Crass-Examination of An Accused Before Courts-Martial

• Author: Captain Orrin R. J. Stribley, Jr.
• Pages: 01

1. INTRODUCTION

   At the point in a court-martial when an accused must elect either to testify on his own behalf or to remain silent, the defense counsel must make what is frequently the mast important tactical deciaion in the defense of the case. The defense counsel knowsthat, while an accused need not testify on his own behalf and no inference should be drawn from his silence,' court members, being human, normally cannot completely ignore the fact that the accused elected to remain silent. After all, who is in better position to contribute to his defense than the accused himself? In a closely contested case, testimony by the accused can often tip the balance in favor of acquittal.

   But the defense coun~el also knows that an accused cannot tell merely those facts favorable to his defense but "becomes subject to cross-examination upon the issues concerning which he has testified and upon the question of his credibility."' Consequently, the defense counsel must initially: (1) determine whether the accused has valuable testimony to contribute: (2) plan the direct examination of the accused so as to anticipate the scope of the cross-examination; and (3) compare the probable value of the testimony for the defense with the probable damage resulting from admissions made on cross-examination. To evaluate the situation properly the defense counsel should understand the rules concerning the scope of cross-examination and the testimonial waiver of the privilege against self-incrimination and should

   '

   This article was adapted from B theais presented to The Judge Advaeak Genaral'a School, U.S. Army, Charlottesviile, Virginla, while the avthor was a member of the Ninth Career Course. The opinmnãnd C O ~ C I U L / I O ~ S pre.

   sentsd herein are those of the suthar m d do not neeesaariiy represent the views of The Judge Advocate General's School or sny other governments1 BK*"CY.

   '* JAGC, C.S. Army: Judge Advocate Seetion. Seventh United States Army (Europe); J.D., 1958. Iowa State University; Member of Iowa State Bar. 18 U.S.C. $ 5481 (1958); U.S. Dep't of Defense, Manual for Courts-Martial, United States. 1951, para. 148e. hereafter referred to 88 the Manual and cited MCM, 1951. First recognition of the accuads competency as B wultnesa on his own behalf was in the Act of March 15, 1878, eh. 87, 20 Stat.

   * This article was adapted from B theais presented to The Judge Advaeak Genaral'a School, U.S. Army, Charlottesviile, Virginla, while the avthor was a member of the Ninth Career Course. The opinmnãnd C O ~ C I U L / I O ~ S pre.

   sentsd herein are those of the suthar m d do not neeesaariiy represent the views of The Judge Advocate General's School or B ~ Y other g'owmmentsl

   BK*"CY.

   '* JAGC, C.S. Army: Judge Advocate Seetion. Seventh United States Army (Europe); J.D., 1958. Iowa State University: Member of Iowa State Bar. 18 U.S.C. $ 5481 (1958); U.S. Dep't of Defense, Manual for Courts-Martial, United States. 1951, para. 14% hereafter referred to 88 the Manual and cited MCM, 1951. First recognition of the accuads competency as B wultnesa on his own behalf was in the Act of March 15, 1878, eh. 87, 20 Stat.

   "".

   aMCM, 1951, para. 149b(1).*GO 67818 I

   know the interplay of these rules as they relate to the accused's testimony. Only With this knowledge can the defense counsel proceed intelligently in selecting a course of action.

   Just as the defense counsel must iialance the possible gain with the possible harm in deciding whether to advise an accused to testify, so must the trial counsel, once the accused has testified, consider the rules concerning the mope of cross-examination and the testimonial waiver of the privilege against self-incrimination. Because testimonial admissions by the accused can fill in gaps in the Prosecution proof, the trial counsel cannot afford to use "kid gloves" in his handling of the cross-examination of an accused and so miss valuable opportunities to elict the truth. But he must always consider that, ii, on review of the case, a reviewing authority determines that the scope oi the u,aiver of the privilege against self-incrimination has been exceeded, probably it will be held to be general prejudice and a reversal of the conviction will result.8

   In this article the rules relating to the cross-examination of an accused in a court-martial will be analyzed in order to assist all of the trial participants, particularly the defense and trial coun8el. in their handling of this phase of B court-martial. In doing this, the scope of cross-examination will be considered generally, to include a discussion of: (1) the extent of the accused's waiver of the privilege against self-incrimination by testifying; and (2) the permissible scope of cross-examination of an accused. Counsel should never confuse these separate con-cepts. Distinct legal principles are involved and the waiver of the privilege against self-incrimination is not aiway8 coterminous with the permissible scope of cross-examination: For instance, in impeaching an accused through the use of acts of misconduct not resulting in convictions, a question which may be proper because it is within the permissible scope ai cross-examination may be outaide of the waiver of the privilege against self-incrimination and the accused may be privileged not to answer. This problem will be discussed in detail. However, problems inherent in the waiver of other privileges such as the husband-wife and attorneyclient privileges will not be considered. When an accused testifies concerning less than all of the offenses charged, and, if the offenses are either factually interrelated or one offense tends to show intent, knowledge, or motive relevant to the other offense or offenses, these questions must be con-sidered: Does the accused, merely by stating that he will testify

   I United States Y. Wiiliams. 8 USCMA 443, 24 CMR 254 (1957). 4

   s Wigmore, Evidence g 2278 (3d ed. 1940).2 *GO BimB

   CROSS-EXAMINATION OF ACCUSED

   only concerning certain offenses, effectively limit the scope of cross-examination? How does the joinder of charges affect the scope of cross-examination when an accused elects to testify an less than all offenses charged? What effect does character testimony have when an accused attempts to testify on less than all the offenses charged?

   The cross-examination of an accused after he has given "limited purpme" testimony will be discussed.' When does his testimony "bear upon the issue of his guilt?" Must or should the same rules on scope of cross-examination after "limited purpose" testimony be followed in an out-of-court hearing as in open court?

   Finally, impeachment of an accused will be discussed, with con-sideration af the problems arising solely through cross-examination, that is, those concerning the form of the questions asked and the impeaching of an accused through the use of acts of misconduct not resulting in conviction.

   To provide a framework for the consideration of the cross-examination of an accused in a court-martial, the status of the accused as a witness will be compared with the status of an "ordinary" witness. Federal cases dealing with the principles relating to the waiver of the privilege against self-incrimination and the permissible scope of cross-examination will be discussed in an effort to relate the prevailing federal rules to those applicable to courtsmarti$

   I1 TESTiYOXIAL \V.AIVf.R OF THE PRIVILEGE AtiAISST SELF-ISCKIZIISATIOS

   In approaching the subject of the cross-examination of an accused either in civilian or military law, one must differentiate at the outset between two separate concepts: (1) the testimonial waiver of the privilege against self-incrimination; and (2) the permissible scope of cross-examination. It is because these two concepts are interdependent that it is easy to overlook the fact that they are distinct. Dean Wigmore states that the end result, whether predicated upon a ruling that a queston exceeds the permissible scope of cross-examination or that there has been no waiver of the privilege against self-incrimination, is often the same because, if there are no questions for an accused to answer,

   "If the aecuaed testifies on direct examination only as to matteis not bearing upon the ISSU~S

   of his guilt of any offenre for which he ii being tried, he may not be erons.examined on the issue of his guilt or innocence." MCM, 1951, para, 149b(1)*oo 6,878 3

   there is necessarily na question of waiver of the privilege against self-incrimination.' The distinction between the rules appears mast clearly in the impeachment of a witness. While the rule on the permissible scope of cross-examination of a witness may permit, for instance, an inquiry concerning other acts of misconduct not resulting in conviction, the question of the privilege against self-incrimination and its waiver remains undetermined and resort must be had for that purpose to the rule concerning the waiver of the privilege against self-incrimination..

   Courts distinguish between the accused and the "ordinary" witness when considering the testimonial waiver of the privilege against self-incrimination. The distinction is predicated upon the fact that, while an "ordinary" witness can be subpoenaed and compelled to testify, the accused cannot be compelled to testify.^ Thus, it is reasoned that an "ordinary" witness should be able to assert the privilege against self-incrimination at any time Prior to the actual incrimination while the accused waives the privilege against self-incrimination by his act of valuntarily testifying.

   A WAIVER BY "0RDI.VARY" WITXESS I S FEDERAL COURTS

   The federal courts, in case8 concerning the waiver of the privilege against self-incrimination by an "ordinary" witness, have referred to three tests when answering the question of whether there has been a waiver af the privilege against self-incrimination. These tests may be labeled: (1) "incriminating-fact test" under which a broad interpretation of waiver is given, predicated upon the...