The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.” U.S. Const. amend. VI. One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974). This is the“principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.” United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted). Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’” Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

Here’s what the defense wanted to XE on and what the USA had successfully excluded by a motion in-limine, as objectionable under FRE 403.

Before Defendant’s trial began, the government filed a motion in limine to prohibit Defendant from offering evidence concerning a prior determination made by a different federal district court judge that the MTD inspector was not credible. In United States v. Variste, No. CR 06-1349 BB (D.N.M.), the district court issued a suppression order containing a finding that the court did not believe the inspector’s testimony. Specifically, the Variste court found: “This Court does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop.”

The court found this to be an issue of first impression within the Tenth, so:

Although we have not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b), several of our sister circuits have done so and held that they are. United States v. Cedeño, 644 F.3d 79, 82-83 (2d Cir.), cert denied, 132 S. Ct. 325 (2011); United States v. Dawson, 434 F.3d 956, 957-59 (7th Cir. 2006) . . . United States v. Whitmore, 359 F.3d 609, 619-22 (D.C. Cir. 2004).

The court concluded that the proposed cross-examination was “relevant and highly probative.” The court then analyzed a number of factors to find that there was constitutional error in excluding the proposed evidence. After an HBRD analysis the case was returned for a new trial.

Any CID, NCIS, OSI, CGIS agents out there who have testified and a military judge (perhaps extraordinarily so) has found them not credible in a prior case? Discovery?

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.