 37 M.J. 313 (C.M.A. 1993).  Even if these prerequisites are satisfied, the military judge should apply the Mil. R. Evid. 403 balancing test.  Id.

United States v. Taylor, 44 M.J. 475 (1996).  While prior consistent statements offered under Mil. R. Evid. 801(d)(1)(B) are only admitted if made before the alleged improper motive or influence arose, proponent need not introduce evidence showing the statements were in fact made before the alleged motive arose unless the party opposing admission objects.

United States v. Allison, 49 M.J. 54 (1998).  Where multiple motives or improper influences are asserted, the statement need not precede all such motives or inferences, only the one it is offered to rebut.  See also, United States v. Faison, 49 M.J. 59 (1998).

Foundational requirements for admission of a prior consistent statement include:

Showing where the statement was made;

When the statement was made;

Who was present;

The tenor or character of the statement;

That the statement preceded the inconsistent statement or motive to fabricate.  (only if offered substantively).  See, e.g., United States v. Castillo, 14 F.3d 802 (2d Cir. 1994) (not every use of  PCS governed by 801(d)(1)(B) – can be admitted to rehabilitate witness credibility even though doesn’t fit 801(d)(1)B) – then entitled to limiting instruction.

Rules Governing Trial Practice:

Rule 611.  Mode and Order of Interrogation and Presentation

                (a)  Control by the military judge.  The military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b)  Scope of cross-examination.  Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.  The military judge may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c)  Leading questions.  Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness.  Ordinarily leading questions should be permitted on cross-examination.  When a party calls a hostile witness, or a witness identified with an adverse party, interrogation may be by leading questions.

This rule is the basic source of the military judge’s authority to control proceedings at court-martial.

United States v. Royster, 42 M.J. 488 (1995).  After two month trial continuance, military judge orders redacted copies of record be provided to members to refresh memories.  CAAF affirms resourceful solution to difficult problem.
United States v. Loving, 41 M.J. 213 (1994). No error when judge characterized one of accused’s contentions as “ridiculous,” or when he threatened to “deal with defense counsel” after counsel challenged one of his rulings.  Expressions of impatience, dissatisfaction, annoyance and anger are not generally sufficient to establish bias or partiality.  Even a stern and short-tempered judge’s ordinary efforts at courtroom administration do not create an atmosphere of bias.

While the defense has the constitutional right to call witnesses and decide which witnesses to call, the military judge retains the discretion to determine which are cumulative and to exclude them, regardless whether travel expense are paid by the government or the witnesses themselves.  United States v. Breeding, 44 M.J. 345 (1996).

Scope of examination.

United States v. Stavely, 33 M.J. 92 (1992). When cross-examination goes to witness credibility, military judge should afford counsel wide latitude.
United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990).  An accused who chooses to testify on the merits is subject to same cross-examination as any other witness.  Here, TC did not impermissibly comment on right to counsel when he asked accused if he saw a lawyer before making a pretrial statement.

Alternatives to in-court  testimony.  The 1995 Amendments to Drafter’s Analysis provides that “when a witness is unable to testify due to intimidation by the proceedings, fear of the accused, emotional trauma, or mental or other infirmity, alternatives to live in-court testimony may be appropriate.

Rule 614.  Calling and Interrogation of Witnesses by the Court-Martial.

                (a)  Calling by the court-martial.  The military judge may, sua sponte or at the request of the members or the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.  When the members wish to call or recall a witness, the military judge shall determine whether it is appropriate to do so under these Rules or this Manual.

(b)  Interrogation by the court-martial.  The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party.  Members shall submit their questions to the military judge in writing so that a ruling may be made on the propriety of the questions or the course of questioning and so that questions may be asked on behalf of the court by the military judge in a form acceptable to the military judge.  When a witness who has not testified previously is called by the military judge or the members, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.

(c)  Objections.  Objections to the calling of witnesses by the military judge or the members or to the interrogation by the military judge or the members may be made at the time or at the next available opportunity when the members are not present.

The military rule differs from the federal rule in that through subdivision (b) it allows the court members to call and examine witnesses.  The rule allows the military judge to determine whether a witness called or recalled by the members is appropriate (Mil. R. Evid. 614(a)).  It sets out the procedure for members to submit question to witnesses via the military judge (Mil. R. Evid. 614(b)).

United States v. Woodward, 39 M.J. 1022 (A.C.M.R. 1994) (member’s request for evidence).
United States v. Dandy, 998 F.2d 1344 (6th Cir. 1993).  Court found three instances where trial judge may appropriately intervene during proceedings: (1) to clarify lengthy and complex proceedings; (2) to explain when attorneys are not prepared or obstreperous, or facts become confused; or (3) to make a record when a witness is difficult and not credible and the attorney fails to do so.
United States v. Hill, 45 M.J. 245 (1996).  While sheer number of questions by a court member may highlight a bias against an accused or be an important factor in determining the existence of partiality, the real inquiry is whether the overall questioning creates an impression or a substantial doubt they have departed from their required character as unbiased members of the court.

Rule 615. Exclusion of Witnesses.

At the request of the prosecution or defense the military judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the military judge may make the order sua sponte.  This rule does not authorize exclusion of (1) the accused, or (2) a member of an armed service or an employee of the United States designated as representative of the United States by the trial counsel, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s case.

Exceptions:  Accused, designated representatives of the United States (continues previous federal practice, e.g. case agent), person whose presence is essential (e.g., an expert).

New Exception.  Note new exception that became part of the military rules effective 1 June 2000.  Consistent with changes to the Federal Rules, a new exception was added “for persons authorized by statute to be present.”  This references to 18 U.S. C. § 3510 that allows for victims to remain in the courtroom if they will only be testifying in sentencing.   See, United States v. Spann, 51 MJ 89 (1999

United States v. Gittens, 39 M.J. 328 (C.M.A.), cert. denied, 115 S. Ct. 208 (1994): Accused alleged MJ erred by failing to follow witness sequestration rule where victim’s sister testified as an unplanned rebuttal witness.  The judge found no bad faith by the prosecution, but carefully limited sister’s testimony.  It is within the MJ’s discretion to permit a witness who has heard previous testimony to testify.  While the rule applies to rebuttal witnesses, it can only be applied to known witnesses.

United States v. Brewer, 947 F.2d 404 (9th Cir. 1991 (Rule 615 applies to pretrial evidentiary hearings).

United States v. Langston, 53 M.J. 335 (2000).  Accused entered mixed pleas.  During the providence inquiry, the military judge allowed three of the female victims to be present in the courtroom even though some would later be fact witnesses on the contested charges.  The military judge ruled that MRE 615 did not apply to providence inquiries.  The CAAF held that it was error (harmless) for the judge to allow the witness’s to remain in the courtroom, because a providence inquiry was still part of the judicial proceedings.  Note, this outcome would not change under the new MRE 615, if the witnesses would be fact witnesses.

United States v. Roth, 52 M.J. 187 (1999).  During the sentencing phase of his court-martial, the accused sought to call a witness to rebut evidence that the accused was involved in gang activity.  The government objected because the witness had been in the courtroom throughout the sentencing case.  The military judge sustained the objection and as a sanction, precluded the defense from calling this sentencing witness.  The CAAF held that the sanction was too severe.  There was no bad faith on the part of the defense.  Also, excluding the witness was unfair because the accused’s possible involvement in gang activity was a key issue at sentencing.  The court did not discuss the fact that the government never ask for the witness to be sequestered, even though they knew the witness was on the defense witness list.

Refreshing Recollection – This is NOT the recorded recollection hearsay exception.  Mil. R. Evid. 803(5).

Rule 612.  Writing used to refresh memory

If a witness uses a writing to refresh his or her memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the military judge determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.  If it is claimed that the writing contains privileged information or matters not related to the subject matter of the testimony, the military judge shall examine the writing in camera, excise any privileged information or portions not so related, and order delivery of the remainder to the party entitled thereto.  Any portion withheld over objections shall be attached to the record of trial as an appellate exhibit.  If a writing is not produced or delivered pursuant to order under this rule, the military judge shall make any order justice requires, except that when the prosecution elects not to comply, the order shall be one striking the testimony or, if in the discretion of the military judge it is determined that the interests of justice so required, declaring a mistrial.  This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this Manual.

Foundation and Procedure.

Show the memory of the witness has failed.
Show there is some means available which will refresh the recollection of the witness.
Have the witness read/examine the refreshing document silently.
Recover the refreshing document.
Proceed with questioning.
Make the refreshing document an appellate exhibit and append it to the record of trial.  Protect privileged matters contained in the writing.

Nothing is read into the record.  Refreshing document need not be admissible.

Opposing counsel may inspect the writing, use it in cross examination, and introduce it into evidence.

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