2014 (September Term)
United States v. Piren, 74 M.J. 24 (when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility).
(MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction).
(impeachment by contradiction is a line of attack that involves showing the tribunal the contrary of a witness’s asserted fact, so as to raise an inference of a general defective trustworthiness or that the accused is capable of error).
(MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction).
2010 (September Term)
United States v. Sullivan, 70 M.J. 110 (the Confrontation Clause preserves the right of an accused to be confronted with the witnesses against him; this right includes the right to cross-examine witnesses, including on issues of bias and credibility).
(the rules of evidence should be read to allow liberal admission of bias-type evidence).
(an accused does not have a right to cross-examine a witness on any subject solely because he describes it as one of credibility, truthfulness, or bias; there must be a direct nexus to the case that is rooted in the record; that is, the evidence must be logically relevant as required by MRE 401, and it must also be legally relevant in accordance with the MRE 403 balancing test; in short, the right to cross-examine is the right to question where the proffer establishes a real and direct nexus to a fact or issue at hand).
United States v. Webb, 66 M.J. 89 (like other forms of exculpatory evidence, impeachment evidence is material to guilt or punishment only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; under the reasonable probability standard of materiality, the question is not whether the accused would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial; therefore, a reasonable probability of a different result is shown when the governmentís evidentiary suppression undermines confidence in the outcome of the trial; failing to disclose such evidence is a due process violation irrespective of the good faith or bad faith of the prosecution).
United States v. Harrow, 65 M.J. 190 (the process of
impeachment by prior inconsistent statement is a tool to attack the
credibility and/or recollection of a witness; by showing
self-contradiction, the witness can be discredited as a person capable
of error; MRE 613(b) provides that 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 explain or deny the same;
if the inconsistency is admitted, extrinsic evidence is generally not
admissible; if the inconsistency is not admitted, or the witness
equivocates, extrinsic evidence may be admitted, but only for
United States v. James, 61 M.J. 132 (MRE 608(c) provides that 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).
United States v. Saferite, 59 MJ 270 (MRE 608(c) provides that bias, prejudice, or any motive to misrepresent may be shown to impeach a witness either by examination of the witness or by evidence otherwise adduced; evidence of bias can be powerful impeachment; proof of bias is almost always relevant; although extrinsic evidence of specific acts of misconduct may not be used to prove a witnessís general character for truthfulness, it may be used to impeach a witness by showing bias).
United States v. Simpson, 56 MJ 462 (to ensure that the answers given may only be used for impeachment purposes, the defense must request a specific instruction under Mil.R.Evid. 105; the failure to request such an instruction constitutes a waiver absent plain error).
United States v. Goldwire, 55 MJ 139 (it is not reasonable to conclude that attacks on the credibility of a speakerís statement are excluded merely because the statement is admitted as made by a party-opponent; when the defense affirmatively introduces the accusedís statement in response to the prosecutionís direct examination initially admitting some portion of the statement, the prosecution is not prohibited from impeaching the declarant under Mil. R. Evid. 806).
United States v. Halford, 50 MJ 402 (an expert may be cross-examined on documents and opinions that expert used to formulate expert opinion testimony when those documents or opinions were reasonably relied upon by the expert to reach his/her conclusions).