CORE CRIMINAL LAW SUBJECTS: Witnesses: Confrontation

2021 (October Term)

United States v. Sigrah, 82 M.J. 463 (RCM 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made). 

(the Jencks Act (18 USC 3500(b)) requires a district court judge, upon motion by the defendant, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law of CAAF and that of the Supreme Court informs the analysis of RCM 914 issues).    

(at the trial level, if the government, on motion by the accused, fails to produce a statement in the possession of the United States and made by a witness that relates to the subject matter concerning which the witness had testified, RCM 914(e) provides the military judge with two remedies: (1) order that the testimony of the witness be disregarded by the trier of fact, or (2) declare a mistrial if required in the interest of justice). 

(generally an RCM 914 violation will not rise to a constitutional error). 

(in this case, the military judge’s error in not striking the relevant testimony pursuant to RCM 914 had a substantial influence on the findings where (1) if the military judge had applied the correct remedy and stricken the testimonies of the victim and two witnesses, the government would have had a very weak case, (2) without these testimonies, appellant would have had a strong case, (3) the testimonies were material, and (4) the testimonies were of high quality). 

United States v. Bench, 82 M.J. 388 (the Confrontation Clause of the Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him). 

(the confrontation right is a procedural guarantee that ensures that any testimony presented to a jury be tested through the crucible of cross-examination; the essential elements of the confrontation right require that the accused have an opportunity to cross-examine the witness, that the witness take an oath to tell the truth, and that the jury be able to observe the witness’s demeanor). 

(the Confrontation Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee; it commands, not that evidence be reliable, but that reliability be assessed in a particular manner:  by testing in the crucible of cross-examination; the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose infirmities in a witness’s testimony through cross-examination; a full and fair opportunity to cross-examine generally guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact, because it is always more difficult to tell a lie about a person to his face than behind his back). 

(an exception to the general rule requiring face-to-face confrontation permits a child witness under certain circumstances to testify via closed-circuit television, without any face-to-face interaction with the accused, where all the other elements of the confrontation right including oath, cross-examination, and observation of the witness’s demeanor were present; remote testimony does not infringe on an accused’s confrontation right if it is necessary as a matter of public policy). 

(the Confrontation Clause protects a procedural right that seeks reliability by testing in the crucible of cross-examination; that right is satisfied when the individual testifying takes an oath and is subject to cross-examination that is observed by the panel). 

(in this case, any Confrontation Clause error in the admission of the remote testimony of appellant’s child, who had been misled by the trial counsel who told the child that appellant was not watching his remote live testimony, was not plain error where each of the three essential elements of the confrontation right was present when appellant’s child testified remotely during the court-martial:  appellant had an opportunity to cross-examine the witness, the witness had taken an oath to tell the truth, and the jury members were able to observe the witness’s demeanor; although the trial counsel’s misleading statements might have lessened the pressure appellant’s child felt to tell the truth, the essential elements of appellant’s confrontation right were still vindicated; furthermore, there was no precedent from any court holding that the Sixth Amendment confrontation right required a child testifying remotely to be aware that the defendant was viewing his or her testimony, and the absence of any controlling precedent strongly undermines appellant’s argument that the military judge committed plain or obvious error by admitting his child’s testimony; accordingly, it should not have been clear or obvious to the military judge that the admission of the child’s testimony would materially prejudice appellant’s Sixth Amendment rights; in other words, whether the Sixth Amendment is violated when a counsel misleads a witness who is testifying remotely about the accused’s presence was an open question with no clear and obvious answer in the military justice system, and as such, appellant cannot establish that the military judge’s admission of his child’s live remote testimony was plainly erroneous).  

2019 (October Term)

United States v. Baas, 80 M.J. 114 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this permits the admission of testimonial statements of a witness absent from trial only where the declarant is unavailable, and the accused has had a prior opportunity to cross-examine). 

(a laboratory nucleic acid amplification test report for gonorrhea was not testimonial in nature, and thus admission of the lab report, without any testimony from a laboratory employee, did not violate accused's Sixth Amendment Confrontation Clause rights, where the primary purpose of the test was diagnostic and not evidentiary with an eye toward litigation, and where there was no involvement by law enforcement in requesting the test, because the test was ordered from a private lab by a private physician who, upon receiving the results, prescribed a confirmatory test and treatment by another private medical facility; although the physician was aware of the possible law enforcement related consequences of the exam and test results, she was acting as a medical provider, not as an arm of law enforcement, in requesting the test). 

United States v. Clark, 79 M.J. 449 (RCM 914(a) states that after a witness other than the accused has testified on direct examination, the military judge upon motion of the opposing party shall order the production of any statement of the witness that relates to the subject matter concerning which the witness has testified; a statement is defined, in part, as a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in an electrical, or other recording). 

(the Jencks Act [18 USC § 3500(b)] requires the military judge, upon motion by the accused, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law informs the analysis of RCM 914 issues).    

(in this case, where law enforcement agents questioned appellant in a recorded interrogation about allegations that he raped and sexually assaulted his four-year-old daughter, the agents’ comments to appellant constituted statements under RCM 914, and thus once the agents had testified, the recording had to be produced). 

(the good faith loss or destruction of Jencks Act material and RCM 914 material may excuse the government’s failure to produce statements; and a finding of sufficient negligence may serve as the basis for a military judge’s conclusion that the good faith loss doctrine does not apply).  

(at the trial level, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver a statement: (1) order that the testimony of the witness be disregarded by the trier of fact; or (2) declare a mistrial if required in the interest of justice; however, when, as here, the military judge erred in denying a RCM 914 motion, an appellate court must determine whether this error prejudiced appellant). 

(an appellate court tests for prejudice based on the nature of the right violated; the standard of review and allocation of burdens depend on whether the defect amounted to a constitutional error or nonconstitutional error; generally, a Jencks Act violation will not rise to a constitutional level; however, this principle is not absolute; it may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right to confrontation; as such, the failure to provide material to which an accused is entitled under the Jencks Act may adversely affect an accused’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation). 

(in this case, where appellant was the subject of the law enforcement agents’ interrogation, and therefore was aware of the tone and general content of the agents’ comments, and where the agents were subject to cross-examination, appellant was not denied his right of confrontation; as a result, under these facts, the RCM 914 error in permitting the agents to testify despite the government’s inability to produce the recordings of their statements made during their interrogation of the accused infringed a procedural right rather than a fundamental constitutional right; therefore, the nonconstitutional error is tested for prejudice under Article 59(a), UCMJ). 

(in this case, despite the erroneous admission of the law enforcement agents’ testimony in violation of RCM 914, appellant was not prejudiced where admissions that appellant made during other portions of his interview that were admissible were damning, where the record revealed that both appellant and the alleged victim had genital herpes and this type of herpes is transmitted by direct sexual contact, where appellant’s participation in the interrogation gave trial defense counsel sufficient information to cross-examine the agents, and where appellant chose to testify and had the opportunity to explain to the members the manner in which the agents conducted the interrogation; accordingly, the military judge’s RCM 914 error did not have a substantial influence on the findings). 

2017 (October Term)

United States v. Jones, 78 M.J. 37 (in this case, the erroneous admission of a hearsay statement made by a co-conspirator to a CID agent that was not in furtherance of the conspiracy also violated the Confrontation Clause where the statement was testimonial, because the primary purpose of the CID agent’s interrogation of the co-conspirator was to ascertain facts relevant to a later prosecution, and appellant did not have the opportunity to cross-examine the co-conspirator about the statement; the error was plain or obvious). 

2016 (October Term)

United States v. Erikson, 76 M.J. 231 (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 witness 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).

(while the right to cross-examination is broad, it is not unlimited in scope; nor can it be conducted without due regard for applicable rules of evidence; the scope of cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness; further, a military judge has broad discretion to impose reasonable limitations on 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). 

2015 (September Term)

United States v. Bess, 75 M.J. 70 (a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry). 

(in this case, the military judge’s giving  muster reports to the court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses). 

2014 (September Term)

United States v. Katso, 74 M.J. 273 (in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion).

(the Sixth Amendment prohibits the admission of testimonial statements of a witness who did not appear at trial, unless the witness is unavailable to testify, and the accused had had a prior opportunity for cross-examination).

(the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused; the Confrontation Clause thus protects an accused by excluding the introduction of hearsay that is testimonial, the equivalent of an ex parte examination). 

(determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment). 

(for the purposes of the Confrontation Clause, 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; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant). 

(even when an expert relies in part upon statements by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion; on the one hand, experts may not act as a conduit for repeating testimonial hearsay, circumventing the Sixth Amendment by acting as a transmitter instead of communicating an independent judgment; on the other hand, an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; experts may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions). 

United States v. Muwwakkil, 74 M.J. 187 (the military judge did not abuse her discretion in striking the complaining witness’s testimony based on the government’s failure to provide the defense with a recording of the complaining witness’s Article 32, UCMJ, testimony as required under the Jencks Act, 18 USC § 3500, and RCM 914, where she concluded that the loss of the Article 32, UCMJ, recorded testimony could only be remedied by striking the complaining witness’s testimony because: (1) the summarized testimony was not a substantially verbatim transcript of the complaining witness’s Article 32, UCMJ, testimony; (2) the recording was lost due to the government’s negligence, and perhaps, gross negligence; (3) impeachment of the complaining witness was the defense’s most important strategy; (4) the complaining witness was one of two key witnesses in the case; (5) the investigating officer found the complaining witness’s testimony to be inconsistent with previous statements; and (6) there was no substitute for the Article 32, UCMJ, recording).

(the Jencks Act applies to courts-martial and requires the military judge, upon motion by the accused, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; the Jencks Act is intended to further the fair and just administration of criminal justice by providing for disclosure of statements for impeaching government witnesses).

(RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; both RCM 914 and the Jencks Act afford the defense an opportunity to impeach witnesses and enhance the accuracy of trial proceedings through cross-examination of witnesses). 

(the Jencks Act’s major concern is with limiting and regulating defense access to government papers; on the other hand, the military justice system affords an accused broad rights and remedies under the discovery provisions of the UCMJ that are more extensive than those afforded in the civilian criminal justice system; as a result, resort to military discovery procedures should make resort to RCM 914 by the defense unnecessary in most cases; nonetheless, the military’s discovery rules do not render RCM 914 meaningless when its terms apply).

(recorded Article 32, UCMJ, testimony constitutes a statement under the Jencks Act and under RCM 914). 

(the Jencks Act and RCM 914 apply to destroyed or lost statements; the government’s negligent failure to retain control of recorded Article 32, UCMJ, testimony of the complaining witness, that once had been in its exclusive possession, effectively means that the trial counsel elected not to comply with the requirement under RCM 914(e) to provide a copy of complaining witness’s statement to the defense).

(where the government negligently failed to retain control of recorded Article 32, UCMJ, testimony of the complaining witness, that once had been in its exclusive possession, under these circumstances and pursuant to RCM 914(e), the military judge was required to impose one of two sanctions on the government: (1) order that the testimony of the witness be disregarded by the trier of fact; or (2) declare a mistrial if required in the interest of justice). 

(the Jencks Act jurisprudence, to include RCM 914, recognizes a judicially created good faith loss doctrine; this doctrine excuses the government’s failure to produce statements if the loss or destruction of evidence was in good faith; however, this exception is generally limited in its application and sanctions should be employed in cases of bad faith and negligent suppression of evidence). 

(in this case, the military judge did not abuse her discretion in applying the Jencks Act and RCM 914 to strike the complaining witness’s testimony and in declining to apply the good faith loss doctrine, where she explicitly found that the government had engaged in negligent conduct and where a finding of negligence may serve as the basis for a military judge to conclude that the good faith loss doctrine does not apply). 

(the plain text of RCM 914 provides two remedies for the government’s failure to deliver a statement without referencing a predicate finding of prejudice to the accused; a prejudice analysis is not required under RCM 914). 

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 witness’s 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 expert’s own; however, the Confrontation Clause may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another). 

 

(the “witness” 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 “reliability” is no substitute for this right of confrontation; while “reliability” 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 § 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 witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s 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 witness’s 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 witness’s 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 victim’s 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 victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s 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 witness’s 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 accused’s 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 witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination). 

 

(the right of cross-examination is not unlimited; the accused’s 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 witness’s 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 appellant’s 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 judge’s ruling prevented appellant’s counsel from fully exploring this government witness’s 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 witness’s credibility; as such, the military judge’s ruling was a violation of appellant’s 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 witness’s 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 accused’s 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 appellant’s wife made to the military police regarding appellant’s 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 wife’s credibility with a prior conviction for fraud, and the government’s case was quite strong, including eyewitness testimony, corroborating physical injuries, and appellant’s 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 witness’s 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 witness’s 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 witness’s medical records and the testimony of a board-certified child psychiatrist that testifying would be detrimental to the witness’s 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 witness’s 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 witness’s 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 witness’s 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 witness’s 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 counsel’s 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 witness’s 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 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). 


2006

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

 

(an accused’s 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 judge’s 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 defendant’s 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 accused’s 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 accused’s 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 accused’s 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 “gold standard in drug testing” 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 “Mercedes” and that the process is the “gold standard” 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 accused’s urine test, where there was no annotation error with respect to the accused’s sample and the earlier error was too far removed in both subject matter and time to be relevant to the reliability of the accused’s 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 accused’s urine test, made a testing error and then deliberately falsified documents to cover up that error, where the incident was not related to the accused’s test other than it took place at the same laboratory, where the offending employee was no longer employed at the laboratory when the accused’s sample was tested, and where the incident was too remote in time and subject matter to be relevant to challenge the expert’s 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 defense’s 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 witness’s 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 counsel’s 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 witness’s safety, or interrogation that is repetitive or only marginally relevant).
 
(a military judge did not impermissibly infringe upon an accused’s Sixth Amendment right to confrontation by precluding the defense from questioning a witness regarding a specific term of the witness’s 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 accused’s 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 accused’s core constitutional right to cross-examination; once the defense had been allowed to expose the witness’s 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-actor’s prior statement implicating the accused in drug offenses did not violate the accused’s 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 accused’s 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 witness’s 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 witness’s 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 accused’s wife and a co-worker during which the accused’s wife implicated both her husband and herself in ongoing drug offenses because the wife’s statements were not testimonial, where the government’s role in obtaining the statements amounted only to the facilitation of the recording of the wife’s 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 mother’s 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 witness’s 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 Clause’s 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).

(appellant’s waiver of cross-examination, after the military judge’s 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 accused’s 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 “the subject matter of the direct examination and matters affecting the credibility of the witness”; trial judge may also exercise discretion to limit cross-examination based on concerns about harassment, prejudice, confusion of issues, the witness’ 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 victim’s 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 victim’s credibility; and (4) defense counsel failed to show connection between the bar-brothel and the victim’s credibility at appellant’s 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 accused’s presence).

(military judge’s 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) expert’s 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 appellant’s 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).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site