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Impeaching Witness Under the Military Rules of Evidence

The Knowledge of the Military Rules of Evidence is critical for any attorney practicing in a court-martial. The impeachment of government witnesses, of course, is always going to be an important part of any trial strategy.

The military rules generally permit impeachment through the following techniques:

  • Specific acts
  • Character evidence
  • Contradiction of testimony
  • Prior inconsistent statements
  • Prior convictions
  • Proof of bias
  • Attacks on competency

Evidence of specific acts relevant to a witness's credibility is governed by Military Rule of Evidence 608 (b). That rule permits counsel to ask questions about specific acts of the witness that goes to their credibility or character for truthfulness. Extrinsic evidence of those acts is not permitted under this rule.

Even though 608 (b) does not permit extrinsic evidence, there may be other rules that permit the introduction of the evidence. For instance, if the witness makes a sweeping denial of wrongdoing - the door may be open to extrinsic evidence. United States v. Garcia, 25 M.J. 652 (A.F.C.M.R. 1987).

One of the most powerful rules is 608 (c). This rule does permit extrinsic evidence to show bias.

Extrinsic evidence could also be admissible under 404(b) to show things like motive or plan.

Under rules 404 (a) and 608 (a), counsel can also introduce evidence of a witness's character or reputation for being untruthful.

One of the least well-known military impeachment techniques is impeachment by contradiction. Members of the firm have even encountered judges that were unfamiliar with impeachment by contradiction. This is one of the reasons that civilian counsel can be valuable. Military criminal law practitioners on active duty come from a wide range of backgrounds. They may not always have extensive experience in criminal law.

The rules of evidence do not specifically discuss impeachment by contradiction. It is a creation of appellate case law. A simple example might include testimony from a witness that she was drunk. Defense counsel may want to present evidence from other sources that she was not drunk - contradicting her testimony.

The application of the rule can become more complicated when dealing with hearsay objections. The point, however, is that it's one more tool in defense counsel's arsenal.

Sworn statements subject to cross-examination can sometimes be introduced into evidence. In other words, a copy of the statement can be provided to the jury. Because they are subject to cross-examination, the statements are not hearsay under Military Rule of Evidence 801 (d)(1)(A).

Military Rule of Evidence 609 permits proof of convictions involving dishonesty.

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