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.

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

While the rule appears to allow a broad exception for hearsay, the Supreme Court of VA points out the narrowing language still has effect.*

Tucker v. Clarke, 2012 Wl 2886713 (Va.App. 2012).

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*VA will very shortly have a codified Rules of Evidence.

From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:

The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without “full-scale” trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.

United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).

I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.

United States v. Merrill, __ F.3d __ (11th Cir. June 27, 2012) (No. 11–11432)

FRE 410 restricts admission of any statements made during plea negotiation meetings. One problem in applying the rule is determining just when plea negotiations have commenced. A recent case of the Eleventh Circuit touches on this question. The circuit focused on how to determine when it was reasonable for a party to consider plea discussions to have started. It did this without examining what was necessary for an objective showing for the belief that plea negotiations were underway, avoiding the need to deal with an inquiry into the party’s subjective view on this issue.

The federal rule does not contain a specific provision relating to requests for discharge in lieu of trial, which explains a significant difference. The military rules of evidence were amended in 1981 to address the issue.

(b) Definitions. A “statement made in the course of plea discussions” includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; “on the record” includes the written statement submitted by the accused in furtherance of such request.”.

So, requests for a Chapter 10/OTHIL/SILT/RILO, whatever the Service term, are explicitly covered. Although care still has to be exercised here because the rule appears limited to any written statement given as part of a request package. Oral representations might be a different animal. And it should be clear that requests for disposition at Article 15, UCMJ, hearings ought to be included.

I posted about this topic in February 2009. In that post I referenced United States v. Vasquez, 54 M.J. 303 (C.A.A.F. 2001).

[A]n accused’s pretrial letter to his commander, admitting his guilt and requesting disposition by “any other avenues of punishment short of court-martial,” was a plea discussion within the meaning of Mil. R. Evid. 410.

54 M.J. 305, citing to United States v. Barunas, 23 M.J. 71 (C.M.A. 1986). See also, United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(same issue, same judge). It appears that particular NLSO/TC shop at the time made a habit of offering rejected OTHIL requests on sentencing.

See United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005), for cases where the accused blows providency or the MJ declines to accept the plea; United States v. Cross, NMCCA 200602310, 2007 CCA LEXIS 414 (N-M Ct. Crim. App. September 27, 2007)(unpub.), for what happens or can happen if the defense does not object on the merits or sentencing; United States v. Price, ACM 33503, 2001 CCA LEXIS 103 (A.F. Ct. Crim. App. March 30, 2001)(an objection, the MJ limits his consideration of contents of the proffer, and the accused states in sentencing much of the contents of the same letter) .

In reading some cases about the rule for this post several themes are apparent.

1. You have to nail down, as in Merrill, what, when, how are negotiations started. 2. Who is the correct person with whom there can be negotiations covered by the rule. 3. OBJECT!, or risk a finding that the error was waived and/or HBRD.

For some history about the military rules, there is an excellent, but dated, Military Law Review symposium at 130 MIL. L. REV. 7 (1990).

United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).