CORE CRIMINAL LAW SUBJECTS: Witnesses: Confrontation


2012 (September Term)

United States v. Squire, 72 M.J. 285 (the Confrontation Clause bars admission of the testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination). 

(a comprehensive definition of testimonial statements under the Confrontation Clause has not been articulated, but the analysis is fact specific, meaning that it is contextual, rather than subject to mathematical application of bright line thresholds; the goal is an objective look at the totality of the circumstances surrounding the statement; factors used in determining whether a given statement is testimonial include whether: (1) the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, (2) the statement involved more than a routine and objective cataloging of unambiguous factual matters, and (3) the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial). 

(statements made by a female eight-year-old victim after an alleged sexual assault to a physician when he took her medical history prior to performing a sexual assault examination were not testimonial for Confrontation Clause purposes where the physician was primarily acting for the purpose of providing medical treatment; his practice was always to take a medical history before performing a physical exam, and the history was ultimately medically significant to his conclusion that there had been physical penetration of the vagina; even though the physician was aware of the possible law enforcement consequences of the exam and he was a mandatory reporter of cases involving child sexual assault victims under state law and completed a state-mandated form while conducting the exam, he was not acting in a law enforcement capacity; here, the connection to law enforcement was the general requirement that the physician, as a mandatory reporter under state law, must report and document possible sexual abuse of children after conducting a forensic examination; this general requirement, which broadly covers health care professionals, employees of public and private schools, child care providers, and providers of recreational and sports activities, was not alone sufficient to establish that the physician was acting in a law enforcement capacity). 

(statements made by a female eight-year-old victim after an alleged sexual assault to an emergency room physician when the physician took her medical history were not testimonial for Confrontation Clause purposes where the primary purpose of the statements was to facilitate medical treatment for a possible sexual assault; the victim’s mother brought the victim to the emergency room on her own volition, without having been advised by or even seeking to contact law enforcement personnel, the emergency room physician did not conduct a forensic examination, and in taking the patient’s history, the physician asked questions to the victim that were narrow in scope, fact oriented, and limited to addressing the victim’s emergency medical condition and its causes). 

United States v. Jasper, 72 M.J. 276 (while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading). 

(a military judge’s erroneous ruling  that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, violated appellant’s rights to confrontation and due process, given that (1) the alleged victim’s testimony was critical to the government’s case, (2) the erroneous exclusion of the alleged victim’s exculpatory statements prevented appellant from exposing the alleged nefarious motivation behind her allegations and testimony, and (3) appellant’s theory of the case was that both his wife and the alleged victim were lying; the military judge’s ruling prevented appellant from using the alleged victim’s statements to impeach her credibility through cross-examination or otherwise; in addition, the military judge’s error prevented appellant from presenting the alleged victim’s exculpatory statements to the panel through the pastor’s direct testimony, depriving him of relevant, material, and vital testimony and evidence). 

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (the exception for constitutionally required evidence in MRE 412(b)(1)(C) includes the accused’s Sixth Amendment right to confrontation; an accused has a constitutional right to be confronted by the witnesses against him, and that right necessarily includes the right to cross-examine those witnesses; in particular, the right to cross-examination has traditionally included the right to impeach, i.e., discredit the witness). 

(an accused is not simply allowed cross-examination that is effective in whatever way, and to whatever extent, the defense might wish; indeed, trial judges retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant; but no evidentiary rule can deny an accused of a fair trial or all opportunities for effective cross-examination). 

United States v. Sweeney, 70 M.J. 296 (in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him). 

(testimonial hearsay may not come into evidence without cross-examination of the declarant unless (1) the declarant is unavailable, and (2) the declarant was subject to prior cross-examination on the hearsay).

(although reasonable minds may disagree about what constitutes testimonial hearsay, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; thus, a document created solely for an evidentiary purpose made in aid of a police investigation, ranks as testimonial). 

(testimonial statements include a formalized certification of results contained in a drug testing report requested by the prosecutor; however, it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial). 

(it is emphatically not the case that a statement is automatically nontestimonial by virtue of it being a routine statement of unambiguous factual matters; indeed, most witnesses testify to their observations of factual conditions or events, but this does not render such observations nontestimonial; that a statement is routine is relevant only to whether that statement is made in the ordinary course of business, which of course does not determine whether the statement is testimonial; moreover, that factual matters may be unambiguous means only that a declarant need be competent to perceive them; it does not mean the declarant was honest in reporting them - an equal concern of the Confrontation Clause). 

(in determining whether statements in a drug testing report are testimonial under the Confrontation Clause, the focus has to be on the purpose of the statements in the report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing; the relevant question is thus whether the statement is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary). 

(although those performing initial drug tests may well be independent scientists carrying out non-adversarial public duties, that does not mean that their statements are not produced to serve as evidence; where an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information; this is all the more evident where the government expert testifies that the forensic laboratory’s mission is to provide urinalysis drug testing that is scientifically valid and forensically acceptable as evidence in courts of law). 

(the formality of a document generated by a forensic laboratory is a factor to be considered when determining whether a document is testimonial).

(the admission of a cover memorandum results certification of a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the memorandum was testimonial where the laboratory made it after appellant had been charged, addressed it to the legal service office, and included the formulaic language for authenticating a business record - language one would expect to find only on a document made for an evidentiary purpose). 

(the admission of a specimen custody document certification from a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the certification was testimonial where it was a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated that the laboratory results were correctly determined by proper laboratory procedures, and that they were correctly annotated; such a formal certification has no purpose but to function as an affidavit; because the declarant of the certification was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause). 

(the admission of the chain of custody documents, data review sheets, and results report summary from a drug testing report for appellant’s urinalysis (along with their stamps, signatures, and other notations) did not constitute plain error; these documents were not plainly and obviously testimonial where they were neither formalized, affidavit-like statements, nor statements made in a formal setting). 

United States v. Gaddis, 70 M.J. 248 (the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process). 

(under balancing test of MRE 412, a court must ask whether appellant’s constitutional right to cross-examination has been violated). 

(an accused has a Sixth Amendment right to confront the witnesses against him; it is well settled that the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; a limitation on an accused’s presentation of evidence related to issues such as bias or motive to fabricate may violate an accused’s right to confront witnesses; however, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant).   

(once an 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 jury). 

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).

(a military judge retains wide latitude to impose reasonable limits upon cross-examination).

(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 Sixth Amendment right of confrontation includes the constitutionally protected right of cross-examination; the right of cross-examination includes the opportunity to inquire into otherwise inadmissible matters if the prosecution, through its presentation, opens the door to consideration of such matters; the right of confrontation is subject to limitations, including the authority of the court to restrict the scope of cross-examination to avoid problems such as harassment, prejudice, confusion of the issues, or repetitive interrogation). 

(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).

United States v. Cavitt, 69 M.J. 413 (the Confrontation Clause is not satisfied by reliability - it requires confrontation of the declarant of testimonial hearsay).

 

(a surrogate expert witnessís testimony regarding drug test results violated the Confrontation Clause of the Sixth Amendment in a prosecution for wrongful use of marijuana, where the testimony drew attention to and repeated portions of the testimonial hearsay contained on the drug test report cover memorandum). 


United States v. Dollar, 69 M.J. 411 (the preadmission of two drug testing report cover memoranda through a surrogate expert witness to prove a charge of wrongful use of cocaine violated the Confrontation Clause of the Sixth Amendment where the declarants who made statements on the cover memoranda did not testify).

 

United States v. Blazier, 69 M.J. 218 (the signed, certified cover memoranda on a drug testing report - prepared at the request of the government for use at trial, and which summarized the entirety of the laboratory analyses in the manner that most directly bore witness against appellant - are testimonial under current Supreme Court precedent). 

(the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination).

 

(where testimonial hearsay is admitted, the Confrontation Clause is satisfied only if the declarant of that hearsay is either (1) subject to cross-examination at trial, or (2) unavailable and subject to previous cross-examination). 

 

(an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay machine-generated printouts of machine-generated data, and/or (2) rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expertís own; however, the Confrontation Clause may not be circumvented by an expertís repetition of otherwise inadmissible testimonial hearsay of another). 

 

(the ďwitnessĒ that the accused has the right to confront is the declarant; the right of confrontation is not satisfied by confrontation of a surrogate for the declarant; and ďreliabilityĒ is no substitute for this right of confrontation; while ďreliabilityĒ is the end, the right of confrontation is the means, and it is the means (rather than the end) that the Sixth Amendment insists upon; substitute means of ensuring reliability do not satisfy the Confrontation Clause, no matter how efficacious they might be; the right of confrontation is the right to confront and cross-examine the actual witness who made the testimonial statement). 

 

(it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular). 

 

(the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC ß 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity). 

 

(neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay). 

 

(although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witnessís testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witnessís testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witnessís conclusions). 

 

(statements prepared in anticipation of litigation are not business records and, even if a document might otherwise be a business record, if it is testimonial hearsay, its admission violates the Confrontation Clause).


2009 (September Term)
 

United States v. Smith, 68 M.J. 445 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the right to confrontation includes the right of a military accused to cross-examine adverse witnesses).

 

(uncovering and presenting to court members a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; through cross-examination, an accused can expose to the members the facts from which they could appropriately draw inferences relating to the reliability of the witness). 

 

(even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victimís credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victimís credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellantís extant theory of fabrication).


United States v. Blazier, 68 M.J. 439 (the Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this gives accuseds the right to question not only witnesses providing oral, in-court testimony, but also the declarant of any hearsay that is testimonial; before such testimonial hearsay may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness and that the witness be unavailable). 


2008 (September Term)

United States v. Collier, 67 M.J. 347 (the exposure of a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination).

 

(through cross-examination, an accused can expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness).

 

(a limitation on an accusedís presentation of bias evidence may be a violation of the Sixth Amendment right to confront witnesses; the question is whether a reasonable jury might have received a significantly different impression of the witnessís credibility had defense counsel been permitted to pursue his proposed line of cross-examination). 

 

(the right of cross-examination is not unlimited; the accusedís confrontation right does not give, for example, free license to cross-examine a witness to such an extent as would hammer the point home to the jury).

 

(whether sufficient cross-examination has been permitted depends on whether the witnessís motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading). 

 

(the military judge erred in prohibiting appellantís defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judgeís ruling prevented appellantís counsel from fully exploring this government witnessís bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witnessís credibility; as such, the military judgeís ruling was a violation of appellantís Sixth Amendment right to confront a witness against her).


(trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witnessís safety, or interrogation that is repetitive or only marginally relevant).


(while MRE 611, a rule which allows a military judge to control the scope and mode of interrogating witnesses, permits a military judge to impose limitations on the length and details of cross-examination, it does not purport to authorize preemptively shutting the door completely on otherwise relevant cross-examination). 

 

United States v. Clayton, 67 M.J. 283 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him; this right applies to testimonial statements made out of court because the declarant is a witness within the meaning of the Sixth Amendment, and thus the accused must be afforded the right to cross-examine that witness). 

 

United States v. Crudup, 67 M.J. 92 (the denial of an accusedís Sixth Amendment right to cross-examine a witness may be tested for harmlessness).

 

(a Sixth Amendment error in admitting an out-of-court statement that appellantís wife made to the military police regarding appellantís assault on her and their infant son was harmless beyond a reasonable doubt, where the statement was unimportant in relation to everything else the military judge considered on the issue, the statement was cumulative, other evidence corroborated the statement, the defense was permitted to impeach the wifeís credibility with a prior conviction for fraud, and the governmentís case was quite strong, including eyewitness testimony, corroborating physical injuries, and appellantís partial confession; the statement did not contribute to the verdict as it was unimportant in relation to the other evidence of record). 


2008 (Transition)

United States v. Pack, 65 M.J. 381 (one-way closed-circuit testimony from a child witness in a criminal trial is admissible and consonant with the requirements of the Confrontation Clause when: (1) the court determines that it is necessary to protect the welfare of the particular child witness; (2) the court finds that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the trial court finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis). 

 

(the case of Maryland v. Craig, 497 US 836 (1990), continues to control the questions whether, when, and how, remote testimony by a child witness in a criminal trial is constitutional; the case of Crawford v. Washington, 541 US 36 (2004), did not so undermine the reasoning in Craig that an appellate court is free to disregard Craig and hold that anything short of face-to-face confrontation at trial violates the Sixth Amendment).

 

(appellant was not denied his Sixth Amendment right to confront his accuser when the military judge permitted the child victim to testify from a remote location via a one-way closed-circuit television, where the military judge found that there was a need to protect the child witness, the child would be traumatized by the presence of the accused, and the emotional distress suffered by the child would be more than de minimis).

 

2007

United States v. Cabrera-Frattini, 65 M.J. 241 (the Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him). 

 

(before testimonial statements may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness, and that the witness be unavailable). 

 

(in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witnessís presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness). 

 

(some of the factors that should be considered to determine the unavailability of a witness for Sixth Amendment purposes include the importance of the testimony, the amount of delay necessary to obtain the in-court testimony, the trustworthiness of the alternative to live testimony, the nature and extent of earlier cross-examination, the prompt administration of justice, and any special circumstances militating for or against delay; where the absence of the witness results from illness, a court should also consider the nature of the illness and the probable duration of the illness). 

(the military judge did not abuse his discretion by concluding that the government had made good faith efforts to procure a thirteen-year-old witnessís presence for trial and by finding that the witness, who suffered from bipolar disorder and post-traumatic stress syndrome, was unavailable for Confrontation Clause and MRE 804(a)(4) purposes based on the witnessís medical records and the testimony of a board-certified child psychiatrist that testifying would be detrimental to the witnessís mental and physical health, including possible suicide at both the time of trial and the foreseeable future; in this case, (1) the government had subpoenaed the witness, issued her travel orders, and made arrangements to fly them to the court-martial, (2) the witnessís hospitalization prevented her from complying with the subpoena, (3) the witness had two significant psychiatric illnesses and was taking a brain protectant/antipsychotic drug and a mood stabilizer drug, and (4) the psychiatrist not only testified that it would be detrimental to witnessís mental and physical health now and in the foreseeable future to testify at the court-martial or any hearing regarding the charges that were before the court, but that any court appearance would re-traumatize her and would worsen her mental and physical health to include her possible suicide). 

(there is ample precedent for finding a witness, even a critical one, unavailable where the act of testifying in court is determined to be detrimental to the witnessís physical or mental well-being; unavailability is clear when the witness is not expected to improve).

 

United States v. Carruthers, 64 M.J. 340 (the exposure of a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; however, the Confrontation Clause of the Sixth Amendment does not prevent a trial judge from imposing any limits on a defense counselís inquiry into the potential bias of a prosecution witness; trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witnessís safety, or interrogation that is repetitive or only marginally relevant; the judge may restrict cross-examination when the probative value of the evidence sought would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members).

 

(a military judgeís 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 counselís 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-conspiratorís possible motive to testify falsely, and the military judge determined that the probative value of further inquiry into the co-conspiratorís 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 agreementís bearing on bias had already been thoroughly explored). 

 

(once the accused has been allowed to expose a witnessís 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). 


2006

United States v. Moss, 63 M.J. 233 (when the military judge excludes evidence of bias, the exclusion raises issues regarding an accusedís Sixth Amendment right to confrontation). 

 

(an accusedís right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes him from exploring an entire relevant area of cross-examination). 

 

(the military judgeís exclusion of relevant evidence that alleged child victim had a motive to fabricate rape allegations against the accused denied the accused his fundamental right of confrontation and cross-examination at court-martial on charges of rape, forcible sodomy, and indecent acts).

2005

 

United States v. Israel, 60 M.J. 485 (a defendantís right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes a defendant from exploring an entire relevant area of cross-examination). 
 
(evidence of the rates of untestable samples produced by a drug testing program during the months before and after the accusedís urinalysis was tested indicated some type of irregularity in the collection or shipping process; these irregularities could have been used to attack the testimony of the drug testing program manager that the standard procedures always were followed and those procedures were reliable; because this evidence of irregularities in the collection process was closely related in time to the collection of the accusedís sample, the military judge abused his discretion in excluding this evidence from use by the defense on cross-examination). 
 
(evidence that a standard calibration error occurred more than once in the same month in which the accusedís urine sample was collected and tested raised questions about the reliability of the machines used in the testing process and the reliability of the results of the test; these questions could have been used to attack the testimony of the government lab expert whose generalized testimony relied upon the ďgold standard in drug testingĒ and a presumption of regularity in the testing process; because this evidence related to the testing process that was closely related in time and subject matter to the test at issue, the military judged abused his discretion in excluding it where it may have been relevant and admissible to attack the general presumption of regularity in the testing process).   
 
(while a period of nine months between a reported laboratory error of a false-positive test result and the testing process at issue may well be too remote in other cases, under the circumstances of this case it is not; the reliability of the testing process will always be relevant in drug test cases to establish the admissibility of the test results; where the government goes well beyond establishing reliability and raises the bar by characterizing the testing process as a ďMercedesĒ and that the process is the ďgold standardĒ in drug testing, it opens the door to a broader time frame during which laboratory errors may be relevant to challenge the testing process; for this reason, the military judge abused his discretion in excluding this report of a false-positive test result).
 
(the military judge did not abuse his discretion in precluding cross-examination of the government lab expert about an annotation error that occurred three years prior to the accusedís urine test, where there was no annotation error with respect to the accusedís sample and the earlier error was too far removed in both subject matter and time to be relevant to the reliability of the accusedís test results). 
 
(the military judge did not abuse his discretion in precluding cross-examination of the government lab expert about a lab employee who, a year and a half prior to the accusedís urine test, made a testing error and then deliberately falsified documents to cover up that error, where the incident was not related to the accusedís test other than it took place at the same laboratory, where the offending employee was no longer employed at the laboratory when the accusedís sample was tested, and where the incident was too remote in time and subject matter to be relevant to challenge the expertís conclusion that the urinalysis test results were valid).
 
(the military judge did not abuse his discretion in precluding cross-examination of the government lab expert about incidents in which individuals were not properly logged into or out of the lab, where the evidence of the minor errors in the log book did not concern the area where the urine samples were tested or stored and where the evidence was neither probative of nor relevant to the reliability of the testing process).

United States v. James, 61 M.J. 132 (a judge may limit the defenseís cross-examination of a prosecution witness regarding the terms of a plea agreement entered into by the witness, so long as adequate inquiry into possible bias of that witness has been allowed through other lines of questioning). 
 
(this Court has recognized that the exposure of a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; it does not follow that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counselís inquiry into the potential bias of a prosecution witness; on the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witnessís safety, or interrogation that is repetitive or only marginally relevant).
 
(a military judge did not impermissibly infringe upon an accusedís Sixth Amendment right to confrontation by precluding the defense from questioning a witness regarding a specific term of the witnessís pretrial agreement where the judge allowed inquiry into the possible bias and motive to lie of the witness through other questions about his pretrial agreement - specifically that (1) he had a pretrial agreement in his own court-martial; (2) as part of that pretrial agreement he pleaded guilty and entered into a stipulation of facts; (3) he had immunity for his testimony in the accusedís court-martial; (4) his pretrial agreement required him to cooperate with the Government against his best friend; and (5) although he had been sentenced, clemency was still pending in his case, and as part of that process, he would be able to tell the convening authority that he had cooperated and testified against the accused; the limitations placed on cross-examination by the military judge were within his discretion and did not affect the accusedís core constitutional right to cross-examination; once the defense had been allowed to expose the witnessís motivation in testifying, it was of peripheral concern to the Sixth Amendment how much opportunity the defense got to hammer that point home to the factfinders). 
 
(a military judge has wide discretion to limit repetitive cross-examination or to prohibit cross-examination that may cause confusion). 
 
United States v. Rhodes, 61 M.J. 445 (admission of co-actorís prior statement implicating the accused in drug offenses did not violate the accusedís Sixth Amendment right to confrontation where co-actor took the stand, testified, and was subject to cross-examination, notwithstanding the fact that the co-actor now professed to have no memory of the accusedís involvement in the offenses).

(the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish; the opportunity for cross-examination is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief; rather, it is sufficient that the accused has the opportunity to bring out such matters as the witnessís bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory; the weapons available to impugn the witnessís statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee). 


(when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraint at all on the use of his prior testimonial statements).


United States v. Scheurer, 62 M.J. 100 (in the military, spousal incapacity allows the witness spouse, not the accused, to decide whether to testify).


(a spouse who invokes the spousal incapacity rule in refusing to testify against her husband was unavailable to testify for the purposes of the Confrontation Clause; United States v. Hughes, 28 M.J. 391 (C.M.A. 1989) is overruled to the extent that it holds a spouse who invoked spousal incapacity remains available for confrontation purposes). 


(the Confrontation Clause forbids the admission of testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify, and the accused had had a prior opportunity for cross-examination; in this case, this rule did not apply to preclude the admission of pretrial conversations between the accusedís wife and a co-worker during which the accusedís wife implicated both her husband and herself in ongoing drug offenses because the wifeís statements were not testimonial, where the governmentís role in obtaining the statements amounted only to the facilitation of the recording of the wifeís statements and no direction or suggestion).


(where the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if:  (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness). 


2003

 

United States v. Hall, 58 MJ 90 (the right to cross-examination is at the core of the confrontation clause).


(where the government pitted appellant against hearsay attributed to her own mother without affording appellant the opportunity to test the reliability or trustworthiness of her motherís statements by cross-examination, appellant was denied her constitutional right of confrontation through cross-examination).


United States v. McCollum
, 58 MJ 323 (if the Government makes an adequate showing of necessity, the Government interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant; the showing of necessity must not be a generalized one; the trial judge must make a case-specific finding that testimony outside the presence of the accused is necessary to protect the welfare of the particular child who seeks to testify; moreover, denial of face-to-face confrontation is only necessary to protect a child witness from trauma where it is the presence of the defendant that causes the trauma; finally, before a court denies an accused the right to confront a witness face-to-face, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify).


(M.R.E. 611(d)(3) authorizes remote live testimony where the military judge makes a finding on the record that a child is unable to testify in open court in the presence of the accused, for any of the following reasons: (A) The child is unable to testify because of fear; (B) There is substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying; (C) The child suffers from a mental or other infirmity; or (D) Conduct by an accused or defense counsel causes the child to be unable to continue testifying).


2001

United States v. Bridges, 55 MJ 60 (the right to confrontation and cross-examination means that the prosecution must present the hearsay declarant at trial in an attempt to elicit the out-of-court statement directly from the witnessís lips while on the witness stand and under oath).

(there is a preference for face-to-face confrontation at trial, and hearsay is admissible if the witness is unavailable and the hearsay either falls within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness).

(the Sixth Amendment right to confront and cross-examine a witness establishes a rule of necessity; usually, the prosecution must either produce, or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant).

(the Confrontation Clauseís very mission of advancing the accuracy of the truth-determining process in criminal trials must be balanced against witness unavailability; in some instances, where the utility of confrontation is remote or a hearsay exception is firmly rooted, the unavailability requirement is inapplicable; but where an exception is not firmly rooted, the prosecution is required to establish unavailability and particularized guarantees of trustworthiness).

(appellantís waiver of cross-examination, after the military judgeís specific question about whether the defense had any questions of the witness, satisfied the unavailability requirements of the Confrontation Clause).

United States v. McDonald, 55 MJ 173 (the Sixth Amendment right of confrontation does not apply to the sentencing portion of a non-capital court-martial).

2000

United States v. Taylor, 53 MJ 195 (appellant was not denied his right to confront witnesses against him where agent who testified about admissions made by appellant was present throughout entire interview and the record showed that he was testifying based on his own personal knowledge of the admissions made during that interview).

United States v. McElhaney, 54 MJ 120 (the Sixth Amendment protects an accusedís right to confrontation and cross-examination, and Mil. R. Evid. 611(b) establishes the scope of cross-examination at trials by courts-martial limiting cross-examination to ďthe subject matter of the direct examination and matters affecting the credibility of the witnessĒ; trial judge may also exercise discretion to limit cross-examination based on concerns about harassment, prejudice, confusion of issues, the witnessí safety, or interrogation that is repetitive or only marginally relevant).

(military judge did not abuse his discretion by limiting cross-examination of witness about unrelated rape allegation where:  (1) that allegation was irrelevant to the trial; (2) the allegation provided an insufficient basis upon which to attack the victimís credibility; (3) the allegation had no bearing on the validity of the allegations against appellant; (4) the allegation did not establish a motive for the victim to fabricate the allegations against appellant; and (5) the defense counsel provided no evidence showing the complaint to be false other than the unsurprising denial of the alleged perpetrator).

(military judge did not abuse his discretion by limiting cross-examination of victim about her early childhood in a bar-brothel where:  (1) the matter was not relevant to any fact in issue; (2) why she may have moved in with her uncle was not a fact in issue and did not bear upon any matter of consequence; (3) even if victim did move in with uncle to escape the environment of the bar-brothel, this fact did not bear upon victimís credibility; and (4) defense counsel failed to show connection between the bar-brothel and the victimís credibility at appellantís court-martial).

1999

United States v. Anderson, 51 MJ 145 (to support  decision to limit the right to face-to-face confrontation between an accused and a child victim, the military judge must make a finding of necessity, i.e., that there is a likelihood that the child will suffer at least moderate emotional and mental harm if required to testify in the accusedís presence).

(military judgeís finding of necessity in support of a decision to limit the right to face-to-face confrontation between an accused and a child victim was supported by the record where:  (1) expertís opinion provided a sound, adequate basis upon which the military judge considered whether each child victim could testify and under what circumstances each child could communicate; and (2) the military judge personally observed that child could not even take the witness stand).

(military judge committed no error materially prejudicial to appellantís substantial rights, and appellant was not improperly denied his right to face-to-face confrontation where:  (1) the military judge made a case-specific finding of necessity; (2) the finding of necessity was supported by the record; (3) the impact on the two child witnesses would have been more than de minimis if they were compelled to face the accused; (4) the arrangement of screens and televisions was such that all parties could see each child testify; and (5) the defense was able to conduct full cross-examination while maintaining communications amongst themselves with the accused).


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