MJ Summer Camp – II

Your client is charged with burglary, theft, and false official statement. You call a good Sailor witness. The witness testifies. Imagine the questions I asked in MJ Summer Camp I, or just as easily that there has been no prior impeachment cross-examination.

Trial counsel: LTC Witness, does a good Sailor commit burglary? No. Trial counsel: LTC Witness, does a good Sailor commit theft? No. Trial counsel: LTC Witness, does a good Sailor make false official statements? No. Trial counsel: Do those offenses change your opinion? Yes/No – the answer to this one doesn’t really matter.

OK, have a nice day . . . . NO, wait, wrong. Let’s try again.

Trial counsel: LTC Witness, does a good Sailor commit burglary? OBJECTION! And I object to any similar question. MJ: Members, I’m going to excuse you for a moment I need to talk to trial counsel about something. MJ: Trial counsel, are these questions related to the charges before the court, or are you referencing some other prior misconduct? TC: The charges your honor, we don’t have any information that there has been prior misconduct. MJ: Trial counsel I’m not going to let you ask questions using the current charges as your hypothetical.

On the facts set out above, which are the ones I usually see or read about in courts-martials, these questions are improper IMHO. They are what are called ‘guilt-assuming hypothetical’s or questions.’ These questions based on the charges before the court require the witness, and by implication the members, to assume the accused is guilty of the charges before the court.

Here is a starting point proffered by the good folks at Federal Evidence Review.

Developing Consensus: Rule 405 (Methods of Proving Character), 1 Fed. Evid. Rev., August 2004.

Under FRE 405 guilt-assuming hypothetical questions during the cross- examination of a character witness poses particular problems. Most Circuits interpret FRE 405 so that guilt-assuming hypothetical questions are not an appropriate vehicle for inquiry. In United States v. Shwayder, 312 F.3d 1109, 1120 (9th Cir. 2002), the Ninth Circuit joined the majority of other circuits in prohibiting the government from using guilt-assuming hypotheticals. In doing so, the circuit resolved an open issue concerning use of guilt assuming hypotheticals in cross-examining character witnesses.

Here’s another useful reference by the FER Blog.

United States v. Kellogg, 510 F.3d 188, 196 (3d Cir. 2007) (distinguishing between opinion character witnesses and reputation character witnesses and holding that “there is nothing inherent in guilt-assuming hypotheticals, in the abstract, that makes them unfairly prejudicial, let alone so prejudicial as to constitute a per se violation of due process”).

The Kellogg case, cited by the Ninth Circuit above, contains an instructive analysis of the positions of the circuits with regard to guilt-assuming hypotheticals. The Third Circuit noted in Kellogg, 510 F.3d at 193-95, that most of its sister-circuits “have broadly held such questions are improper” because “a guilt-assuming hypothetical impairs the presumption of innocence and thus violates the defendant’s due process rights.” However, a few courts “have also noted that an alternative basis for holding guilt-assuming hypotheticals are improper is that they are unfairly prejudicial to the defendant … which would indeed seem to follow necessarily from a conclusion that there had been a due process violation.”