TC: May I approach the witness?

MJ: Yes.

TC: I’m handing prosecution exhibit 3 to the witness, please look at that.

DC: Can we see that first please?

TC: Your honor we gave a copy of this to the defense in discovery.

DC: Your honor such a comment is improper and unprofessional in front of the members and my client. The trial counsel is seeking to show the defense in a bad light to the members. We’ve been given a lot in discovery, but not the specific exhibit as now being offered. I want to make sure it’s the same exhibit we have and that the trial counsel has not, as some have done, either added or taken out a page from the exhibit, or that there is extra writing on it, or some other alteration since we were given the documents in discovery. And we object as to foundation.

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DC: Your honor I’d like to show the witness defense exhibit “C” for identification. I’m handing the trial counsel a copy, I have a working copy for you, and the original is with the court-reporter.

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If the counsel was not seeking to make the defense look stupid under the scenario above then they need to review their court-room etiquette.

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.

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.”

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.