CORE CRIMINAL LAW SUBJECTS: Witnesses: Impeachment of

2021 (October Term)

United States v. Beauge, 82 M.J. 157 (the right to cross-examine a witness for impeachment purposes has constitutional underpinnings because of the right to confront witnesses under the Sixth Amendment and the due process right to present a complete defense). 

2010 (September Term)

United States v. Savala, 70 M.J. 70 (the CCA did not clearly err in concluding that the prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution). 

(issues of witness credibility and motive are matters for the members to decide).

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).

(the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would entail harassment or undue embarrassment, lacked an articulated or supportable legal basis and was thus an abuse of discretion, where the military judge made no findings about the likelihood that the witness would suffer from undue embarrassment or harassment as a result of cross-examination or the presentation of bias evidence and where there was no evidence that trial defense counsel planned to conduct cross-examination in a threatening or embarrassing manner).   

(the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would lead to a waste of time and a confusion of the issues, lacked an articulated or supportable legal basis and thus was an abuse of discretion, where the military judge made no factual findings about any delay or confusion that could result from the cross-examination of the witness or the presentation of extrinsic evidence on the question, and where the defense counsel only planned to ask the witness about the relationship and, if she denied it existed, to ask two additional witnesses, one of whom ultimately testified at the court-martial; the record did not support the military judge’s decision to take the ultimate questions - whether that relationship existed and whether it led the witness to lie - away from the members; having found that appellant made a threshold showing there was some evidence of such a relationship, it was for the members, as the triers of fact, to decide if a relationship existed and if its end caused the witness to be biased or to misrepresent).