A constant pet frustration – lack of understanding of how to impeach. Let’s look at this from a common witness situation – the good military character 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.