CORE CRIMINAL LAW SUBJECT: Witnesses: Generally

2020 (October Term)

United States v. Thompson, 81 M.J. 391 (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 requires the trial 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, CAAF’s Jencks Act case law and that of the Supreme Court informs the analysis of RCM 914 issues).    

(if the government, as the opposing party, fails to produce a qualifying statement, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver the qualifying 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). 

(not every failure to produce a qualifying statement invokes a RCM 914 remedy; good faith loss or destruction of Jencks Act material and RCM 914 material may excuse the government’s failure to produce statements; 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). 

(the relevant language of RCM 914 requires the government to produce any pertinent statement of a prosecution witness in the possession of the United States; RCM 914 does not apply if the statement is not in the possession of the United States; RCM 914 concerns preservation and disclosure of statements in the government’s possession, not the collection or creation of evidence). 

(in this case, where law enforcement chose not to take possession of a government witness’s timeline during a pretrial interview with the witness, this decision did not violate RCM 914 because there was no obligation for law enforcement to create an RCM 914 qualifying statement during its interview of the witness). 

(federal circuit courts have generally concluded that the Jencks Act applies only to statements possessed by the prosecutorial arm of the federal government; the prosecutorial arm of the federal government may, in certain cases, include nonfederal entities when the nonfederal entity is acting in concert or at the behest of the federal government as its agent; where the statements are physically held by someone other than a federal prosecutorial agency, such statements are generally not considered in the possession of the United States unless the holder serves as an arm of the United States government).  

(RCM 914 applies only to statements possessed by the prosecutorial arm of the federal government or when a nonfederal entity has a joint investigation with the United States; in this case, the party in control of the timeline was a third-party private citizen, not the United States, and therefore the timeline was not subject to RCM 914 production even though the government investigator had access to the timeline during a pretrial interview with the private citizen and avoided collecting it).

2019 (October Term)

United States v. Reyes, 80 M.J. 218 (the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe).

(the inability to locate a necessary witness is a valid reason for delay in an Article 10, UCMJ, speedy trial analysis; this rule applies to expert consultants).

United States v. Hennis, 79 M.J. 370 (Article 46, UCMJ, grants an accused equal opportunity with the trial counsel to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe). 

2018 (October Term)

United States v. Frost, 79 M.J. 104 (statements made after an improper influence arose do not rehabilitate a witness’s credibility).

United States v. Bodoh, 78 M.J. 231 (when examining witnesses, trial counsel cannot seek to introduce, either overtly or surreptitiously, inadmissible evidence and cannot misstate legal principles).

United States v. Criswell, 78 M.J. 136 (eyewitness identifications are problematic in any criminal justice system; on one hand, eyewitness identifications are often the most compelling evidence linking a suspect to a crime; but on the other hand, experience has shown that eyewitness identifications are not always accurate; eyewitnesses can be mistaken because of anxiety, surprise, lack of focus, or other factors at the time of the crime). 

(MRE 321 is a complex provision that addresses testimony about out-of-court eyewitness identifications (such as those which might have occurred in a police station before trial) and in-court eyewitness identifications (such as those in which a witness points to the accused sitting at the defense table); MRE 321(a) states a rule that generally makes relevant testimony concerning eyewitness identifications admissible; but MRE 321(b) creates an exception to the rule, providing that testimony about eyewitness identifications is inadmissible if the identifications: (1) were the result of an unlawful lineup or other unlawful identification process; or (2) their exclusion is required by the Due Process Clause of the Fifth Amendment to the Constitution of the United States as applied to members of the Armed Forces; MRE 321(c)(1) provides that a lineup or other identification process is unlawful if the process is so suggestive as to create a substantial likelihood of misidentification). 

(under MRE 321, the first question to ask is whether the identification process at issue was unnecessarily suggestive; assuming that it was, the second question is whether the process was conducive to a likelihood of misidentification; in answering the second question, five factors are considered: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the perpetrator; (4) the witness’s demonstrated level of certainty during the confrontation; and (5) the elapsed time between the criminal act and the confrontation; these factors are then weighed against the corrupting effect of the suggestive identification itself; the purpose of the weighing is to determine whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive).

(under MRE 321(d)(6)(B)(i), when an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; MRE 321(d)(6)(B)(ii) then states that when the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification). 

(even if reasonable minds could differ about the application of the facts to the law, a military judge does not abuse his discretion in deciding to suppress an in-court identification on the ground that the in-court identification would be significantly impacted by a prior unreliable identification).

(without producing the photographs used in a suggestive prior identification, the government in some cases will have difficulty proving by clear and convincing evidence that the later identification is not the result of the inadmissible identification as required by M.R.E. 321(d)(6)(B)(ii); however, the government may be able to meet this burden by other means). 

(while a military judge may choose to accord greater weight to statements made by a witness before the witness has seen a suggestive photograph, there is no rule prohibiting the military judge from considering subsequent descriptions of the accused in applying MRE 321(d)(6)(B)(ii)).

(in this case, a military judge’s omission of an express discussion of weighing the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors against the suggestiveness of the initial identification did not indicate that the military judge had an incorrect view of the law where (1) appellant did not contend that the military judge misunderstood this aspect of the MRE 321 analysis, (2) in the absence of clear evidence to the contrary, it is presumed that military judges know the law and follow it, and (3) the military judge emphasized that he had considered all the surrounding circumstances in determining that the in-court identification was reliable). 

(a witness’s certainty in testifying does not prove that the witness is testifying accurately; a witness may, in good faith, hold a belief that is contrary to the actual facts).

(in this case, viewing the evidence in the light most favorable to the government, the military judge’s conclusion that the victim’s in-court identification of appellant was reliable, even though a pretrial identification was unnecessarily suggestive, was not outside the range of choices reasonably arising from the applicable facts and the law where (1) the victim was confronted twice by her assailant, was in his presence for a significant amount of time, and could see her assailant’s face clearly, (2) the victim was extremely attentive to her assailant’s features during the time that she was in his presence, (3) the victim gave a very detailed description of her assailant, a description that was corroborated by another witness at the time of the assault, (4) the victim’s identification of her assailant when shown a single photo of appellant prior to trial was immediate and certain, and (5) the length of time between the crime and the confrontation with the single photo was less than 24 hours, a very short amount of time leaving little opportunity for the victim to forget whatever she remembered about her assailant and therefore be persuaded by seeing only a single photo, and where the military judge considered all the surrounding circumstances, including environmental factors and the discrepancies raised by the defense in cross-examination; accordingly, the military judge did not abuse his discretion in denying appellant’s motion to suppress the victim’s in-court identification).

(the inquiry under MRE 321 is not limited to the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors). 

2014 (September Term)

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

(an accused who exercises his right to testify takes his credibility with him to the stand, and it may be assailed by every proper means; this is reflected in MRE 611(b), which allows cross-examination into the subject matter of the direct examination and matters affecting the credibility of the witness).    

(when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility).

(MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction). 

(impeachment by contradiction is a line of attack that involves showing the tribunal the contrary of a witness’s asserted fact, so as to raise an inference of a general defective trustworthiness or that the accused is capable of error).   

(MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction). 

2013 (September Term)

United States v. Knapp, 73 M.J. 33 (it is the exclusive province of the court members to determine the credibility of witnesses).

2012 (September Term)

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


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