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.

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.