U.S. v. Collier, 67 M.J. 347

First Principles: Constitutional Matters: Confrontation

1. the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination
2. a limitation on an accused’s presentation of bias evidence may be a violation of the Sixth Amendment right to confront witnesses; the question is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination
3. the right of cross-examination is not unlimited; the accused’s confrontation right does not give, for example, free license to cross-examine a witness to such an extent as would hammer the point home to the jury
4. whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading
5. the military judge erred in prohibiting appellant’s defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judge’s ruling prevented appellant’s counsel from fully exploring this government witness’s bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witness’s credibility; as such, the military judge’s ruling was a violation of appellant’s Sixth Amendment right to confront a witness against her
6. in the case of limitation of cross-examination, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt; the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty; an error has not contributed to the verdict when it was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record; to find that the error warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry should focus on whether the military judge’s ruling essentially deprived appellant of her best defense that may have tipped the credibility balance in appellant’s favor; in this regard, an appellate court balances 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
7. in a larceny and obstruction of justice case, the violation of appellant’s Sixth Amendment right to confrontation occurring when the military judge prohibited appellant from cross-examining the main government witness about that witness’s homosexual romantic relationship with appellant was not harmless beyond a reasonable doubt; the theory offered to defend against the larceny charge was that this witness framed appellant for the theft of the tools by buying and etching tools to look like they came from the squadron, and the theory offered to defend against the obstruction of justice charge was that appellant slashed the witness’s tire out of anger over the breakup, rather than with the intent to influence testimony; however, due to the military judge’s limitation on cross-examination of the witness, the defense counsel was able to offer only the end of a friendship as the motivation for the framing and tire slashing, as opposed to the end of a romantic or sexual relationship; this error was not unimportant in relation to everything else the factfinders considered, and thus, there was a reasonable possibility it contributed to the verdict

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge erred in prohibiting appellant’s defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judge’s ruling prevented appellant’s counsel from fully exploring this government witness’s bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witness’s credibility; as such, the military judge’s ruling was a violation of appellant’s Sixth Amendment right to confront a witness against her
2. trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant
3. while MRE 611, a rule which allows a military judge to control the scope and mode of interrogating witnesses, permits a military judge to impose limitations on the length and details of cross-examination, it does not purport to authorize preemptively shutting the door completely on otherwise relevant cross-examination

Military Justice Personnel: Military Judge: Discretion

1. trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant
2. although a military judge enjoys wide discretion in applying MRE 403 balancing, an appellate court gives military judges less deference if they fail to articulate their balancing analysis on the record
3. the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would entail harassment or undue embarrassment, lacked an articulated or supportable legal basis and was thus an abuse of discretion, where the military judge made no findings about the likelihood that the witness would suffer from undue embarrassment or harassment as a result of cross-examination or the presentation of bias evidence and where there was no evidence that trial defense counsel planned to conduct cross-examination in a threatening or embarrassing manner
4. while MRE 611, a rule which allows a military judge to control the scope and mode of interrogating witnesses, permits a military judge to impose limitations on the length and details of cross-examination, it does not purport to authorize preemptively shutting the door completely on otherwise relevant cross-examination
5. the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would lead to a waste of time and a confusion of the issues, lacked an articulated or supportable legal basis and thus was an abuse of discretion, where the military judge made no factual findings about any delay or confusion that could result from the cross-examination of the witness or the presentation of extrinsic evidence on the question, and where the defense counsel only planned to ask the witness about the relationship and, if she denied it existed, to ask two additional witnesses, one of whom ultimately testified at the court-martial; the record did not support the military judge’s decision to take the ultimate questions - whether that relationship existed and whether it led the witness to lie - away from the members; having found that appellant made a threshold showing there was some evidence of such a relationship, it was for the members, as the triers of fact, to decide if a relationship existed and if its end caused the witness to be biased or to misrepresent

Core Criminal Law Subjects: Evidence: Balancing

1. although a military judge enjoys wide discretion in applying MRE 403 balancing, an appellate court gives military judges less deference if they fail to articulate their balancing analysis on the record
2. the term unfair prejudice in the context of MRE 403 speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged
3. MRE 403 addresses prejudice to the integrity of the trial process, not prejudice to a particular party or witness
4. the military policy subjecting homosexuals to mandatory separation if they have engaged in, or solicited another to engage in, homosexual acts is not a per se indication of unfair prejudice within the military justice system
5. the court of criminal appeals erred in concluding that the prejudicial effect of the evidence of a homosexual romantic relationship between the main government witness and appellant outweighed its probative value, where its conclusion was based on speculation about the prejudicial impact unrelated to any specific findings of the military judge; in this case, the military judge made no findings related to potential prejudice to the trial process that could be created by evidence of homosexuality, such as a tendency for members either to disbelieve the witness or to find appellant guilty without a proper basis; in any event, any conclusion that the factfinders would be predisposed against either the government witness or appellant based on a homosexual bias would have been speculative; the CCA inappropriately focused on a generalized and amorphous prejudicial impact of the military’s homosexual policy without identifying who or what would be prejudiced; that policy is not a per se indication of unfair prejudice within the military justice system; and there is no principled reason to prevent an accused from using evidence of a homosexual relationship to potential advantage, particularly where, as here, appellant was the proponent of the evidence of a homosexual relationship with the government’s primary witness

Core Criminal Law Subjects: Witnesses: Confrontation

1. the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination
2. through cross-examination, an accused can expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness
3. a limitation on an accused’s presentation of bias evidence may be a violation of the Sixth Amendment right to confront witnesses; the question is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination
4. the right of cross-examination is not unlimited; the accused’s confrontation right does not give, for example, free license to cross-examine a witness to such an extent as would hammer the point home to the jury
5. whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading
6. the military judge erred in prohibiting appellant’s defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judge’s ruling prevented appellant’s counsel from fully exploring this government witness’s bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witness’s credibility; as such, the military judge’s ruling was a violation of appellant’s Sixth Amendment right to confront a witness against her
7. trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant
8. while MRE 611, a rule which allows a military judge to control the scope and mode of interrogating witnesses, permits a military judge to impose limitations on the length and details of cross-examination, it does not purport to authorize preemptively shutting the door completely on otherwise relevant cross-examination

Core Criminal Law Subjects: Witnesses: Impeachment of

1. the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination
2. through cross-examination, an accused can expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness
3. a limitation on an accused’s presentation of bias evidence may be a violation of the Sixth Amendment right to confront witnesses; the question is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination
4. the right of cross-examination is not unlimited; the accused’s confrontation right does not give, for example, free license to cross-examine a witness to such an extent as would hammer the point home to the jury
5. whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading
6. the military judge erred in prohibiting appellant’s defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judge’s ruling prevented appellant’s counsel from fully exploring this government witness’s bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witness’s credibility; as such, the military judge’s ruling was a violation of appellant’s Sixth Amendment right to confront a witness against her
7. the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would entail harassment or undue embarrassment, lacked an articulated or supportable legal basis and was thus an abuse of discretion, where the military judge made no findings about the likelihood that the witness would suffer from undue embarrassment or harassment as a result of cross-examination or the presentation of bias evidence and where there was no evidence that trial defense counsel planned to conduct cross-examination in a threatening or embarrassing manner
8. the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would lead to a waste of time and a confusion of the issues, lacked an articulated or supportable legal basis and thus was an abuse of discretion, where the military judge made no factual findings about any delay or confusion that could result from the cross-examination of the witness or the presentation of extrinsic evidence on the question, and where the defense counsel only planned to ask the witness about the relationship and, if she denied it existed, to ask two additional witnesses, one of whom ultimately testified at the court-martial; the record did not support the military judge’s decision to take the ultimate questions - whether that relationship existed and whether it led the witness to lie - away from the members; having found that appellant made a threshold showing there was some evidence of such a relationship, it was for the members, as the triers of fact, to decide if a relationship existed and if its end caused the witness to be biased or to misrepresent

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility

Trial Stages: Merits: Instructions › Generally

1. members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the court of criminal appeals erred in concluding that the prejudicial effect of the evidence of a homosexual romantic relationship between the main government witness and appellant outweighed its probative value, where its conclusion was based on speculation about the prejudicial impact unrelated to any specific findings of the military judge; in this case, the military judge made no findings related to potential prejudice to the trial process that could be created by evidence of homosexuality, such as a tendency for members either to disbelieve the witness or to find appellant guilty without a proper basis; in any event, any conclusion that the factfinders would be predisposed against either the government witness or appellant based on a homosexual bias would have been speculative; the CCA inappropriately focused on a generalized and amorphous prejudicial impact of the military’s homosexual policy without identifying who or what would be prejudiced; that policy is not a per se indication of unfair prejudice within the military justice system; and there is no principled reason to prevent an accused from using evidence of a homosexual relationship to potential advantage, particularly where, as here, appellant was the proponent of the evidence of a homosexual relationship with the government’s primary witness

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in the case of limitation of cross-examination, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt; the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty; an error has not contributed to the verdict when it was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record; to find that the error warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry should focus on whether the military judge’s ruling essentially deprived appellant of her best defense that may have tipped the credibility balance in appellant’s favor; in this regard, an appellate court balances 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
2. in a larceny and obstruction of justice case, the violation of appellant’s Sixth Amendment right to confrontation occurring when the military judge prohibited appellant from cross-examining the main government witness about that witness’s homosexual romantic relationship with appellant was not harmless beyond a reasonable doubt; the theory offered to defend against the larceny charge was that this witness framed appellant for the theft of the tools by buying and etching tools to look like they came from the squadron, and the theory offered to defend against the obstruction of justice charge was that appellant slashed the witness’s tire out of anger over the breakup, rather than with the intent to influence testimony; however, due to the military judge’s limitation on cross-examination of the witness, the defense counsel was able to offer only the end of a friendship as the motivation for the framing and tire slashing, as opposed to the end of a romantic or sexual relationship; this error was not unimportant in relation to everything else the factfinders considered, and thus, there was a reasonable possibility it contributed to the verdict

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

1. a military judge’s ruling that bias evidence is inadmissible is reviewed for an abuse of discretion; for the ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather, it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous
2. although a military judge enjoys wide discretion in applying MRE 403 balancing, an appellate court gives military judges less deference if they fail to articulate their balancing analysis on the record
3. members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility
4. in the case of limitation of cross-examination, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt; the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty; an error has not contributed to the verdict when it was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record; to find that the error warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry should focus on whether the military judge’s ruling essentially deprived appellant of her best defense that may have tipped the credibility balance in appellant’s favor; in this regard, an appellate court balances 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