U.S. v. Moss, 63 M.J. 233

First Principles: Constitutional Matters: Confrontation

1. when the military judge excludes evidence of bias, the exclusion raises issues regarding an accused’s Sixth Amendment right to confrontation
2. an accused’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes him from exploring an entire relevant area of cross-examination

Core Criminal Law Subjects: Evidence: Balancing

1. admission of specific acts of bias is dependent upon the military judge properly evaluating the evidence’s probative value against its potential for unfair prejudice as measured by MRE 403
2. the probative value of the evidence that alleged child victim had been beaten by her mother, had used alcohol and drugs, had been expelled from school, had attempted suicide, had committed general acts of disobedience, and was unhappy with her restrictive home environment was high where it directly fit the defense theory for which it would have been offered; on the other hand, the risk of unfair prejudice in this case was fairly low; although the evidence was probative to the defense theory, it was a double-edged sword that also could have hurt appellant’s case; when viewed in context of the timing of the events, the alleged child victim’s prior bad acts could have been seen as evidence of post-traumatic stress disorder stemming from the alleged rape; thus, the danger of unfair prejudice in this case did not significantly outweigh the probative value of admitting the evidence

Core Criminal Law Subjects: Evidence: Character

1. MRE 608(c) allows for evidence to show bias, prejudice, or any motive to misrepresent through the examination of witnesses or extrinsic evidence; rules of evidence should be read to allow liberal admission of bias-type evidence; when the military judge excludes evidence of bias, the exclusion raises issues regarding an accused’s Sixth Amendment right to confrontation
2. the use of extrinsic evidence to show bias, prejudice, or any motive to misrepresent can be limited if it is collateral to an important trial issue or its relevance is not established
3. the partiality of a witness is always relevant as discrediting the witness and affecting the weight of his testimony
4. evidence that alleged child victim had been beaten by her mother, had used alcohol and drugs, had been expelled from school, had attempted suicide, had committed general acts of disobedience, and was unhappy with her restrictive home environment was relevant and admissible pursuant to MRE 608(c) to show bias and motive to misrepresent at the accused’s court-martial on charges of rape, forcible sodomy, and indecent acts; the evidence supported the viable defense theory that the victim had fabricated the alleged rape to cast herself as a victim to gain favorable treatment from her parents, to improve her relationship with them, to change her own present circumstances, and to deflect attention and focus away from herself and her misbehavior; a reasonable juror could have been convinced by the defense’s theory that the alleged child victim had a motive to fabricate a story and could have, therefore, formed a significantly different impression of the alleged child victim’s credibility
5. admission of specific acts of bias is dependent upon the military judge properly evaluating the evidence’s probative value against its potential for unfair prejudice as measured by MRE 403

Core Criminal Law Subjects: Evidence: Relevance

1. relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
2. the partiality of a witness is always relevant as discrediting the witness and affecting the weight of his testimony

Core Criminal Law Subjects: Witnesses: Confrontation

1. when the military judge excludes evidence of bias, the exclusion raises issues regarding an accused’s Sixth Amendment right to confrontation
2. an accused’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes him from exploring an entire relevant area of cross-examination
3. the military judge’s exclusion of relevant evidence that alleged child victim had a motive to fabricate rape allegations against the accused denied the accused his fundamental right of confrontation and cross-examination at court-martial on charges of rape, forcible sodomy, and indecent acts

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if a military judge abused his discretion in an evidentiary ruling that violated an accused’s Sixth Amendment’s right to confrontation, the case will be reversed unless the error is harmless beyond a reasonable doubt
2. in determining whether or not the erroneous exclusion of evidence is harmless, an appellate court considers: the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and of course, the overall strength of the prosecution’s case
3. the erroneous exclusion of evidence that the alleged child victim had a motive to fabricate rape allegations against the accused was not harmless beyond a reasonable doubt where the case was a credibility contest between the accused and the alleged child victim, and the ruling prevented the defense from attacking the alleged child victim’s credibility; as a result of the military judge’s erroneous ruling, the defense had no way of showing bias or motive to misrepresent, and the defense lost its ability to attack the government’s only evidence against the accused; it is impossible to say whether the evidence that could have been used to attack the credibility of the alleged child victim would have raised some doubt as to whether the alleged child victim’s version of the event was accurate; the military judge’s ruling essentially deprived the accused of his best defense, which was to demonstrate the alleged child victim’s bias and to meaningfully challenge her credibility; because the excluded evidence may have tipped the credibility balance in the accused’s favor, the error was not harmless beyond a reasonable doubt

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where the Sixth Amendment’s right to confrontation is allegedly violated by a military judge’s evidentiary ruling, the ruling is reviewed for an abuse of discretion; if an abuse of discretion is found, the case will be reversed unless the error is harmless beyond a reasonable doubt
2. when an appellant claims a violation of the Confrontation Clause on the grounds that he was prohibited from conducting an otherwise appropriate cross-examination designed to show a witness’s bias, the appellant has the burden of showing that a reasonable jury might have reached a significantly different impression of the witness’s credibility if the defense counsel had been able to pursue the proposed line of cross-examination