Court Martial Lawyer - Military Defense Attorney

Washington DC Court Martial Lawyer: Cross examination of witnesses

Washington DC Court Martial Lawyer: Cross examination of witnesses

When cross-examination is done in such a manner as to induce the belief of untrustworthiness, rehabilitation is permitted. See United States v. Allard, 19 M.J. 346 (C.M.A. 1985). Also, a slashing cross-examination will meet the or otherwise criteria of Rule 608(a). See United States v. Everage, 19 M.J. 189 (C.M.A. 1985). Simply introducing evidence which contradicts a witnesses testimony or statement is not an or otherwise attack according to Rule 608(a).

According to Rule 608(b)(2) the character witness can be asked questions regarding specific acts of the person whose credibility has been attacked or rehabilitated as a means of testing the character witness. The questioner is prohibited from introducing extrinsic evidence in support of his inquiry. This avoids a trial within a trial. When witness denies knowledge of the specific acts, no extrinsic evidence of specific acts is permitted. You are stuck with the answer. See United States v. Cerniglia, 31 M.J. 804 (AFCMR 1991).

As per the Collateral Fact Rule, extrinsic evidence is not admissible to impeach witnesses on collateral facts. The aim of the rule is to prevent digression into unimportant matters, since the potential for wasting time and confusing the fact finder is especially high if extrinsic evidence is used to impeach. It does not limit the cross-examiners questioning a witness about collateral facts, subject to the general discretion of the court.

Rule 702 - Expert Witnesses in a Military Court Martial

Rule 702 - Expert Witnesses in a Military Court Martial

If scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to decide a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, can testify thereto through an opinion or otherwise, when (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of dependable principles and methods, and (3) the witness has utilized the principles and methods reliably to the facts of the case.

Trial judges decide preliminary questions about the relevance, propriety and necessity of expert testimony, the qualification of expert witnesses, and the admissibility of his or her testimony.

In United States v. Warner, 62 M.J. 114 (2005), the Court held that Article 46 is a clear statement of the congressional objective against government exploitation of the opportunity to secure an expert substantially superior to the defenses. If the government arms itself with a top expert, it must provide a reasonably comparable expert to the defense.

In United States v. Lee, 64 M.J. 213 (2006), commenting on Warner and Article 46, the Court held the playing field is even more uneven when the government benefits from scientific evidence and expert testimony and the defense is denied a necessary expert to prepare for and deal with the prosecutions expert.

Court Martial Attorney Mode and Order of Interrogation and Presentation

Rule 611 - Court Martial Attorney Mode and Order of Interrogation and Presentation

Rule 611 is the main source of the military judges authority to control proceedings at court-martial.

Control by the military judge - The military judge should exercise reasonable control over the mode and order of questioning witnesses and introducing evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) prevent needless wastage of time, and (3) safeguard 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, allow questions about 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 required to develop the testimony of the witness. Ordinarily leading questions should be allowed in cross-examination. If a party calls a hostile witness, or a witness identified with an adverse party, interrogation can be by leading questions.

Untruthful Character in a Military Court Martial

Untruthful Character in a Military Court Martial

If a witness testifies, including the accused or a hearsay declarant, his or her credibility becomes an issue. Evidence of character is then important. Rule 608(a) restricts the relevance to truthfulness or untruthfulness. Modes of establishing character are provided in Rule 405. Under 608(a), the character should be questioned before it may be rehabilitated. So, bolstering is not allowed under 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 witnesses testimony.

Reputation witness must prove he or she is a member of the same community as the witness to be attacked or rehabilitated and that he or she has lived or worked there long enough to have become familiar with the witness reputation for truthfulness or the untruthfulness. See United States v. Toro, 37 M.J. 313 (C.M.A. 1993).

Opinion witness should prove that he or she is personally acquainted with witness and on that ground is able to have formed an opinion regarding the truthfulness or the lack thereof. See United States v. Perner, 14 M.J. 181 (C.M.A. 1982).

Army Criminal Defense Lawyer: Evidence of character, conduct, and bias of witness

Military Rule of Evidence 608 - Evidence of character, conduct, and bias of witness

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

Specific instance of conduct - Specific instances of conduct of a witness, for the purpose of questioning or supporting the credibility of the witness, besides conviction of crime as per MRE 609, cannot be established by extrinsic evidence. They may, however, in the discretion of the military judge, when probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) regarding character of the witness for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness about which character the witness being cross-examined has testified. The providing of testimony, whether by an accused or by another witness, does not operate as a waiver of the privilege against self-incrimination if examined with respect to matters that relate only to credibility.

Fort Benning Court Martial Lawyer on How to Witness Impeachment

Fort Benning Court Martial Lawyer on How to Witness Impeachment

Under prior practice, the party calling a witness was said to vouch for the witness. Essentially, that meant the party could not challenge the credibility of the witness. But, for, the witness does not have to be adverse.

Rule 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 that otherwise is hearsay. Put differently, the prosecution may not use impeachment by previous inconsistent statement as a subterfuge to avoid the hearsay rule. See 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).

The general modes of attack are:

Observation: The witness could not adequately see/hear the incident in question because of poor lighting, cross-racial identification issues, distance from the scene, etc.
Recall: Because of the witnesses age, mental condition at the time of the incident or during trial, time gap between the incident and the in-court testimony, etc., the witness cannot accurately recollect the incident.
Relate: Due to of the witnessss age, mental condition, lack of expertise, etc., the witness cannot accurately. relate the information.

Witness Competency and Personal Knowledge at a Court Martial

MRE 601 Witness Competency and Personal Knowledge at a Court Martial

Rule 601 does away the categorized disabilities which existed at common law and under prior military law. See 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 frightened.
In case the competency of a witness is questioned, e.g., a child, the proponent of the witness should demonstrate that the witness has: capacity to observe; capacity to remember; capacity to relate; and recognition of the duty to speak the truth.

So long as the panel could determine that the witness perceived the event, the testimony must be admitted. But, the term sufficient, which affirms that the military judge has power to disallow evidence if it cannot reasonably be believed.

To prove personal knowledge, the proponent should show the witness was in a position to perceive the event, and did in fact perceive it.

In United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991), without any supporting evidence during trial, the military judge relied on 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 accuseds first use of marijuana. In doing so, the judge became a witness, was disqualified, and all actions from then on were void.

Military Case laws on privileges | UCMJ Attorney

Military Case laws on privileges - UCMJ Attorney

Adultery. United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007). Adultery refers to a crime against the person or property of the other spouse. Thus, when one spouse is charged with adultery, the marital privilege, as per M.R.E. 504(c)(2)(A) does not apply to communications concerning the adultery.

Presumption of Confidentiality. In United States v. McCollum, 58 M.J. 323 (2003), the appellant raped his wifes 14-year-old sister, who was staying with the family during a summer visit. He made several statements to his wife concerning the incident. During trial, the military judge admitted two of the statements, stating that the appellant did not establish the intent to hold the communications confidential. The CAAF set aside, holding that marital communications have a presumption of confidentiality. When the party asserting the privilege has established that the communication was made privately during a valid marriage, the burden shifts to the opposing party to overcome the presumption.

Joint-Participant Exception. Although civilian federal courts recognize the joint-participant exception to the marital privilege, the joint-participant exception will not apply in military cases. See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). In Custis, the Court ruled that unlike privileges in the federal civilian courts that evolve based on case law, privileges in the military system are specifically delineated. Therefore, the only exceptions are those expressly authorized. Therefore, there is no joint-participant exception to the marital privilege. The ACCA in United States v. Davis, 61 M.J. 530 (Army Ct. Crim. App. 2005) had previously accepted a joint-participant exception to marital communications privilege.

Hawaii Court Martial Lawyer

Hawaii Court Martial Lawyer

MRE Evidence Rule 513. Psychotherapist Patient Privilege.

Rule 513 provides a limited privilege for communications to psychotherapists and counselors. The privilege is applicable only to actions taken under the UCMJ and it is not a broader doctor-patient privilege. In United States v. Rodriguez, 54 M.J. 156 (2000), the Court affirmed the Army Courts ruling that Jaffee v. Redmond does not create a psychotherapist-patient privilege in the military. In United States v. Paaluhi, 54 M.J. 181 (2000), consistent with Rodriguez, the court held that Jaffe v. Redmond does not establish a psychotherapist-patient privilege in the military. The CAAF reversed the conviction, but, holding it was ineffective assistance for the defense counsel to tell the accused to talk to a Navy psychologist without first getting the psychologist appointed to the defense team. Quasi psychotherapist-patient privilege also exists in specific circumstances:
Where psychiatrist or psychotherapist is detailed to assist the defense team, communications are protected as part of attorney-client confidentiality. See United States v. Tharpe, 38 M.J. 8, 15 n.5 (C.M.A. 1993)
Communications made by an accused as part of a sanity inquiry as per Rule 302. See United States v. Toledo, 26 M.J. 104 (C.M.A.), cert. denied, 488 M.J. 889 (1988). C

Confidentiality privilege for statements made during mental responsibility exams may not generally apply retroactively to exams that the military judge considers as adequate substitute for court-ordered R.C.M. 706 examinations. See United States v. English, 44 M.J. 612 (N.M.Ct.Crim.App. 1996), revd on other grounds, 47 M.J. 215 (1997).

Court Martial Military Rule of Evidence MRE 503

Court Martial Military Rule of Evidence MRE 504. Husband-Wife Privilege.

Rule 504 reflects the Supreme Courts ruling in Trammel v. United States, 445 U.S. 40 (1998), in which the Supreme Court held that the witness spouse alone has the privilege to not testify adversely. A defendant spouse can only assert the privilege about confidential communications. Hence, one spouse can refuse to testify against the other. Confidential communications made during marriage are privileged, and that privilege can be asserted by the spouse who made the communication, or on his behalf by or the spouse to whom it was made at the time of or after the marital relationship. The rule contains many exceptions to the privilege, most importantly: (1) if the accused is charged with a crime against the person or property of the spouse OR A CHILD OF EITHER; and (2) when, when the testimony is to be given, the marriage has been terminated by divorce or annulment. To prevent unwarranted discrimination among child victims, the term a child of either was amended in 2007 and includes not only a biological child, adopted child, or ward of one of the spouses but also includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is: (i) an individual below the age of 18; or (ii) an individual with a mental handicap who functions under the age of 18. Before this amendment, there was no de facto child privilege in the military. See United States v. McCollum, 58 M.J. 323(2003). Rule 504(c)(2)(A) requires a lega parental relationship, as opposed to a custodial relationship, to trigger the child of either exception.