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.

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.

So, today’s post:

So, what constitutes “confinement” for Rule 609(b)? This was an issue that the United States District Court for the Middle District of Florida did not need to address in its recent opinion in United States v. Sararo, 2012 WL 3041182 (M.D.Fla. 2012). But that didn’t stop the court from implying that a period of probation constituted “confinement” for Rule 609(b) purposes. . . . . I’m not sure what import to give to the court’s statement on probation as “confinement.” Was the court simply saying that even if probation is confinement, Meehan’s convictions were still more than ten years’ old? Or was the court implying that probation does constitute “confinement” for Rule 609(b) purposes? I don’t know, but the issue already could have been resolved when the Eleventh Circuit recently should have, but did not, address the issue.

In Colon the most interesting issue was whether a suspended sentence is “confinement” for Mil. R. Evid. 609(b) purposes, and the issue in Sararo related to probation after a conviction.

Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is “no.”

The prosecution had argued that the accused’s testimony had “opened the door.” The appeals court also rejected that basis for admission. Of interest though, for trial counsel, and for defense counsel to be looking out for, was this part of the court’s opinion.

the issue was blatantly interjected into the trial by the prosecution. The State cannot open the door to otherwise inadmissible evidence based upon its own line of examination….

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.

Witness: Blah, blah, blah. Witness: In my opinion Private Rumpelstiltskin is a good Soldier. Trial counsel: Now LTC Witness, you’re aware that the Private received an Article 15 on . . . . (“Objection,” – “Sustained.” [TC looks at judge with a ‘what did I just do’ attitude.]).

MJ: Don’t give me that look counsel you were wrong. I think trial counsel should try it this way.

Trial counsel: Now LTC Witness, you’re aware that five months ago the Private was found asleep on post aren’t you? (Ans: Yes.) Trial counsel: Is that conduct indicative of a good Soldier. Ans: Everyone makes a minor mistake [TC “Objection – non-responsive” – “Sustained, LTC please answer the question asked.”]. Trial counsel: Are you aware that three months ago the Private was caught sneaking off Post during duty hours?. Ans: Um, no I wasn’t. Trial counsel: Are you aware that two months ago the Private lied to his NCOIC (“Objection” – “Overruled.”) about his whereabouts during the unit fire drill? Ans: Um, [looking to the defense counsel with a confused look and a ‘you SOB thought’] no I wasn’t. Trial counsel: Assuming those actions to be true, are they types of action exemplary of a good Soldier? or Trial counsel: Assuming them to be true, does that change your opinion that the Private is a good Soldier?

[MJ: The record should reflect a gun-shot and that the defense counsel is wandering around with a pistol in her hand and in obvious pain. Let’s have an 802 when defense counsel has had that foot wound attended to.]

So, trial and cross-examination resumes.

Trial counsel: LTC Witness you are aware that the Private was arrested two da . . . . “Objection,” – “Sustained.”

See, Michelson v. United States, 335 U. S. 469, 482 (1948)(“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness.”).

And of course it behooves a cautious military judge to sua sponte instruct the members in an effort to cure errors being played out in front of them. Although I love this particular quote:

In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.

Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962).

See also, Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).

This ought to be fairly straightforward.

1. In the scenario above it is not the fact of punishment being imposed or a conviction that is the impeachment, the impeachment is through the underlying conduct. For the good Soldier witness any prior misconduct might be suitable for cross-examination, if it is a truthfulness witness then prior lies would be good, or if it is a victim where you are alleging self-defense, questions about prior assaultive behavior known to the accused at the time of the alleged offense would be good.

2. If a defense counsel has failed to prepare a character witness for these types of questions they need to . . . literally shoot themselves in the foot, perhaps they’ll get some diversion or sympathy. There are two general ‘things’ you need to tell a character witness: the charges and what the client is accused of, don’t let the witness hear that from the prosecutor on the witness stand for the first time; and any potential impeachment questions. Saying that you didn’t want to tell a character witness about the nature of the charges in advance because you didn’t want to scare them off doesn’t make sense.

The form of the question is important. The form of the questioning would be the same for a witness as to truthfulness. What I find interesting is that a lot of counsel walk into court and put the Evidentiary Foundations book on their table. I wonder if they opened it? Back in the late 1980’s Ray Kreichelt and I were battling it out at NLSO Norfolk in those good old days. We ourselves would sometimes read from the Evidentiary Foundations book when seeking to admit some evidence. The point was made to our younger counsel. If you aren’t sure of how to put a piece of evidence into evidence because you haven’t done it before or it’s a long time past, there is worse embarrassment than reading from the book to get it right. Actually this reminds me of the TC who couldn’t get it right, didn’t look at the book, and got frustrated at the fifth or sixth “sustained” that the counsel said to the judge, “Well Ma’am how do I do it?” Judge Boone, you’ll remember her, didn’t bat an eye, merely reminded trial counsel that it was not her job. Disturbing that counsel felt comfortable asking, and disturbing counsel thought that Judge Boone was one of those judges who would have coached her.

This case involves the common problem of discovery of a victims mental health records. There are two troubling aspects to this case: the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

Slip op. at 5 (emphasis added). This is so common – have a case right now where the prosecution admitted they’d not asked the NCIS investigator if there was anything in response to a very specific request.

Our superior court has previously noted that R.C.M. 701, “which sets forth specific requirements with respect to evidence favorable to the defense . . . implements the Supreme Court’s decision in Brady v. Maryland . . .” United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999) (internal quotations and emphasis omitted). We view our superior court’s guidance as requiring us to analyze nondisclosure issues under the statutory and executive order standards set forth by R.C.M. 701 and Article 46, UCMJ, which are broader than the Brady constitutional standard. See Santos, 59 M.J. at 321; United States v. Roberts, 59 M.J. 323, 326-27 (C.A.A.F. 2004). As a result, the government bears the higher burden of proving a nondisclosure in response to a specific request is harmless beyond a reasonable doubt. Webb, 66 M.J. 92; Roberts, 59 M.J. at 327. Issues of nondisclosure of evidence are reviewed de novo. See United States v. Eshalomi, 23 M.J. 12, 21-22 (C.M.A. 1986). The military justice system provides for broader discovery than due process and Brady require. See Santos, 59 M.J. at 321; United States v. Adens, 56 M.J. 724, 731 (Army Ct. Crim. App. 2002). Article 46, UCMJ, mandates the trial counsel and defense counsel “shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” The President has implemented Article 46, UCMJ in R.C.M. 701, which requires the government, upon defense request, to allow inspection of any tangible objects, such as papers and documents, that “are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). See also R.C.M. 703(a); R.C.M. 703(f)(1). In particular, the government must, upon request, permit the defense to inspect “[a]ny . . . reports of physical or mental examinations, . . . which are within the possession, custody, or control of military authorities . . . and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(B). See also United States v. Stewart, 62 M.J. 668, 671 (A.F. Ct. Crim. App. 2006). Although not a common occurrence, our court has previously recognized that an Article 46, UCMJ violation may occur without a coexistent violation of constitutional due process. Adens, 56 M.J. at 732 (government’s nondisclosure of inculpatory physical evidence violated a substantial right of the accused irrespective of a due process violation). We find the government’s nondisclosure violated Article 46, UCMJ, and R.C.M. 701, even though it did not violate Brady.

Ultimately the error was harmless beyond reasonable doubt.

[Update] CAAFLog points out that the court appeared to “spank” the prosecutors. Rightly so. It is not uncommon for prosecutors to do as this one did and blow-off the defense request by not making any effort to look for the requested information. The court describes such conduct as “dereliction.” Trigueros, Slip op. at 10-11.

As to the equal access. My point is that I often show up at an Article 39(a), UCMJ, session to litigate discovery, including mental health records, and the trial counsel says they have them and have looked at them. And they want to offer them to the MJ for in-camera review. At that point, why? If Article 46, UCMJ, means anything, why is the prosecution not required to turn them over? At least two Army judges I’m aware of, unfortunately retired now, have taken the position that if the prosecution has it the defense gets it. Whether or not the information is admissible is a different question. In some instances the disclosure has lead to admissible impeachment evidence. So much for the prosecution complying with Brady, Kyles, and Giglio.

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial

Armed for the Attack: Recent Developments in Impeachment Evidence

Annual Review of Developments in Instructions

The fact of a pending appeal does not defeat admission, but it may be brought up and discussed. Mil. R. Evid. 609(e).

A summary court-martial may not be used to impeach under this rule. There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609. (Further evidence that an SCM is not considered a “conviction?”)

Here is another reminder:

Fourth Circuit vacated and remanded a conviction based on the ineffective assistance of defense counsel who failed to effectively challenge admission of defendant’s prior convictions for purposes of impeaching his credibility as a witness because the convictions had been reversed. United States v. Russell, 221 F.3d 615 (4th Cir. 2000) (No. 99-4117).

Under FRE 609(e), for purposes of attacking a witness’s character for truthfulness, the “pendency of an appeal” from a defendant’s conviction “does not render evidence of a conviction inadmissible.” How does this rule operate once the appeal is decided? The Fourth Circuit examined this problem and decided that “[a]lthough the pendency of an appeal does not preclude use of such a conviction for impeachment purposes … it is elementary that once a conviction has been reversed, it cannot be used to impeach the accused.” Russell, 221 F.3d at 620 n.6.