U.S. v. Piren, 74 M.J. 24

Military Justice Personnel: Military Judge: Discretion

1. a military judge is given broad discretion to impose reasonable limitations on cross-examination
2. MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction
3. in this case, reviewing the evidence in the light most favorable to the government, the military judge did not abuse her discretion in finding that appellant’s consent to a sexual assault evaluation was voluntary; while appellant may have believed that his liberty was restricted to some degree and while he did ask whether he should get an attorney, those factors are not sufficient to invalidate his consent; once appellant arrived at the clinic, he was told several times that his decision to consent to the exam was voluntary and that he could refuse; and the consent form that he reviewed and signed clearly reiterated those rights

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Generally

1. MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. when an accused takes the stand, the privilege against self-incrimination is waived

Core Criminal Law Subjects: Evidence: Credibility

1. an accused who exercises his right to testify takes his credibility with him to the stand, and it may be assailed by every proper means; this is reflected in MRE 611(b), which allows cross-examination into the subject matter of the direct examination and matters affecting the credibility of the witness
2. when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility
3. MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction

Core Criminal Law Subjects: Evidence: Impeachment

1. when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility
2. MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction
3. impeachment by contradiction is a line of attack that involves showing the tribunal the contrary of a witness’s asserted fact, so as to raise an inference of a general defective trustworthiness or that the accused is capable of error
4. MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction

Core Criminal Law Subjects: Evidence: Inferences

1. an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. a search may be conducted with lawful consent; consent is a factual determination, and a military judge’s findings will not be disturbed on appeal unless unsupported by the evidence or clearly erroneous; courts evaluate voluntariness with regard to consent based on the totality of circumstances; where the government has prevailed on a motion to suppress, an appellate court reviews the evidence in the light most favorable to the government
2. to determine whether a consent was voluntary, the following six nonexclusive factors set forth in US v. Wallace, 66 MJ 5 (CAAF 2008) may be examined: the degree to which liberty was restricted, the presence of coercion, a suspect’s awareness of the right to refuse based on inferences of the suspect’s age, intelligence, and other factors, the suspect’s mental state at the time, consultation, or lack thereof, with counsel, and the coercive effects of any prior violations of the suspect’s rights
3. although access to counsel is relevant to the analysis of whether a consent to a search is voluntary, there is no right to have an attorney before consent is granted
4. in this case, reviewing the evidence in the light most favorable to the government, the military judge did not abuse her discretion in finding that appellant’s consent to a sexual assault evaluation was voluntary; while appellant may have believed that his liberty was restricted to some degree and while he did ask whether he should get an attorney, those factors are not sufficient to invalidate his consent; once appellant arrived at the clinic, he was told several times that his decision to consent to the exam was voluntary and that he could refuse; and the consent form that he reviewed and signed clearly reiterated those rights

Core Criminal Law Subjects: Evidence: Waiver

1. when an accused takes the stand, the privilege against self-incrimination is waived

Core Criminal Law Subjects: Witnesses: Generally

1. MRE 611(b) provides that cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness
2. an accused who exercises his right to testify takes his credibility with him to the stand, and it may be assailed by every proper means; this is reflected in MRE 611(b), which allows cross-examination into the subject matter of the direct examination and matters affecting the credibility of the witness
3. when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility
4. MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction
5. impeachment by contradiction is a line of attack that involves showing the tribunal the contrary of a witness’s asserted fact, so as to raise an inference of a general defective trustworthiness or that the accused is capable of error
6. MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction

Trial Stages: Merits: Trial Procedures › Generally

1. MRE 611(b) provides that cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness
2. a military judge is given broad discretion to impose reasonable limitations on cross-examination
3. an accused who exercises his right to testify takes his credibility with him to the stand, and it may be assailed by every proper means; this is reflected in MRE 611(b), which allows cross-examination into the subject matter of the direct examination and matters affecting the credibility of the witness
4. when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility
5. MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction
6. impeachment by contradiction is a line of attack that involves showing the tribunal the contrary of a witness’s asserted fact, so as to raise an inference of a general defective trustworthiness or that the accused is capable of error
7. MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction

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

1. an appellate court reviews a military judge’s admission of the evidence for an abuse of discretion; under that analysis, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo; the abuse of discretion standard is strict, calling for the challenged action to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
2. a search may be conducted with lawful consent; consent is a factual determination, and a military judge’s findings will not be disturbed on appeal unless unsupported by the evidence or clearly erroneous; courts evaluate voluntariness with regard to consent based on the totality of circumstances; where the government has prevailed on a motion to suppress, an appellate court reviews the evidence in the light most favorable to the government