2014 (September Term)
United States v. Piren, 74 M.J. 24 (an accused who exercises his right to testify takes his credibility with him to the stand, and it may be assailed by every proper means; this is reflected in MRE 611(b), which allows cross-examination into the subject matter of the direct examination and matters affecting the credibility of the witness).
(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).
2013 (September Term)
United States v. Knapp, 73 M.J. 33 (it is the exclusive province of the court members to determine the credibility of witnesses).
(where an AFSOI agent testified that, using his specialized training, he was able to determine from specific nonverbal clues that appellant was being deceptive when he provided an innocent account of the events in question, this testimony was impermissible human lie detector testimony and improperly usurped the members’ role in determining witness credibility).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. Savala, 70 M.J. 70 (the CCA did not clearly err in concluding that the prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution).
(issues of witness credibility and motive are matters for the members to decide).
2009 (September Term)
States v. Mullins, 69 M.J. 113 (in a trial
involving the sexual assault of a
child, an expert may testify as to what symptoms are found among
have suffered sexual abuse and whether the child-witness has exhibited
symptoms; however, an expert may not testify regarding the credibility
believability of a victim, or opine as to the guilt or innocence of an
(it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false; such an inference derived from expert testimony invades the province of the members to determine the credibility of witnesses; an expert inference that there was a 1 in 200 chance the victim is lying undermines the duty of the panel members to determine guilt beyond a reasonable doubt).
United States v. Brooks, 64 M.J. 325 (credibility quantification testimony implicates the very concerns underlying the prohibition against human lie detector testimony; it invades the province of the court members to determine the credibility of the victim and violates the limitations of MRE 608 on admissible testimony relating to truthfulness).
United States v. Dobson, 63 M.J. 1 (the military judge erred when he prevented appellant from introducing corroborating evidence when her credibility was attacked; such evidence is admissible to rebut a claim of recent fabrication under MRE 801(d)(1)(B)).
United States v. Saferite, 59 MJ 270 (during sentencing, as at every other moment of trial testimony, the credibility of a witness is an omnipresent issue; each witness’s credibility determines the authority of the testimony; Section VI of the Military Rules of Evidence is entitled “Witnesses,” but easily could be viewed as “Credibility of Witnesses” as the whole section focuses on technical evidentiary rules to bolster or to attack the credibility of testimony).
(MRE 608 is a key evidentiary rule that covers several methods to bolster or attack the credibility of a witness; these methods include opinion and reputation evidence as to the character of a witness for truthfulness and questions regarding specific instances of conduct that may be relevant to credibility).
United States v. Goldwire, 55 MJ 139 (it is not reasonable to conclude that attacks on the credibility of a speaker’s statement are excluded merely because the statement is admitted as made by a party-opponent; when the defense affirmatively introduces the accused’s statement in response to the prosecution’s 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. Hart, 55 MJ 395 (Mil. R. Evid. 806 permits attacks upon the credibility of a hearsay declarant as well as attacks upon the declarant of a statement which is not hearsay under Mil. R. Evid. 801(d)(2)(C), (D), or (E)).
(where pretrial statements made by appellant are elicited during cross-examination as “state of mind” evidence, appellant is then treated as a declarant/testifying witness and the government may properly introduce reputation and opinion evidence to impeach appellant’s truthfulness pursuant to Mil. R. Evid. 806).
(once defense counsel’s cross-examination introduced appellant’s exculpatory pretrial statements, it was appropriate to introduce character evidence as to appellant’s untruthfulness).
United States v. Whitney, 55 MJ 413 (human lie detector testimony is inadmissible).
United States v. Jenkins, 54 MJ 12 (MRE 608(a) permits the credibility of a witness to be supported or attacked by opinion evidence, but that opinion evidence may refer only to the witness’ character for truthfulness or untruthfulness; a witness may not, however, opine that another witness is lying or telling the truth).
(it is improper for a trial counsel to compel a defendant to state that the witnesses testifying against him are lying).
(while it is improper for a trial counsel to compel a defendant to state that the witnesses testifying against him are lying, each such case will be reviewed on a case-by-case basis to determine if the improper cross-examination was prejudicial).
(trial counsel’s improper questioning, which was designed to compel the accused to state that the witnesses testifying against him were lying, was not plain error where: (1) defense counsel’s theme of the case was that the accused had been framed by his co-actors; (2) accused declined to respond to trial counsel’s questions about whether certain witnesses were lying; and (3) even though the accused did testify that a law enforcement officer was testifying falsely, that error was harmless where trial counsel’s questions merely reinforced the defense theory of the case).United States v. Baumann, No. 00-0076, 54 MJ 100 (evidence of uncharged misconduct by appellant offered to show the credibility of appellant’s wife and her children as witnesses at appellant’s court-martial would have to be considered under MRE’s 608(c) and 403).