To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that
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.”
Impeachment with conviction.
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.
Professor Colin Miller uses an Alabama case to remind us that a prior misdemeanor conviction is not admissible under Rule 609(a).
Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."
The prosecution had argued that the accused’s testimony had “opened the door.” The appeals court also rejected that basis for admission. Of interest though, for trial counsel, and for defense counsel to be looking out for, was this part of the court’s opinion.
A constant frustration – how to impeach (and typically with the book is sitting there on counsel table).
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.]).
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.
ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010). [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.]
This case involves the common problem of discovery of a victims mental health records. There are two troubling aspects to this case: the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of Article 46, UCMJ, for them to fail to turn over the information.
On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.
Here are the military justice related articles in the new Army Lawyer.
Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment
“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial
Every so often the comes up of impeachment by prior conviction under Mil. R. Evid. 609. The reminder is that:
The fact of a pending appeal does not defeat admission, but it may be brought up and discussed. Mil. R. Evid. 609(e).
A summary court-martial may not be used to impeach under this rule. There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609. (Further evidence that an SCM is not considered a “conviction?”)
Court-Martial Trial Practice Blog