Ban the ban on extrinsic impeachment evidence

Professor Imwinklried has an excellent article advocating banishment of the ban on extrinsic evidence to impeach under Federal (Military) Rule of Evidence 608(b) (MRE).  Prof. Imwinkleried questions why the ban is necessary and may in fact encourage perjury on the part of a testifying witness.

Professor Kevin Cole has an excellent summary of the article at CrimProfBlog.

Edward J. Imwinkelried, Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction, UC Davis Legal Studies Research Paper No. 396, University of California, Davis – School of Law, September 14, 2014.

Basically, a witness may be confronted about prior acts of untruthfulness even though there is no prior conviction for those acts. For example, the witness may be challenged that they lied on a SF 86 (security clearance questionnaire) or enlistment document – both of which are statements made under oath. If the witness admits the lie you are good to go. But what if the witness denies the lie, can you produce the document or some other evidence of that lie? Likely you can’t if MRE 608(b) is applied according to its language.

However, Prof. Imwinkleried identifies three approaches taken by federal appellate courts. At 9, 21.  Some courts allow the witness to be confronted  with documentary proof of a lie when the witness can authenticate the document. Other courts allow extrinsic evidence when the evidence is a formal judicial finding such as an Article 15 record.  Other courts (including the military), especially in sexual assault cases allow cross-examine the complainant about prior false rape accusations; and if the complaining witness denies the prior false complaints, the accused may introduce extrinsic evidence.

In cases I have done, the military judge has allowed all three options, depending on the nature of the extrinsic evidence. In essence the military judge has taken a MRE 403 balancing approach – the approach Prof. Imwinkleried advocates in lieu of a complete ban. Prof. Imwinkleried characterizes the lower courts as “increasingly ignoring” the plain language of the rule and the drafter’s intent. At 8. Prof. Imwinkleried does note that in Nevada v. Jackson, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2014) the Court made note of the ban, but in dictum, they said “[t]he constitutional propriety of this rule cannot be seriously disputed.” Id. at 1993, 186 L.Ed.2d 67.” Of course that does not address the serious dispute found among the lower court cases.

The military courts appear to give some credence to the federal courts that do not completely ban extrinsic evidence and apply a balancing test. See e.g., United States v. Banker, 15 M.J. 207 (C.M.A. 1983).

As a side note, the courts approve of impeachment through specific contradiction. See United States v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996).

Further, counsel should also be attuned to the idea that impeachment may be offered under various rules, even when one or more other rules ban the extrinsic evidence. See e.g., United States v. Bahr, 33 M.J. 228 (C.M.A. 1991).