MJ Summer Camp – III

A constant frustration – how to impeach (and typically with the book is sitting there on counsel table).

Complaining Witness: Blah, blah, blah. Defense counsel: Now Ms. Complaining Witness you received an Article 15 . . . . (“Objection,” – “Sustained.” [DC looks at judge with a ‘what did I just do’ attitude.]).

NO, wrong. I think defense counsel should try it this way.

Defense counsel: Now Ms. Complaining Witness, you lied under oath on your enlistment papers didn’t you – you told the recruiter you hadn’t used or abused drugs? Defense counsel: Now Ms. Complaining Witness, you lied under oath on your security clearance papers didn’t you – you never put down your prior illegal drug use did you? Defense counsel: Now Ms. Complaining Witness, you lied under oath on your security clearance papers didn’t you – you never put down your Article 15 (“Objection” – “Overruled) did you?

[But wait you say. When critiquing the trial counsel you said she can’t talk about the Article 15, just the underlying conduct. Yes, I did say that when trial counsel was cross-examining a good character witness about prior misconduct. But here the issue is different. Question # 15d on the SF 86 asks what? The purpose of the cross-examination is to attack the persons truthfulness and credibility. It is the lie under oath on the SF 86 that is the issue, not the underlying conduct. So, let’s continue, and of course you assume the members forgot the question.

Defense counsel: Now Ms. Complaining Witness, you lied under oath on your security clearance papers didn’t you – you never put down your Article 15 did you? [You could ask a couple more questions to solidify the point I suppose.] Defense counsel: Now Ms. Complaining Witness you received an Article 15 . . . . (“Objection,” – “Sustained.” [DC looks at judge with a ‘what did I just do’ attitude ‘cause the judge just said the mention of Article 15 in regard to the SF86 was OK.]).

Look at the first two questions above, go back and look at the critique of the TC. We are back to the point where the imposition of punishment or a conviction is not the issue. The issue is the underlying conduct, which in this case is that the complaining witness made a false official statement.

Defense counsel: Now Ms. Complaining Witness on 1 March 2009 you lied to LTC Smith and told him that you had completed your weigh-in for the APFT didn’t you. (Ans: Yes, move on. Ans: No. Well, you are stuck with the answer, or are you?) Defense counsel: (If you are lucky) And that’s the Article 15 you failed to report under oath on your security clearance application paperwork?

You are usually stuck with the answer to such credibility questions. So, my advice is to make the question rich in detail as to time, date, location, person, and specifics of the lie. In essence this is one of those ‘who cares what the answer is’ questions. Don’t forget Mil. R. Evid. 404(b) and 608(c) are equally applicable to a complaining witness.