CORE CRIMINAL LAW SUBJECT: Witnesses: Generally

2014 (September Term)

United States v. Piren, 74 M.J. 24 (MRE 611(b) provides that cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness). 

(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). 

(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). 

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).

2012 (September Term)

United States v. Brown, 72 M.J. 359 (MRE 611(a) provides that the military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment; similarly, pursuant to Article 36, UCMJ, the President has directed that military judges shall ensure that the dignity and decorum of the proceedings are maintained and exercise reasonable control over the proceedings to promote the purposes of the RCMs and the MCM; courts-martial should be conducted in an atmosphere that is conducive to calm and detached deliberation and determination of the issues presented, and the military judge should prevent unnecessary waste of time and promote the ascertainment of truth). 


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