Rule 608 Bias as the basis of impeachment in a court martial
Bias, prejudice, or any motive to misrepresent can 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.
Rules should be read to allow liberal admission of bias-type evidence. See United States v. Hunter, 21 M.J. 240 (C.M.A.), cert. denied, 476 U.S. 1142 (1986). In United States v. Aycock, 39 M.J. 727 (N.M.C.M.R. 1993) the military judge abused his discretion and committed prejudicial error by disallowing extrinsic evidence of a government witness bias and motive to testify falsely (anger and resentment toward the appellant through loss of $195 wager).
In United States v. Bahr, 33 M.J. 228 (C.M.A. 1991), the 14 year-old alleged victim testified about sodomy and indecent acts by her stepfather. Defense attempted to introduce extracts from her diary showing a profound dislike of her mother and home life. The military judge held the extracts were inadmissible, and prevented the defense from examining the alleged victim about a prior false claim of rape, and alleged advice to her friends to turn in their family members for child sexual abuse. The rulings were evidentiary and constitutional error. Victim's hatred of her mother could be motive to hurt mothers husband.
In United States v. Moss, 63 M.J. 233 (2006), the issue was whether the exclusion of evidence of bias under Rule 608(c) raises issues concerning the accused's Sixth Amendment right to confrontation? Yes. An accused's right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes an accused from exploring an entire relevant area of cross-examination. The military judge erred while he disallowed evidence that the accused sought in order to challenge the credibility of the alleged victim. It is the members role to determine whether the alleged victims testimony is credible or biased. As such, bias evidence, if logically and legally relevant, are matters properly presented to the members.
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