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?

A statement is not hearsay if: 1. The declarant testifies and is subject to cross-examination about a prior statement. 2. The declarant testified under oath at a prior “hearing” or “or proceeding.” 3. The prior statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at the former “hearing” or “other proceeding.”

So, let’s say that a witness answers a question during the Article 32, UCMJ, investigation, and then refuses to answer the same question at a subsequent trial? Does his answer at the Article 32, UCMJ investigation constitute a prior inconsistent statement under Rule 801(d)(1)(A)? Well, an Article 32, UCMJ, investigation is certainly an “other proceeding” and/or “hearing.” So, according to the recent opinion of the Second Circuit in United States v. Truman, 2012 WL 3023804 (2nd Cir. 2012), the answer is likely “yes.”

In Truman, the Second Circuit, wrote that to the extent that its prior opinions

did not specifically address this issue,…we now join all of our sister courts that have addressed the question in holding that where, as here, a witness who testifies under oath and is subject to cross-examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under Rule 801(d)(1)(A). (emphasis added)

So, what are some other ways prior Article 32, UCMJ, investigation testimony might be used to impeach a witness at trial?

Check out, Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993).

“an inconsistency is logically essential for this method of impeachment, whether testimony is inconsistent with a prior statement is not limited to diametrically opposed answers but may be found as well in evasive answers, inability to recall, silence, or changes of position.”

See also, United States v. Meghadi, 60 M.J. 438, 444 (C.A.A.F. 2005) citing to United States v. Ureta, 44 M.J. 290, 298 (C.A.A.F. 1996); United States v. Button, 34 M.J. 139, 140 (C.M.A. 1992). And,

A decision to admit or exclude evidence is reviewed for an abuse of discretion. Id. In this case, the military judge erred when he apparently determined that a failure to remember facts contained in a prior statement cannot be inconsistent with in-court testimony that differs from those facts. This Court, in Damatta-Olivera, 37 M.J. at 478 and United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005), has noted that an inconsistency, for purposes of M.R.E. 613, may be found “not only in diametrically opposed answers,” but also in “inability to recall,” Damatta-Olivera, 37 M.J. at 478, or equivocation.Meghdadi, 60 M.J. at 444.

United States v. Harrow, 65 M.J. 190, 199 (C.A.A.F. 2007).

and United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005), has noted that an inconsistency, for purposes of M.R.E. 613, may be found “not only in diametrically opposed answers,” but also in “inability to recall,” Damatta-Olivera, 37 M.J. at 478, or equivocation. Meghdadi, 60 M.J. at 444.

h/t Prof. Colin Miller.

First, you must be certain that you can establish that the witness has a “clear-cut motive to fabricate that the jury will understand”; Second, you must be certain that you have at least one “clean substantive line of cross-examination” during which you can establish that the witness probably lied.

So for example I recently litigated a motion to suppress based on lack of voluntariness due to the effects of little sleep and alcohol. The agents both testified in absolute terms that they did not smell alcohol on the client during their contacts with the client and the interrogation. However, shortly after the interrogation the client was medically examined by a corpsman. The corpsman was able to testify to smelling alcohol on the clients breath. The agent’s motives to lie are fairly obvious in this situation and the existence of an independent witness gives you meat for the line of questions. In a situation like that I will then argue the maxim “falsus in uno, falsus in omnibus.”

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.”

The King James (Am.) version says: He that is first in his own cause seems just; but his neighbor comes and searches him.

The New Living Testament (2007) says: The first to speak in court sounds right–until the cross-examination begins.