Motive and gain

You have heard me speak of secondary gain; a term used by psychologists which we lawyers call motive to lie. There are several motives to lie, United States v. Wetuski, AFCCA, presents two–to get out of trouble and to get an expedited transfer.

Given the timing of A1C ME’s removal from military justice and the closeout of her LOR, trial defense counsel attempted to show A1C ME had motive to misrepresent her accusations against Appellant. In trial defense counsel’s view, A1C ME was dissatisfied with her current situation in the Malmstrom AFB legal office and needed an expedited transfer to get a fresh start and the way to do that was to accuse Appellant of sexual assault. Several members of the legal office testified that they heard A1C ME say once, in the months before her accusations against Appellant, that a group of female Airmen who lived in the dormitories at Malmstrom AFB knew what they needed to say and to do to get an expedited transfer. One of those witnesses explicitly stated that what needed to be done was “you have to have an unrestricted sexual assault report and see the [Sexual Assault Response Coordinator].” This witness opined that this was “not very” hard. Members of the legal office believed there was an increase in outgoing expedited transfers from Malmstrom AFB during the winter of 2016–2017.

Note, that the Court discusses how the defense presented its theory of admissibility. The defense focussed on truthfulness, which is a MRE 608(b) basis but not 608(c) which goes to bias.

Note that on appeal the gubmint argued that “Mil. R. Evid. 608(b) does not permit a “barrage of questioning related to every lie told in a [witness’] life, no matter how small or insignificant. . . .” I tend to agree that the defense should choose carefully the lies they want to bring forward. I prefer lies that are meaningful or significant. So, a lie about the alarm clock not working as a defense to a UA probably isn’t meaningful unless it’s one of several similar lies–a pattern. Stated another way, a few “white” lies are not necessarily what you are looking for to impeach truthfulness. I look for:

• Lies on enlistment.
• Lies on an SF86.
• Lies on official documents.
• Lies to superiors related to duty.
• Lies in investigations.
• Lies in court.
• Lies about court.
• Recency of lies (within a few years of trial).
• Lies about important things.

It’s tough to actually define what’s worthwhile bringing up, I agree.

Finally, I noted this comment, “On cross-examination, MSgt DH also opined that A1C ME’s character for embellishment was “she tends to embellish and exaggerate a little bit.” And, “Mr. JF described A1C ME as “not truthful” and that she exaggerated “quite often.” Question? is this a sufficient character trait under MRE 405, and therefore admissible?