2007
United States v. Harrow, 65 M.J. 190 (in this case, the
military judge erred when he determined that a failure to remember
facts contained in a prior statement cannot be inconsistent with
in-court testimony that differs from those facts; an inconsistency for
purposes of MRE 613 may be found not only in diametrically opposed
answers, but also in inability to recall, or equivocation; a military
judge has considerable discretion to determine if the trial testimony
is inconsistent with a prior statement; but here the military judge
appears not to have understood that an inability to recall or a
non-responsive answer may present an inconsistency for purposes of MRE
613; consequently, his evidentiary ruling, based on an incorrect
understanding of the law, was an abuse of discretion).
(the military judge did not
abuse his discretion in rejecting a defense attempt, under the guise of
impeachment by inconsistent testimony, to bring in new evidence that
related to a point that the witness had not testified to at trial; the
witness was not asked about this point during his testimony, there was
no inconsistency, and the defense had not established a foundation for
later impeachment).
United States v. Carruthers, 64 M.J. 340 (a military
judge’s discretionary authority to limit cross-examination arises only
after there has been permitted as a matter of right sufficient
cross-examination).
(the military judge did not
abuse his discretion in precluding the defense counsel’s
cross-examination of a co-conspirator regarding his possible sentence
under a plea agreement, where the defense counsel had already engaged
in a lengthy cross-examination regarding the plea agreement which
brought to light the co-conspirator’s possible motive to testify
falsely, and the military judge determined that the probative value of
further inquiry into the co-conspirator’s possible sentence under the
plea agreement was substantially outweighed by the danger of misleading
the members; the military judge did not deny the defense the right to
examine the possibility of bias, but rather simply limited its ability
to inquire about yet another aspect of the plea agreement, when the
agreement’s bearing on bias had already been thoroughly explored).
(once the accused has been
allowed to expose a witness’s motivation in testifying, it is of
peripheral concern to the Sixth Amendment how much opportunity defense
counsel gets to hammer that point home to the members).
(while counsel may request
specific instructions from the military judge, the judge has
substantial discretionary power in deciding on the instructions to
give).
(the military judge did not
abuse his discretion in denying a defense-requested instruction on
government witnesses testifying under a promise of leniency; although
the overall thrust of the requested instruction was correct, the
standard accomplice instruction that the military judge gave
substantially covered the leniency offered the witnesses and addressed
their possible motives to lie as a result of their favorable pretrial
agreements, and the denial of the requested instruction did not deprive
the accused of a defense or seriously impair his ability to present a
defense).
United States v. Lee, 64 M.J. 213 (in this case, the
military judge abused his discretion in refusing a defense request for
expert assistance in a child pornography case where a government
witness offered expert testimony that the images taken from the
accused’s computer were real and not computer-generated based on a
novel digital media analysis; the issue whether the images were real or
virtual was the critical issue, and the defense counsel did not have
the qualifications or expertise to challenge the image analysis
presented by the government’s expert witness; on the facts of this
case, the defense made an adequate showing of necessity where the
requested expert assistance would provide the basis upon which defense
counsel could cross-examine the government expert and possibly
challenge the actual or real nature of the graphic images).
2001