**A Primer on Methods of Impeachment**

[Lieutenant Colonel James Moody, USAF]{.smallcaps}[^1]

[Lieutenant Colonel LeEllen Coacher,
USAF]{.smallcaps}[^2][^\*^]{.smallcaps}

**I. INTRODUCTION**

The rules governing this subject---cross-examining a criminal defendant
about prior wrongs---are among the most complex and confusing in the
entire law of evidence. The main reason is that they represent not a
logical pattern but a series of ad hoc accommodations arrived at by the
common law over the course of centuries in dealing (differently) with
several related problems. Worse still, the Federal Rules of Evidence
have retained the common law structure, with a few modifications, but
expressed it in four different rules---Fed. R. Evid. 404, 405, 608 and
609---whose relationship and content are not models of clarity.[^3]

Whether one practices under the Federal Rules of Evidence, or the
comparable Military Rules of Evidence, [^4] the rules of
impeachment---which include the proper use of prior statements as well
as other means of attacking a witness's credibility---are frequently
confusing even to more seasoned trial attorneys.

As an aid to trial practitioners we will present a description of the
proper working of these rules, dividing them into two analytical
categories. First, we will consider impeachment methods focusing on the
truthfulness of the witness himself. These include character for
untruthfulness (Mil. R. Evid. 608(a)); prior conviction (Mil. R. Evid.
609(a)); prior misconduct (Mil. R. Evid. 608(b)); prior inconsistent
statements (Mil. R. Evid. 613(b)); and impeachment by contradiction.
Second, we will consider two classes of impeachment which focus on the
perceptions of the witness---bias (Mil. R. Evid. 608(c)) and
deficiencies in the elements of competency. We hope to provide, through
case discussion and examples, a starting point for mastery of a
complicated body of law vital to the trial process.

**II. IMPEACHMENT BASED ON TRUTH AND VERACITY**

**A. Opinion and Reputation Evidence of Character**

**Under Military Rule of Evidence 608(a)**

Military Rule of Evidence 608(a) reads:

The credibility of a witness may be attacked or supported by evidence in
the form of opinion or reputation, but subject to these limitations: (1)
the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.

It is commonplace in American evidentiary law that a party may not offer
evidence of a person's bad character in order to demonstrate that on the
day in question he was acting in accordance therewith. This principle is
embodied in Mil. R. Evid. 404(a) and in Fed. R. Evid. 404(a).[^5]
However there are numerous occasions in which character evidence is
nevertheless admissible, one prominent instance being that of
impeachment under Mil. R. Evid. 608(a). This provision does not make
character evidence admissible wholesale, but rather restricts it to
"matters relating to truthfulness or untruthfulness of the witness."
This rule applies to all witnesses and not merely to the accused.

A fairly recent case which considered the use of character witnesses and
reputation evidence was *United States v. Toro.*[^6] In *Toro*, the
accused was charged with use and distribution of amphetamines. The case
hinged on the testimony of five undercover informants and accomplices,
whose credibility the defense attacked through prior inconsistent
statements.

The prosecution then sought to rehabilitate these witnesses by eliciting
opinion testimony from an Air Force Office of Special Investigations
(OSI) Special Agent who was familiar with the witnesses. The agent
testified that in his opinion, these witnesses were "reliable, credible,
and trustworthy." He also stated that "they were among 'the very best
sources' that he had worked with in over 10 years."[^7] The accused was
convicted and sentenced to a dishonorable discharge, confinement for
seven years, total forfeitures, and reduction to the lowest enlisted
grade.

On appeal the accused asserted that the judge erred by admitting the OSI
agent's opinion testimony. The United States Court of Military Appeals
(now the United States Court of Appeals for the Armed Forces) examined
the requirements of Mil. R. Evid. 608(a). While acknowledging the two
limitations stated explicitly in the rule, the Court pointed out the
additional requirement for a proper foundation. The proponent must show
that the character witness who will testify as to the witness's
reputation resides or works in the same community as the witness and has
done so long enough to have become familiar with the witness's
reputation in that community.[^8]

The court went on to observe that the prosecution had not laid a proper
foundation: it had not established that the OSI agent possessed the
requisite knowledge of the witnesses to have a meaningful opinion
consistent with the requirements of the rule. The court stated that such
a foundation means that the character witness knows the witness
personally "and is acquainted with the witness well enough to have had
an opportunity to form an opinion of the witness's character for
truthfulness."[^9] The court provided a broad definition of community as
"an area where a person is well known and has established" his
reputation.[^10] It is not necessarily limited to any particular
geographical area, a concession to the nature of military service.

The court also noted that the OSI agent's statement that the witnesses
were the "very best sources" he had worked with did not constitute
opinion as to truthfulness. However, the court held that the defense's
failure to raise this objection at trial waived the issue on appeal and
the conviction was affirmed.[^11]

Opinion evidence as to a witness's untruthful character becomes relevant
whenever the witness testifies. To testify under oath automatically
places one's character for truthfulness in contention. In contrast,
evidence of character for *truthfulness* may only be elicited after the
witness's truthful character has been attacked. This provision has been
the source of confusion among practitioners. In *United States v.
Robertson*,[^12] the accused was charged with use of cocaine. The
government's case was based upon the positive results of the accused's
random urinalysis test. The chosen defense was that the accused had
unknowingly ingested the cocaine. During the trial the defense counsel
summoned the accused's landlady to the witness stand and this colloquy
followed:

Q: Mrs. McCullough, do you have an opinion as to the defendant's
character and honesty in the community?

A: Well, like I said, he lives with me now and he goes to church with
me, and I know I can speak for while he's living with me, because, you
know, he goes to church with me, and everything, and he doesn't do
anything there.

Q: What is your opinion of his character?

TC: Your honor, what character trait?

MJ: Mr. Jenkins, what character trait are we asking about?

CDC: How do you describe his character as far as honesty?

TC: Your honor, the accused hasn't placed his character for honesty in
issue, because he hasn't taken the stand.

MJ: Mr. Jenkins, what's your response to that?

CDC: Your honor, I think the defendant's honesty is in question because
his credibility, as well as whether or not he ingested cocaine back on,
or at least had cocaine in his system back on April 18^th^, 1990,
whether or not he did, knowingly. I would suggest to this court that his
honesty is in question, as to whether or not he's telling the truth.

MJ. Well, the government objection is sustained. His character for
honesty and veracity hasn't been placed in issue because he hasn't
testified.

CDC: I agree with that.[^13]

It is plain to see that the defense counsel violated the second
limitation set forth in Mil. R. Evid. 608(a) because until a witness
testifies and his credibility is attacked there is clearly nothing to
bolster.

In applying this rule, therefore, we suggest the following as examples
of its proper application. The first example illustrates an attack upon
a witness's character for truthfulness after he has testified under
oath.

Q: Mr. Jones, how long have you known the witness, Mr. Henderson?

A: I have known Mr. Henderson for four years.

Q: How do you know him?

A: He is my next door neighbor.

Q: How often do you see him?

A: I see him almost every day.

Q: Under what circumstances?

A: Well, for the last year we have worked in the same office at the post
office and I deal with him every day there. In addition, we see each
other as we do yard work or things like that. We have seen each other
socially on several occasions and our sons are members of the same scout
troop.

Q: In his dealings with you does he ever have an opportunity to make
representations of fact to you concerning work or other matters?

A: Yes, he does.

Q: Based upon your knowledge of Mr. Henderson do you have an opinion as
to his character for honesty and truthfulness?

A: Yes, I do.

Q: What is that opinion?

A: My opinion is that he is not truthful.

Insofar as Mr. Henderson's character for truthfulness has now been
attacked, the proponent of his testimony has an opportunity to bolster
Mr. Henderson's credibility by introducing opinion or reputation
evidence. The following example demonstrates this technique.

Q: Mr. Edwards, how do you know Mr. Henderson?

A: I have attended the same church, the Fifth Street Presbyterian
Church, for eight years, where we both serve on the board of elders. I
see him four or five times a week on church related business. He also
serves as the church treasurer and teaches a Sunday School class. He is
an assistant scout master for the scout troop which our sons attend,
along with the Jones boy.

Q: Do you know whether or not during his association with the
Presbyterian Church Mr. Henderson has acquired a reputation for
truthfulness?

A: Yes, he has.

Q: Do you know what that reputation is?

A: Yes, I do.

Q: What is it?

A: He has a reputation for being a truthful person.

In both examples, the proponent laid an adequate foundation, both for
the opinion as well as the knowledge of the witness's reputation in the
community. In addition, the bolstering represented by the latter
hypothetical is utilized only after the witness's credibility has first
been impeached following his testimony under oath.[^14]

**B. Impeachment Using a Prior Conviction**

**Under Military Rule of Evidence 609**

Military Rule of Evidence 609 allows a party to impeach a witness,
including a testifying accused,[^15] with evidence of the witness's
prior conviction. Both Rule 609 and case law define when impeachment
using a prior conviction is permissible, and when it is not. The general
rule, which was amended in 1991,[^16] reads:

**(a) General rule.** For the purpose of attacking the credibility of a
witness, (1) evidence that a witness other than the accused has been
convicted of a crime shall be admitted, subject to Mil. R. Evid. 403, if
the crime was punishable by death, dishonorable discharge, or
imprisonment in excess of one year under the law under which the witness
was convicted, and evidence that an accused has been convicted of such a
crime shall be admitted if the military judge determines that the
probative value of admitting this evidence outweighs its prejudicial
effect to the accused; and (2) evidence that any witness has been
convicted of a crime shall be admitted if it involved dishonesty or
false statement, regardless of the punishment. In determining whether a
crime tried by a court-martial was punishable by death, dishonorable
discharge, or imprisonment in excess of one year, the maximum punishment
prescribed by the President under Article 56 at the time of the
conviction applies without regard to whether the case was tried by
general, special or summary court-martial.[^17]

Convictions pending appeal are admissible under this rule. This rule
applies only to prior convictions admitted to impeach a witness,[^18]
even if the conviction is pending appeal.[^19] Rule 609 does not apply
when the reason for the admission of the evidence is for something other
than impeachment.

*1. Admissibility of Prior Conviction Based on Penalty for the Crime*

*(Mil. R. Evid. 609(a)(1))*

Under Rule 609(a)(1), counsel may impeach a witness using the witness's
prior conviction, if the witness was convicted of a crime carrying a
penalty of death, dishonorable discharge or over one year of
confinement.[^20] Under subsection (a)(1), there is no requirement that
the crime be one involving dishonesty or false statement. Thus, a prior
conviction for any offense meeting the criteria in (a)(1) can be used to
impeach, even if the conviction does not involve a dishonesty-type
offense. In determining whether a crime meets the (a)(1) criteria, the
courts look at what penalty was authorized, rather than at what
punishment was actually imposed.[^21] For example, a conviction for the
use of marijuana, a violation of Article 112a, Uniform Code of Military
Justice,[^22] carries the potential for a dishonorable discharge. Hence,
a prior conviction for a violation of Article 112a qualifies for
admission under Rule 609(a)(1).[^23]

This subsection of Rule 609 contains two different balancing tests. One
balancing test is applied if the witness is someone other than the
accused and the other test is applied if the accused testifies.[^24] The
need for a different balancing test for an accused is

a reflection of how important and potentially devastating conviction
evidence can be on guilt or innocence determinations. Criminal
defendants face unique prejudicial risks when \[Rule\] 609 evidence is
offered against them. Factfinders may misinterpret conviction evidence
as proof of the accused's criminal propensity or disposition to commit
criminal offenses. This is so even where the military judge provides
tailored limiting instructions.[^25]

Because of this concern, Rule 609(a) has a special balancing test for
when the accused testifies.

In contrast, for a witness other than the accused, the court is not as
concerned with questions regarding propensity or criminal disposition,
which may taint an adjudication of guilt or innocence. For such a
witness, the Rule uses the balancing test found in Mil. R. Evid. 403.
According to that Rule, an ordinary witness's prior conviction is
excluded only if the prejudicial effect substantially outweighs the
probative value of the prior conviction.

When an accused testifies and counsel wants to impeach with a prior
conviction, the military judge must weigh the probative value of
admitting the conviction against the prejudicial effect to the accused.
If the probative value outweighs the prejudice to the accused, the
evidence is admitted.[^26] If not, the evidence is rejected. An even
balance favors exclusion.[^27] Another way of looking at the accused's
balancing test is to consider the reason for the special rule---to avoid
problems with a factfinder misusing the conviction. If considered in
this manner the balancing test becomes: "a previous conviction's
*impeachment* value must outweigh its criminal character *propensity*
prejudicial effect."[^28]

Although "this balancing process is obviously not amenable to precise
mathematical application,"[^29] courts have established factors for a
judge to consider when applying the accused's balancing test found in
Rule 609(a)(1).[^30]

In *Brenizer*, the Court of Military Appeals set forth this list of
factors:

\(1\) The impeachment value of the prior crime.

\(2\) The point in time of the conviction and the witness's subsequent
history.

\(3\) The similarity between the past crime and the charged crime.

\(4\) The importance of the defendant's testimony.

\(5\) The centrality of the credibility issue.[^31]

The court noted that this "list is not claimed to be exhaustive and
other pertinent factors may in the future be identified."[^32] The
proponent of the evidence has the "burden of showing, based on these
factors, that the proffered evidence's probative value substantially
outweighs its prejudicial effect."[^33]

In a particularly illustrative case, *United States v. Ross,*[^34] the
United States Air Force Court of Criminal Appeals applied the five
*Breziner* factors in determining the admissibility of a prior
conviction under Rule 609(a)(1). The accused in *Ross* was charged with
use of marijuana on or about 22 July 1994, based on a positive
urinalysis result. During her direct testimony, the accused reflected,
"I didn't---I couldn't figure out any reason why it \[her urinalysis
result\] should be positive."[^35] Trial counsel requested permission to
cross-examine the accused about a prior conviction for using marijuana,
also based on a positive urinalysis. Trial counsel argued the May 1994
conviction was admissible under Rule 609(a)(1) to impeach the accused's
claim that she did not know why her urine tested positive. The military
judge allowed the cross-examination, using the "more restrictive" Rule
609(a)(1) balancing test.[^36] The court found that there was a high
degree of prejudice, due to the similar nature of the offenses. However,
the court also considered the other *Breziner* factors, stating:

Considering the other balancing factors, the impeachment value of the
prior drug conviction was high, particularly when \[the accused\] went
beyond a basic denial of marijuana use to a "hear no evil, see no evil,"
don't know how it could have gotten there explanation of her positive
urinalysis. \[The accused's\] use of marijuana while a non-commissioned
officer also showed a failure to adhere to basic military law and
discipline . . . . Furthermore, the prior conviction was so close in
time to the current offense that \[the accused\] hardly had time to
reestablish a track record of compliance with the law.

Since \[the accused\] testified, the military judge did not deprive the
members of her evidence. On the contrary, \[the accused's\] denials,
when matched against the lack of breaks in the urinalysis chain of
custody or real missteps in the testing procedure, made her credibility
the key issue in the case. If the members believed her, as opposed to
the urinalysis lab results, they acquitted.[^37]

Although this "juggling feat" was a "close call" the Air Force court
upheld the admission of the prior conviction.[^38]

*2. Admissibility of Prior Conviction Based on the Nature of the Crime*

*(Mil.R.Evid. 609(a)(2))*

Counsel may use a witness's prior conviction to impeach, regardless of
the crime's penalty, if the crime involves dishonesty or false
statements.[^39] This rule applies to any witness or accused that
testifies. The only criteria for admission under Rule 609(a)(2) is
whether the prior conviction was for a crime involving dishonesty or
false statement. Although all criminal acts would seem to have an
element of dishonesty, the term "dishonesty" in Rule 609(a)(2) is
narrowly defined.[^40] Rule 609(a)(2) refers to those convictions which
are "'particularly probative of credibility,' such as those for 'perjury
or subornation of perjury, false statement, criminal fraud,
embezzlement, false pretense, or any other offense in the nature of
*crimen falsi*, the commission of which involves some element of deceit,
untruthfulness or falsification bearing on the accused's propensity to
testify truthfully.'"[^41]

In a pre-rules case, the Court of Military Appeals similarly defined
those crimes bearing on truthfulness as "\[a\]cts of perjury,
subornation of perjury, false statement, or criminal fraud, embezzlement
or false pretense . . . ."[^42] These acts are "generally regarded as
conduct reflecting adversely on an accused's honesty and integrity. Acts
of violence or crimes purely military in nature, on the other hand,
generally have little or no direct bearing on honesty and
integrity."[^43] This definition is logical. Remember, the purpose of
impeachment by using a prior conviction is not to show the witness was a
"bad" person. Instead, the purpose of this type of impeachment is to
show something in the witness's background that directly impacts whether
the fact finder should believe the witness.[^44] The key question when
looking at the admissibility of a crime under Rule 609(a)(2) thus
becomes: does the crime, including the circumstances surrounding the
commission of the crime, tend to show the witness cannot be believed?

In some jurisdictions, including the military courts, crimes other than
perjury, false statement, criminal fraud, embezzlement, or false
pretense may also be admissible under Rule 609(a)(2). If the prior
conviction was for a crime that did not *per se* involve dishonesty as
an element of the crime, these jurisdictions have held that a trial
court may look beyond the elements to determine whether the crime
actually involved dishonesty.[^45] Other jurisdictions limit the inquiry
to whether the statutory elements or the crime, as charged, contain an
element of dishonesty.[^46] Military courts have taken the view that
Rule 609(a)(2) applies to "those convictions involving some element of
untruthfulness or falsification which would tend to demonstrate that \[a
witness\] would be likely to testify untruthfully."[^47] Nevertheless,
military courts are still willing to look beyond the pure statutory
elements of the crime to determine if the crime, as committed, contained
some element of dishonesty impacting the witness's credibility.[^48]

Several courts have ruled that Rule 609(a)(2) does not require a
balancing of probative value against prejudicial effect.[^49] This
position is based on the plain language of Rule 609(a)(2) that mandates
the admission of a qualifying conviction regardless of the prejudicial
effect. The holding is also based on the notion that convictions for
crimes involving dishonesty or false statement do not need a balancing
test since, by their vary nature, their probative value outweighs any
prejudicial effect. However, the courts require close scrutiny of the
nature of the conviction, because of this lack of a balancing test. At
least one commentator has an opposite view, reasoning that the admission
of *crimen falsi* convictions must be balanced against questions of
constitutional problems, military due process, and fundamental
fairness.[^50] The commentator argues further that unless the crime
contains a statutory element indicating dishonesty or false statement,
evidence of a conviction for that crime should not be admitted without
going through Rule 609(a)(1)'s balancing test.[^51]

*3. Other Considerations Under Mil.R.Evid. 609.*

Rule 609 also contains provisions that restrict the use of a prior
conviction to impeach. First, under Rule 609(b), a conviction that is
more that ten years old, even if otherwise admissible under Rule 609(a),
is normally not admitted into evidence.[^52] The proponent of an aged
conviction must give notice of the intent to use the conviction to
impeach.[^53] The ten-year time period for excluding stale convictions
starts to run from either the date of the conviction or the date the
witness was released from any confinement imposed as a result of the
conviction, which ever is later.[^54] If a conviction is "old" under
this criteria, the conviction may still be used to impeach a witness,
but only if "the probative value of the conviction, supported by
specific facts and circumstances, substantially outweighs its
prejudicial effect."[^55] In *Weaver*, the Court of Military Appeals,
anticipating the enactment of the Military Rules of Evidence, considered
this balancing requirement for aged convictions. The court proposed
factors for the military judge to use in balancing the probative against
the prejudicial. The court suggested weighing,

the nature of the conviction itself in terms of its bearing on veracity,
its age, its propensity to influence the minds of the jury improperly,
the necessity for the testimony of the accused in the interests of
justice, and the circumstances of the trial in which the prior
conviction is sought to be introduced.[^56]

More recently, one federal district court listed relevant balancing
factors such as "the nature, age, and severity of the crime and its
relevance to the witness' credibility, the importance of credibility as
an issue in the case, the availability of other means to impeach the
witness, and whether the witness has 'mended his ways' or engaged in
similar conduct recently."[^57] Whatever factors are used to draw the
balance, the important point is that an aged conviction may be admitted,
but only after full consideration of the probative value versus the
prejudicial effect.

The second restriction is that a conviction that has been pardoned,
annulled, or the subject of a certificate of rehabilitation, based on a
finding that the witness has rehabilitated himself, may not be used to
impeach as long as the witness has not committed a subsequent crime
punishable by death, dishonorable discharge, or confinement of more than
a year.[^58] The Army Court of Military Review has held that an accused
who satisfactorily completed his return to duty program did not qualify
for exclusion of his conviction under this rule.[^59] If the pardon,
annulment or certificate of rehabilitation was based on a finding that
the witness was innocent, the prior conviction cannot be used to impeach
at all.[^60]

Third, a juvenile conviction is generally not admissible to
impeach.[^61] However, a juvenile conviction may be admitted to impeach
a witness, other than the accused, if the conviction would have been
admissible had the offender been an adult and if the military judge is
satisfied the admission is necessary.[^62] This exception allows the
military judge to balance "society's interest in not stigmatizing
youthful misconduct and the \[accused's\] confrontation rights."[^63]

Finally, after determining a prior conviction is admissible, the court
must then focus on how to present the information to the fact finder.
Counsel may use an admissible prior conviction to impeach a witness
during cross-examination. However, cross-examination is normally limited
to questions concerning the number of prior convictions, the nature of
the crime committed, and the date and time of each conviction.[^64] It
is usually considered error for counsel to cross-examine the witness
about the details of the witness's conviction,[^65] unless the witness
tries to minimize his guilt regarding the prior conviction. In those
instances, "some latitude in cross-examination \[is\] appropriate."[^66]

Counsel may also offer extrinsic evidence of the witness's prior
conviction.[^67] When offering extrinsic evidence, counsel may offer a
"record embodying the judgment or a copy thereof."[^68] In some cases,
counsel may also prove the fact of a conviction by "evidence of an
admission by the person convicted, or in rare cases, recollection
testimony from a person who witnessed announcement of the
judgment."[^69]

**C. Impeachment by Prior Misconduct**

**Under Military Rule of Evidence 608(b)**

Rule 608(b) reads:

Specific instances of conduct of a witness, for the purpose of attacking
or supporting the credibility of the witness, other than conviction of
crime as provided in Mil. R. Evid. 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the military judge, if
probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the character of the
witness for truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has testified.[^70]

This rule is sometimes confusing, not so much on its face, but in the
manner in which it interacts with other rules which would allow
extrinsic evidence. Rule 608(b) itself is limited to cases in which a
witness, having testified and thereby having placed his character for
truthfulness at issue, is subjected to cross-examination as to prior
instances of conduct which would demonstrate that his character for
truthfulness is poor. In *United States v. Robertson*,[^71] the Court of
Military Appeals set forth a two-prong test for the proper application
of this rule. The court stated that, first, the proponent of the
evidence must have a good faith belief the conduct occurred and, second,
the conduct must relate to untruthfulness.[^72]

The court went on to describe several offenses, which, by their nature,
are probative of untruthfulness. They included perjury, suborning
perjury, false statement, criminal fraud, embezzlement, and false
pretenses. On the other hand, purely military offenses or acts of
violence "generally have little or no direct bearing on honest and
integrity" and therefore would fail the second prong of the test.[^73]

In *Robertson*, the court held that the prosecutor, who was attempting
to impeach the testimony of a defense witness by questioning her about
an alleged prior act of fraud, had an insufficient basis for asking the
question. This was due to the fact that he was relying solely on an
arrest record that did not recite the underlying facts.[^74]

As the rule itself states, however, even if the questioner has a good
faith basis for asking the question and the underlying conduct pertains
to truthfulness, the questioner is still bound by the witness's answer
and may not prove the conduct by extrinsic evidence. Consider, for
example, the following exchange in a capital murder case, in which the
accused testified on the merits.

Q. Now, you have lied before concerning your relationship with Sharon
when you thought you were in trouble, haven't you?

A. No, sir.

Q. Well, do you recall an incident in June 1993 when the police were
called to your house?

A. Yes, sir.

Q. Sharon had reported to them that you had a gun and were threatening
her with that gun, isn't that true?

A. Yes, sir.

Q. And they came out and they asked you if you had a gun, didn't they?

A. Yes, sir.

Q. And you told them no.

A. Initially, I did, yes, sir (sic).

Q. You told them no; isn't that true?

A. Initially.

Q. And they actually found the gun, didn't they?

A. I told them where the gun was.

Q. I want to get this straight, because Officer Sims is going to be in
here and you are telling us that you told them before they found the gun
that you had a gun?

A. I told them where the gun was, yes, sir.

Q. And so if this San Antonio police officer comes in here and says
something different---

DC\. Objection, Your Honor.

Q. \--would she be lying?

MJ. Objection? Argumentative?...Sustained.[^75]

Viewed purely in the context of impeachment under Rule 608(b) this
general line of questioning is admissible to rebut the implication of
truthful character that necessarily attaches whenever a witness
testifies under oath. While the underlying assault with the gun is a
crime of violence which would not satisfy the *Robertson* test, the
apparent false statement to the police officer is pertinent to the
question of the accused's character for truthfulness and was, therefore,
a proper matter to be inquired upon. The good faith basis for asking the
question can be obtained through the prosecutor's prior interview of the
police officer to whom the statement was made. However, viewed simply in
the light of Rule 608(b) it would be improper to call the officer as his
testimony would be considered extrinsic evidence. The accused partially
denied the false statement and, therefore, the prosecutor may not bring
in extrinsic evidence to prove the making of the false statement.

To summarize, therefore, under Rule 608(b) a witness who has testified
under oath and therefore placed his or her character for truthfulness in
issue may be impeached by questions about prior incidents of misconduct.
These incidents must be probative on the issue of truthfulness---such as
perjury, false statement, etc. The questioner must have a good faith
basis for asking the question. If the witness denies the misconduct, the
questioner is stuck with that answer and may not prove it by extrinsic
evidence.[^76]

The practitioner should bear in mind that evidence not admissible under
Rule 608(b) may still be admissible to rebut a statement which the
witness had made under oath. For example, in *United States v.
Trimper,*[^77] the accused, an officer accused of using cocaine and
marijuana, was asked about specific allegations of drug use within the
time frame alleged in the charges. The accused answered categorically "I
have never used cocaine."[^78] Under these circumstances, the
prosecution was permitted to introduce extrinsic evidence, in this case
a lab report of a urinalysis obtained by the accused from a civilian
hospital at his own expense. The court reasoned that there were two
events that would allow the use of extrinsic evidence of a specific
instance of conduct to impeach. The first is when a witness makes a
broad collateral assertion on direct examination that he has never
engaged in a certain type of misconduct. The second is when he
gratuitously responds to a narrowly tailored cross-examination question
with broad information.[^79] Thus, while extrinsic evidence may not be
used to prove acts of misconduct to rebut a witness's general character
for truthfulness, should a witness either on direct or through
gratuitously volunteering information on cross-examination deny certain
misconduct, counsel may rebut the same with extrinsic evidence. [^80]

**D. Impeachment by Prior Inconsistent Statements**

**Under Military Rule of Evidence 613(b)**

Rule 613(b) governs the use of extrinsic evidence of a witness's prior
inconsistent statement as a method of impeachment. The rule reads:

Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or
deny the same and the opposite party is afforded an opportunity to
interrogate he witness thereon, or the interests of justice otherwise
require. This provision does not apply to admissions of a party-opponent
as defined in Mil. R. Evid. 801(d)(2).

The limitation on extrinsic evidence imposed by Rule 613(b) recognizes
the fact that such evidence is, in part, hearsay. Even in those
circumstances in which it is admissible under this rule, it should not
be considered for the truth of the matter asserted. In other words, even
if a witness denies making a prior inconsistent statement, the
subsequent use of that statement under this rule is limited to
impeachment purposes only. It may not be used as substantive evidence.
For example, consider *United States v. Button*,[^81] in which the
accused was tried for, among other offenses, indecent acts and sodomy
with his stepdaughter. Prior to trial the victim made numerous
statements---to her mother, the Security Police, the OSI, and the
Article 32, UCMJ, investigating officer---all of which implicated the
accused. However, when called to the stand at trial as a witness for the
prosecution, the victim denied that the accused had sexually abused her
and recanted her previous inculpatory statements. She admitted to having
made the statements, but averred that they were lies. The government
offered her Article 32 testimony as well as the statement to the OSI,
which were admitted into evidence.[^82]

The Court of Military Appeals subsequently held that the prior statement
to the OSI was erroneously admitted under 613(b) insofar as the victim
had admitted making it and also admitted that it was inconsistent.
Before making its ruling in this regard, the court adopted the
prevailing position of the federal courts that "'extrinsic evidence of a
prior inconsistent statement should not be admitted for impeachment when
(1) the declarant is available and testifies; (2) the declarant admits
making the prior statement: and (3) the declarant acknowledges the
specific inconsistencies between the prior statement and his or her
in-court testimony.'"[^83]

Whenever such evidence is admitted the judge should instruct the members
that they are not to consider the statement as substantive evidence, but
merely for its impeachment value.

However, there is an exception to be found in the distinction between
prior inconsistent statements in general and prior inconsistent
testimony. Rule 801(d)(1) states:

A statement is not hearsay if: (1) Prior statement by a witness. The
declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is (A)
inconsistent with the declarant's testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition . . . [^84]

In other words, if the prior inconsistent statement was made at an
Article 32, UCMJ, Investigation or otherwise satisfies the requirements
of this rule, the statement can be admitted not merely for impeachment
but also as substantive evidence. In *Button* the court properly
admitted the verbatim Article 32 testimony of the child victim for the
members' consideration as substantive evidence on the merits.[^85]
Another example, *United States v. Ureta*,[^86] was also a child sexual
abuse case in which the accused allegedly made certain inculpatory
admissions to his wife. Although she testified under oath and was
cross-examined about those statements at the Article 32, UCMJ,
Investigation, at trial she claimed that her former testimony had been a
lie. The trial counsel questioned her extensively on the Article 32,
UCMJ, testimony and, in light of her unequivocal recantations, the
military judge admitted the transcript of her former testimony as
substantive evidence.

To impeach a witness with a prior inconsistent statement the proponent
must lay a proper foundation. The following colloquy from a noted trial
advocacy handbook is a good example of the proper use of this technique:

Q: Mr. Jones, you say you were about 50 feet from the accident when it
happened?

A: Yes.

Q: There is no doubt in your mind about that?

A: No.

Q: Weren't you actually *over 100 feet* away?

A: No.

Q: Mr. Jones, you talked to a police officer right at the scene a few
minutes after the accident, didn't you?

A: Yes.

Q: Since you talked to him right after the accident, everything was
still fresh in your mind, right?

A: Yes.

Q: You knew the police officer was investigating the accident?

A: Yes.

Q: And you knew it was important to tell the facts accurately as
possible?

A: Yes.

Q: Mr. Jones, you told that police officer, right after the accident,
that you were *over 100 feet away* when the accident happened, didn't
you?

A: Yes.

At this point extrinsic evidence would not be admissible to impeach the
witness, insofar as he has admitted the inconsistency. Had the witness
denied making the statement to the Security Police or denied that it was
inconsistent, then the statement could be admitted as impeachment
evidence. It could be admitted either through the witness himself, if it
was a written statement, or through the police officer to whom it was
made or through some other competent witness. However, the statement
could not be used as substantive evidence,[^87] unless the prior
statement is in the form of prior inconsistent testimony which satisfies
the requirements of Rule 801(d)(1). In that case, the statement may be
admitted not merely to demonstrate the inconsistency, but to prove the
matters asserted therein.[^88]

**E. Impeachment by Contradiction**

Impeachment by contradiction or impeachment by specific
contradiction[^89] is a legitimate method of impeaching a witness's
testimony that is often misunderstood and either misused or not used at
all.[^90] This type of impeachment is not a new concept,[^91] nor is it
a difficult concept. Simply speaking, impeachment by contradiction
"involves showing the tribunal the contrary of a witness's asserted
fact, so as to raise an inference of a general defective
trustworthiness."[^92] Contradictory evidence used to impeach a witness
may be presented to the "tribunal" in the form of cross-examination of
the witness[^93] or through the introduction of extrinsic evidence.[^94]

Impeachment by contradiction is not governed by a specific rule of
evidence, but rather is based on common law principles.[^95] Indeed, if
there were a need for a rule of evidence to support impeachment by
contradiction, there would be no need to go further than Military Rules
of Evidence 401 and 402. Both are rules of relevancy. Relevant evidence
is admissible, irrelevant evidence is not.[^96] Relevant evidence is
evidence that tends to make a material fact more or less probable than
it would be without the evidence.[^97] If a witness testifies to a
relevant material fact, then evidence disproving that material fact
would also be relevant. This is impeachment by contradiction.

It is immaterial that common law concept of impeachment by contradiction
was not specifically codified in the Military Rules of Evidence. As
stated in the Analysis of the Military Rules of Evidence:

It should be noted that the Federal Rules \[of Evidence\] are not
exhaustive, and that a number of different types of techniques of
impeachment are not explicitly codified.

The failure to so codify them does not mean that they are no longer
permissible . . . . Thus, impeachment by contradiction . . . and
impeachment via prior inconsistent statements . . . remain appropriate.
To the extent that the Military Rules \[of Evidence\] do not acknowledge
a particular form of impeachment, it is the intent of the Committee to
allow that method to the same extent it is permissible in the Article
III Courts.[^98]

Some of the problems associated with the use of impeachment by
contradiction may stem from the treatment it receives from those Article
III Courts. Some federal circuits acknowledge that the codification of
evidentiary rules does not eliminate the use of other methods of
impeachment accepted at common law. Other circuits accept the principle
of impeachment by contradiction, but try to shoehorn the type of
impeachment into either Rule 608(b)[^99] or Rule 613.[^100]

Military courts have not been immune to the confusion. For example, in
*United States v. Garcia-Garcia*,[^101] the appellant argued that the
prosecution's rebuttal evidence, appellant's use of marijuana two years
prior to his trial for cocaine use, was improperly admitted. The
appellant, who denied any drug use at all, argued that Rule 608(b)
restricted the introduction of this extrinsic evidence. The Air Force
Court of Military Review did not directly address whether Rule 608(b)
applied under these facts, but did hold the introduction of the evidence
was proper impeachment. The court said, "\[t\]he appellant's gratuitous
statement that he had never used drugs allowed the prosecution to
introduce evidence contradicting it."[^102]

In *United States v. Crumley*,[^103] the Army Court of Military Review
held that "\[e\]xtrinsic evidence of uncharged misconduct is admissible
as an exception to . . . Military Rule of Evidence 608(b) if offered
solely to impeach the credibility of a witness who voluntarily denies
involvement in similar misconduct . . . ."[^104] Although the court
reached a correct result, the ruling should not have been based on Rule
608(b). Instead, the court should have based its ruling on the common
law concept of impeachment by contradiction. In both of these examples,
the courts failed to maintain the distinction between impeachment by
contradiction and impeachment using specific instances of conduct.[^105]

Although this may seem like a distinction without a difference, or a
simple matter of semantics, there is an important distinction between
these two methods of impeachment that should be maintained. Rule 608(b)
allows a witness to be cross-examined about specific acts committed in
the past in order to demonstrate a witness's character for truthfulness
or untruthfulness. In contrast, evidence offered to impeach by
contradiction shows that a witness's in-court testimony was not correct.
"The inference to be drawn is not that the witness was lying, but that
the witness made a mistake of fact, and so perhaps her testimony may
contain other errors and should be discounted accordingly."[^106]
Demonstrating that the witness's testimony was not correct also
impeaches a witness's credibility, but does so without attacking the
witness's character for truthfulness or untruthfulness.

More important to the trial practitioner in maintaining the distinction
between the two methods of impeachment is the admission of extrinsic
evidence. Rule 608(b) prohibits the introduction of extrinsic evidence
to attack or support a witness's credibility.[^107] The prohibition
against using extrinsic evidence found in Rule 608(b) is grounded in the
idea that "while certain prior good or bad acts of a witness may
constitute character evidence bearing on veracity, they are not evidence
of enough force to justify the detour of extrinsic proof."[^108] On the
other hand, impeachment by contradiction permits the use of extrinsic
evidence, with some limitations.[^109] Thus, extrinsic evidence may, or
may not, be admitted before the trier of fact, depending on the theory
of admission. The Sixth Circuit Court of Appeals explained that "Rule
608(b), which under some circumstances, requires the cross-examiner to
'take the answer' given by the witness, does not transform admissible
evidence into inadmissible evidence simply because the evidence also
contradicts cross-examination testimony and undermines the witness'
credibility."[^110]

Keeping differences between the two methods of impeachment firmly in
mind will aid the trial practitioner in making an appropriate argument
when meeting other objections or seeking the admission of evidence. As
the Court of Military Appeals said in *United States v. Banker*,
"\[t\]he failure of the parties at trial to distinguish between these
different methods of impeachment led the military judge to bar the
testimony . . . in the present case."[^111]

*Banker* is an excellent example of what can go wrong when trial
practitioners do not understand the varying methods of impeachment. In
*Banker*, the accused was charged with selling drugs to another airman
on three different occasions. The government's primary evidence was the
testimony of a government source. The source testified that he started
working undercover for investigators because he wanted to help get rid
of drug dealing. On cross-examination the defense counsel, among other
things, asked the source if he had used or bought drugs since starting
undercover work. The source denied using or buying drugs from anyone,
other than the accused. The defense counsel then specifically asked the
source whether he had bought "speed" on a specific day from a specific
individual while another individual watched. The source again denied he
bought drugs from anyone else. He also denied using drugs with specific
individuals on a specific day. In light of the source's answers to these
cross-examination questions, the defense counsel wanted to call a
witness who would testify he observed the source buy "speed" from
another airman. The prosecution argued that under Rule 608(b), a witness
could not be impeached by extrinsic evidence of acts of misconduct. The
military judge agreed and the testimony was not admitted.

On appeal, the accused argued the military judge should have admitted
the evidence. Although ultimately upholding the conviction, the Court of
Military Appeals discussed impeachment at length and opined that had the
defense counsel asserted a correct theory of impeachment, the evidence
might well have been admissible.[^112]

During its discussion, the court clearly distinguished impeachment by
contradiction from other methods of impeachment, including those that
show a witness's bad character for truthfulness,[^113] show a prior
inconsistent statement,[^114] and show bias, prejudice or a witness's
motive.[^115] The court held that impeachment by contradiction is one of
four methods of impeachment. Impeachment by contradiction, "involves
showing the tribunal the contrary of a witness's asserted fact, so as to
raise an inference of a general defective trustworthiness."[^116] The
court made clear that impeachment by contradiction does not entail
attacking the witness's character for truthfulness.[^117] Instead, this
method of impeachment allows the introduction of extrinsic evidence to
show the witness's assertion of a fact during the witness's testimony
was not correct.

The court also distinguished impeachment by contradiction from
impeachment by introduction of a prior inconsistent statement under Rule
613. The court noted:

Not a single case was offered at trial or on appeal to show that such a
statement falls within this rule of evidence. This statement was
purportedly made by \[the source\] during the very incident which was in
issue. It was not evidence of a prior assertion of fact but was evidence
of the fact asserted . . . . Accordingly, we hold the proffered
testimony was not admissible under \[Rule 613\] to show \[the source\]
was capable of error in his testimony.[^118]

Since *Banker*, the court has continued to recognize contradiction as a
separate method of impeachment.[^119]

Impeachment by contradiction is not, however, unlimited. "The normal
rule of impeachment by contradiction is that a witness may not be
contradicted by extrinsic evidence on a collateral matter."[^120] This
"collateral evidence rule" is "easy to state and difficult to
apply."[^121] "\[O\]ne may not contradict for the sake of contradiction;
the evidence must have an independent purpose and an independent ground
for admission."[^122] Simply speaking, extrinsic evidence "is not
collateral 'if it contradicts on a matter that counts in the
case.'"[^123] The rule is designed to allow trial court judges the
discretion to reject evidence that will distract the trier of fact from
the issue to be determined.[^124] In essence then, the collateral
evidence rule is a rule of materiality.

If an accused testifies to matters during direct examination that may be
impeached by contradiction, the collateral evidence rule usually will
not apply.[^125] Testimonial evidence elicited on direct examination is
usually considered material and may be contradicted using questions
during cross-examination or by introducing extrinsic evidence.[^126]
"\[W\]here a defendant in his direct testimony falsely states a specific
fact, 'the prosecution will not be prevented from proving, either
through cross-examination or by calling its own witnesses, that he lied
as to that fact.'"[^127] As the Second Circuit Court of Appeals said in
*United States v. Beno*, "\[t\]he rationale behind this rule is not
difficult to perceive, for even if the issue injected is irrelevant or
collateral, a defendant should not be allowed to profit by a
gratuitously offered misstatement."[^128]

The case of Glenn Arthur McClintic, Jr., is a good example of this
principle. After his participation in several swindles came to light,
McClintic was charged in federal court with several counts of wire and
mail fraud, interstate transportation of stolen property, receiving
stolen property, and interstate transportation of stolen property.
McClintic, and others, set up false companies, ordered goods from
wholesalers, and then sold the goods without paying for them. They were
also involved in a check-kiting scheme where they would set up bogus
companies, write payroll checks and then cash them at retail stores over
a weekend and abscond with the money. McClintic testified on his own
behalf, claiming that his involvement in the first swindle at Rockford,
Illinois was the first time he had done anything illegal. The trial
court allowed cross-examination into a prior act of misconduct where
McClintic tried to sell a \$200.00 ring for \$8,000.00 to a Federal
Bureau of Investigation undercover agent. The United States Court of
Appeals for the Eighth Circuit held the inquiry was proper impeachment
by contradiction. They reasoned that "\[b\]y painting a picture of
himself as an innocent who succumbed to sympathy for \[his accomplice\]
in the Rockford Illinois scheme, the defendant invited cross-examination
concerning this previous misconduct."[^129]

In *McClintic*, the defendant's direct examination tried to paint a
false picture, thereby allowing the prosecution to correct the false
impression through introduction of extrinsic evidence. This is classic
impeachment by contradiction, "presenting evidence that a part of all of
a witness's testimony is incorrect."[^130]

A recent Air Force case also provides an excellent illustration of
impeachment by contradiction.[^131] A1C Brian D. Benson was charged with
using a loaded firearm to assault a 20-year old civilian named Heywood.
Benson was convicted, despite evidence that he fired the gun into the
air after Heywood threatened to kill him. At trial, the military judge
granted a prosecution motion to limit inquiry into an incident that
happened about a month after the shooting. Heywood had approached
Benson's roommate at a convenience store, displayed a gun tucked into
his pants, and said "Brian \[Benson\] missed but I won't." After Heywood
testified on direct examination that he wasn't the kind of person who
would threaten someone's life, the defense asked to cross-examine
Heywood on the convenience store incident. The military judge denied the
defense request, ruling that Heywood's act of drawing a gun on Benson's
roommate was irrelevant and that the relevance of the evidence was
outweighed by the ancillary nature of the incident and the risk of
starting a mini-trial.[^132]

The Air Force Court of Criminal Appeals disagreed. They found that
Heywood's statement on direct opened the door to the evidence as
impeachment by contradiction. The court also held that the military
judge's ruling the evidence was collateral "misses the mark."[^133]
Heywood's responses on direct examination painted a picture of someone
who would not buy a gun, threaten someone with a gun, or do "this and
that with a gun."[^134] Evidence that he would approach a person at a
convenience store, display a gun, and make threatening comments directly
contradicted that picture. Heywood's testimony about the shooting
incident was crucial to the government's case and thus his credibility
was also a material issue. The Air Force court also found that the
military judge's determination that the relevance of the evidence was
"merely" outweighed by the possibility of a mini-trial applied the wrong
standard.[^135] A military judge conducting a Mil. R. Evid. 403
balancing must find that relevant evidence is *substantially* outweighed
by other concerns.[^136]

The collateral evidence rule often comes into play when a witness makes
an assertion of fact during cross-examination. Some courts are extremely
restrictive, holding that the collateral evidence rule will *per se*
prohibit contradiction of facts asserted during cross-examination.[^137]
Other courts hold the collateral evidence rule applies only when the
fact or assertion to be contradicted arose during the witness's
cross-examination rather than during direct examination.[^138] These
courts will allow impeachment by contradiction as long as the fact
elicited during cross-examination is not collateral. This is the
approach taken by military courts.[^139]

Whatever the approach taken with contradicting facts elicited through
cross-examination, most courts, including military courts, allow
introduction of extrinsic evidence to contradict broad statements
volunteered by an accused during direct[^140] or on
cross-examination.[^141] However, the broad statement must be material,
in other words not collateral. This rule represents a compromise between
the need to keep a trial focused on material issues and the need to deny
an accused the ability to profit from a gratuitously offered
misstatement.[^142] According to the Navy-Marine Corps Court of Military
Review the compromise resulted from a

Hobson's choice of admitting prior uncharged misconduct or of opening
the door to presentation of evidence of such acts in rebuttal. The net
effect of such a rule would be to permit the introduction of specific
acts of prior misconduct whenever the defendant took the stand. That
result could not be squared with the provisions of Rule 404(b) . . . .
For these reasons federal courts which have considered the question have
limited use of otherwise inadmissible evidence for impeachment by
contradiction "to contradiction of specific false statements made by
defendants on direct examination" or to statements volunteered by the
defendant on cross-examination.[^143]

The *Trimper* case is an excellent example of the way an accused can be
his own worst enemy. Trimper was an Air Force judge advocate charged
with wrongful use of cocaine and marijuana on divers occasions. The
prosecution presented several witnesses who testified that they had
observed Trimper using drugs during the relevant time frame. Trimper
testified during direct and on cross-examination that these witnesses
had lied and that all had motives for their perjury. He also made
several sweeping denials of drug use. The following is illustrative:

Q. Are you aware that tachycardia or accelerated heart rate is a symptom
of cocaine use?

A. I have heard that.

Q. Did you use cocaine *at any time the night before* \[the feared heart
attack\]?

A. *I have never used cocaine.*[^144]

Trimper also repeated his sweeping denials of drug use in response to
other cross-examination questions and again on redirect. In response to
these broad denials, the prosecution sought to cross-examine Trimper
about a positive urinalysis performed at a local civilian hospital at
Trimper's request. The military judge allowed the cross-examination and
the introduction of the report, finding that they contradicted Trimper's
denials of drug use. The Court of Military Appeals, relying on *Walder
v. United States,*[^145] held the evidence of Trimper's positive
urinalysis was proper, even though the evidence may not have been
otherwise admissible.[^146] The court said, "\[i\]f a witness makes a
broad collateral assertion on direct examination that he has never
engaged in a certain type of misconduct or if he volunteers such broad
information in responding to appropriately narrow cross-examination, he
may be impeached by extrinsic evidence."[^147]

The *Trimper* court's holding has also been echoed in other cases.[^148]
The availability of impeachment by contradiction adds a useful, and
highly effective, tool to the litigator's toolbox. However, a good
litigator must know when it's use is appropriate and when it is not.

**III. IMPEACHMENT BASED ON PERCEPTION**

**A. Impeachment by Showing Bias**

**Under Military Rule of Evidence 608(c)**

Although bias clearly relates to truthfulness, we include it in this
section because it can color a witness's testimony even without an
effort to distort the truth. Sympathy, induced by a variety of factors,
can affect how a witness perceives facts which are the subject of his
testimony. This is especially true in the case of children called to
testify against an abusive parent. Of course, as the cases below
illustrate, bias can establish not merely that one's perceptions are
unreliable but also that the witness has a motive to prevaricate. Bias
is, therefore, a more wide-open form of impeachment, whose rules are
based on basic relevance rather than the more technical foundational
requirements of other rules.[^149]

Rule 608(c) reads:

Bias, prejudice, or any motive to misrepresent may be shown to impeach
the witness either by examination of the witness or by evidence
otherwise adduced.[^150]

The sort of facts which establish bias are broad in scope. Bias can
arise from wide array of circumstances such as the salary and employment
circumstances of an expert witness[^151] or of a principal government
witness;[^152] a woman's fear of physical abuse by her husband as a
motive to claim that sex with another man was rape;[^153] or threats by
one parent against a child sexual abuse victim to prevent her from
testifying against the other parent.[^154] The courts have held that to
exclude evidence of bias may rise to the level of a denial of the right
of confrontation, in that in effect it is part and parcel of the right
of cross-examination.[^155] The Supreme Court has observed:

Proof of bias is almost always relevant because the jury, as finder of
fact and weigher of credibility, has historically been entitled to
assess all evidence which might bear on the accuracy and truth of a
witness' testimony. The "common law of evidence" allowed the showing of
bias by extrinsic evidence, while requiring the cross-examiner to "take
the answer of the witness" with respect to less favored forms of
impeachment.[^156]

As stated above, the mere fact that evidence is inadmissible for one
purpose does not prevent its admission for another. In the case of
extrinsic evidence, Rule 608(b)'s prohibition of its use to establish a
bad character for truthfulness does not prevent its being admitted to
show that the witness's testimony is motivated by bias. Sometimes these
two rules are intertwined.

For example, in *United States v. Bahr*,[^157] the accused was charged
with sodomy and indecent acts with his daughter, who was under sixteen.
The defense sought to impeach the victim's testimony by eliciting from
her admissions that she "lied to get a lot of attention"[^158] and that
she hated her mother. When the victim denied the latter accusation, the
defense submitted extracts from her diaries in which the victim
expressed hatred for her mother. The diary contained such entries as, "I
hate my Mom . . . I hate her guts she's so stupid and dumb it's
pathetic. She never lets me do anything . . . My mom and Dad are pests
today, yesterday, my mother almost pushed me down in front of public . .
. I'll get back when I'm 18 yrs. old."[^159] There were numerous other
entries in a similar vein, many of which were obscene.[^160]

The military judge erroneously refused to admit the diary entry, under
the apparent impression that the victim's alleged hatred of her mother
was elicited to show general untruthfulness under Rule 608(b). However,
as the Court of Military Appeals observed, such evidence is probative on
the issue of bias, in that the girl's hatred of her mother was so
intense that she had a motive to harm her mother's husband.[^161] Under
the circumstances, therefore, the extrinsic evidence of the diary was
admissible under Rule 608(c) as constituting "evidence otherwise
adduced."[^162]

Unlike other forms of impeachment, there is no formal foundation that
must be laid in order to establish bias. Of course, some foundational
questions will be necessary to orient the court members and to avoid a
relevancy objection. For example, in a case in which a witness
cooperates in the investigation against an accused in order to seek
clemency in the witness's own court martial, the following illustrates a
possible line of attack for the defense.

Q. Isn't it true that your BCD was still pending or Bad Conduct
Discharge was still pending at that time?

A. I believe it was, yes sir.

Q. Isn't it true that part of the deal with the Government was to have
the BCD suspended if you cooperated with the Government? Isn't that
true?

A. That is true.[^163]

In a situation such as this, the possible bias is established and no
further questioning is needed on that point. Inexperienced counsel often
vitiate an effective cross by repeated or argumentative questioning.
Often the brief two or three question cross-examination is the most
effective.

**B. Impeachment by Showing "Deficiencies in the Elements of
Competency"**

Impeachment by demonstrating a witness's "deficiencies in the elements
of competency" is nothing more than showing the witness has a problem
with a capacity to use his or her senses.[^164] In *United States v.
Sojfer*, the Court of Appeals for the Armed Forces explained that "a
witness' interpretation of an event depends on whether her perception is
impaired. For example, the individual may be hearing-impaired or may not
have been wearing corrective lenses at the time of the crime. A past or
present mental condition also may impact on a person's ability to
perceive."[^165]

An attack on a witness's ability to observe and remember a factual
situation is different from impeachment by showing a witness's
bias.[^166] The former attacks the witness's ability to perceive the
facts related while the later attacks the witness's testimony by
demonstrating the witness has an internal "screen" through which the
witness interpreted the event. It is the difference between showing that
the witness saw what they wanted to see based on their internal belief
system; and showing that the witness could not see because the he wasn't
wearing his eyeglasses.[^167]

Like impeachment by showing a witness's bias, counsel may use extrinsic
evidence to show the witness's inability to observe, remember and
recollect a fact.[^168] Such extrinsic evidence may come in the form of
records, such as medical or mental health records,[^169] or may be
testified to by a witness with relevant knowledge.[^170] Although
extrinsic evidence is admissible, cross-examination to impeach the
witness can also be a very useful tool.

Most of the time, "deficiencies in the elements of competency" are
simple to identify, all it takes is a little investigation. For example,
in a hypothetical drug case the prosecution used an eyewitness who made
a written statement that he was in the car when the accused, who was
driving, smoked a marijuana cigarette. On direct-examination, the
witness testified he saw another passenger in the car pass a marijuana
cigarette to the driver. However, on cross-examination the defense
counsel was able to show the witness normally wore contact lenses.
Further, the defense counsel brought out that the witness could not
focus on objects more than an arm's length away without his glasses or
contact lenses. Finally, the defense counsel elicited that the witness
had not been wearing his glasses or contacts when riding in the car. The
cross-examination could have gone like this:

Q: You wear glasses?

A: Yes, but I normally wear contacts.

Q: You weren't wearing your contacts on 2 December 1997 when you rode
with SSgt Smith to the Cabana Club, were you?

A: No. I took them out because I was tired.

Q: Were you wearing your glasses on 2 December 1997 when you rode with
SSgt Smith to the Cabana Club?

A: No.

Q: Without your contacts or glasses, you can't see more than two feet?

A: No.

Q: When you rode with SSgt Smith, you were in the back seat?

A: Yes.

Q: The people in the front seat were more than two feet away, weren't
they.

A: Yes.

With this simple cross-examination, the defense counsel has demonstrated
that the witness could not have seen what the witness testified he saw.
Using the same hypothetical, the defense counsel could have also shown
the witness could not have seen the accused smoke the marijuana
cigarette. Since the witness was situated more than two feet away from
the individuals in the front seat he would have been unable to see the
witness take something to his mouth.

Other "deficiencies in the elements of competency" deal with the
witness's ability to record and process information. For example, if a
witness is intoxicated from alcohol or drug use, the witness's
observations and memory are likely faulty. In *Henderson v. Detella*,
the Seventh Circuit Court of Appeals, held that the

use of narcotics can, obviously, affect the ability of a witness to
perceive, to recall, and to recount the events she has observed. Whether
\[a witness\] may have been under the influence of narcotics at the time
of the offense (or at some other pertinent time) was thus an appropriate
subject of inquiry and impeachment.[^171]

Aside from drug or alcohol use, other circumstances may also impact a
witness's ability to observe, record, and recollect information. For
example, a mentally challenged witness may have demonstrable memory
problems. During cross-examination, counsel should demonstrate these
problems by showing the members the witness cannot remember simple
matters like the witness's address or the names of relevant
people.[^172] As long as the cross-examination relates to a witness's
cognitive abilities, impeachment questions or extrinsic evidence will be
admissible. But without that connection, cross-examination into a
witness's prior acts will only be viewed as an attempt to impeach the
witness's character.[^173]

A witness's mental illness may also impact the witness's cognitive
abilities.[^174] The mental disorder must, however, be relevant to the
purpose of impeachment, which is to examine the witness's believability
and the truth of his or her testimony. "Certain forms of mental disorder
have high probative value on the issue of credibility."[^175] One
federal circuit court conservatively listed those types of emotional or
mental defects which may impact the accuracy of testimony as including,
"'the psychoses, most or all of the neuroses, defects in the structure
of the nervous system, mental deficiency, alcoholism, drug addiction and
psychopathic personality.'"[^176] The court went on to explain:

A psychotic's veracity may be impaired by lack of capacity to observe,
correlate or recollect actual events. A paranoid person may interpret a
reality skewed by suspicions, antipathies or fantasies. A schizophrenic
may have difficulty distinguishing fact from fantasy and may have his
memory distorted by delusions, hallucinations and paranoid thinking. A
paranoid schizophrenic, though he may appear normal and his judgment on
matters outside his delusional system may remain intact, may harbor
delusions of grandeur or persecution that grossly distort his reactions
to events.[^177]

Military courts have also accepted the proposition that a witness's
mental condition may be relevant for impeachment. In *United States v.
Eshalomi*,[^178] the Court of Military Appeals reversed a conviction for
burglary, rape, assault with the intent to commit sodomy, and indecent
assault based on a discovery error. The trial counsel had not disclosed
evidence of the victim's prior mental condition which could have been
used to impeach the witness's testimony. More recently in *United States
v. Sojfer*,[^179] the same court included a person's past or present
mental condition in a listing of things that might impair a witness's
interpretation of events.

Even if a witness has been treated for a mental condition in the past,
impeachment evidence still must be relevant.[^180] The mental condition
must have somehow impacted the witness's ability to perceive and recall
the events that are the subject of the testimony, or impact the
witness's ability to testify truthfully and accurately.[^181] In *United
States v. Butt*, the First Circuit Court of Appeals determined that
evidence of mental instability is relevant for impeachment "only where,
during the time-frame of the events testified to, the witness exhibited
a pronounced disposition to lie or hallucinate, or suffered from a
severe illness, such as schizophrenia, that dramatically impaired her
ability to perceive and tell the truth."[^182] The Court of Appeals for
the District of Columbia believed the *Butt* test was too narrow and
found, "it is enough to say that we agree that evidence regarding mental
illness is relevant only when it may reasonably cast doubt on the
ability or willingness of a witness to tell the truth."[^183] Since the
purpose of impeachment is to test a witness's credibility, the more
appropriate test considers whether the witness's illness or mental
condition could have an effect on their observation, recollection, or
description of the relevant facts.[^184]

Inquiry into a witness's mental condition for the purposes of
impeachment should not be confused with a witness's mental competency to
testify. "Credibility is a jury question, whereas competency is a
'threshold question of law to be answered by the judge.'"[^185] Even if
the witness's mental condition is not so severe that the witness is
incompetent to testify, evidence on how the mental condition effects the
witness's ability to perceive events may be relevant for impeachment.
This was recognized as early as 1950, when a Federal court stated,
"\[e\]vidence of insanity is not merely for the judge on the preliminary
question of competency, but goes to the jury to affect
credibility."[^186]

**IV. CONCLUSION**

The Sixth Amendment to the United States Constitution[^187] guarantees a
criminal defendant the right to be confronted with the witnesses against
her.[^188] The Supreme Court has held that cross-examination is
essential in order to safeguard the accuracy of the fact-finding process
in our adversarial system of justice.[^189] It is "the principle means
by which the believability of a witness and the truth of his testimony
are tested."[^190]

Cross-examination is both an art and a science. The art is in
understanding how to best present available impeachment evidence, in
relationship to the rest of your case. The science is in knowing and
being able to apply the various methods of impeachment. The science of
cross-examination is at times difficult because the rules on impeachment
can be confusing and evidence that may be admissible under one theory
may not be admissible under another. Adding to the confusion are
differing rules on when extrinsic evidence may be admissible. As the
Supreme Court said in *Michelson v. United States*:

\[M\]uch of this law is archaic, paradoxical and full of compromises and
compensations by which an irrational advantage to one side is offset by
a poorly reasoned counterprivilege to the other. But somehow it has
proved a workable even if clumsy system when moderated by discretionary
controls in the hands of a wise and strong trial court.[^191]

This clumsy, but workable, system can be effective. The key to working
this system is to keep in mind that the "goal of effective
cross-examination is to impeach the credibility of opposing
witnesses."[^192]

[^1]: ^\*^ *Lt Col Moody (B.A., Samford University; M.A., University of
    Alabama; J.D., Cumberland School of Law of Samford University;
    LL.M., Tulane University) is Chief of the Employee Law Branch of the
    General Law Division, Office of The Judge Advocate General. He is a
    member of the Bar of the State of Alabama.*

[^2]: ^\**\**^ *Lt Col Coacher (B.S., Northern State College; J.D.,
    University of South Dakota School of Law) is the Chief, Special Law
    Branch, General Law Division, Office of the Judge Advocate General.
    She is a member of the South Dakota Bar.*

[^3]: United States v. Cudlitz, 72 F.3d 992, 995 (1^st^ Cir. 1996).

[^4]: [Manual for Courts-Martial]{.smallcaps}, United States (1995 ed.)
    \[hereinafter MCM\], Part III, Military Rules of Evidence
    \[hereinafter Mil. R. Evid.\].

[^5]: *See* United States v. Maden, 114 F.3d 155 (10^th^ Cir. 1998);
    United States v. Procopio, 88 F.3d 21 (1^st^ Cir. 1996); United
    States v. Betts, 16 F.3d 748 (7^th^ Cir. 1994); United States v.
    Pruitt, 46 M.J. 148 (1997); United States v. Rivera, 23 M.J. 89
    (C.M.A. 1986); United States v. Hunter, 21 M.J. 240 (C.M.A. 1986);
    United States v. Shields, 20 M.J. 175 (C.M.A. 1985); United States
    v. Everage, 19 M.J. 189 (C.M.A. 1985); United States v. Thomas, 11
    M.J. 388 (C.M.A. 1981).

[^6]: United States v. Toro, 37 M.J. 313 (C.M.A. 1993).

[^7]: *Id*. at 317.

[^8]: *Id*.

[^9]: *Id*.

[^10]: *Id*. *See als*o U.S. v. Crowell, 6 M.J. 944 (A.C.M.R. 1979).

[^11]: *Toro*, 37 M.J. at 318.

    > The testimony that the informants were the "very best sources"
    > appears to violate the rules because it does not involve
    > traditional veracity evidence. Moreover, the prosecutor did not
    > seek to lay a proper foundation for reputation or opinion evidence
    > as to the witness' truthfulness. Had an objection been made to the
    > lack of a proper foundation or to the testimony that they were the
    > "very best sources" the judge could have taken curative measures.
    > However, the defense did not object and thereby waived the error.
    > . . .

    *See also* United States v. Allard, 19 M.J. 346 (C.M.A. 1985).

[^12]: United States v. Robertson, 39 M.J. 211 (C.M.A. 1994).

[^13]: *Id*. at 216. "\[T\]he burden is upon the proponent to set forth
    or make an offer of proof of his or her evidence. Mil. R. Evid.
    103(a)(2). Here the judge specifically asked defense counsel to lay
    a proper foundation for Mrs. Mcculloughs opinion of appellant's
    reputation, but defense counsel failed to do so. In order to be
    admitted on the merits, character evidence must relate to a
    'pertinent \[character\] trait.' Mil. R. Evid. 404(a). The judge
    asked what character trait civilian defense counsel was seeking to
    prove by Mrs. McCullough's testimony; counsel asserted it was
    'character as far as honest.' The judge responded that this would
    not be admissible because appellant's character for honesty had not
    yet been placed in issue because appellant had not testified.
    Counsel neither sought to have Mrs. McCullough's testimony
    introduced to prove what was at issue nor to recall her following
    appellant's testimony or ask for conditional admission of the
    evidence based on appellant's anticipated testimony." *Id*. at 217.

[^14]: The same rules also apply to the accused. "Generally, the accused
    who elects to testify is subject to impeachment just like any other
    witness. . . Thus, the accused opens the door to his or her
    character for truthfulness merely by testifying. However, the
    accused may not bolster credibility through character for
    truthfulness evidence until the prosecutor has attacked it, either
    through character evidence or some other means." United States v.
    Pruitt, 43 M.J. 864, 868 (A.F.Ct.Crim.App. 1996). *See also* United
    States v. Gleason, 43 M.J. 69 (1995) and *see* United States v.
    Birdsall, 47 M.J. 404 (1998), (concerning the inadmissibility of
    opinion testimony by expert as to truthfulness of witness).

[^15]: United States v. Ross, 44 M.J. 534 (A.F.Ct.Crim.App. 1996).

[^16]: "The December 1, 1990, amendment to Fed. R. Evid. 609 became part
    of the Military Rules of Evidence by operation of law on May 30,
    1991." United States v. Miller, 48 M.J. 49, 56, n.3 (1998).

[^17]: Mil. R. Evid. 609(a), *supra* note 2.

[^18]: [Stephen A. SALTZBURG, et al., Military Rules of Evidence
    Manual,]{.smallcaps} 763 (4^th^ Ed. 1997).

[^19]: Mil. R. Evid. 609(e), *supra* note 2.

[^20]: Mil. R. Evid. 609(a)(1), *supra* note 2.

[^21]: United States v. Brenizer, 20 M.J. 78 (C.M.A. 1985). In
    *Brenizer*, the accused's prior conviction was imposed by a court
    that did not have the authority to adjudge a punitive discharge.
    Nevertheless, the court found the prior conviction qualified for
    admission under the former version of Mil. R. Evid. 609(a)(1).

[^22]: Uniform Code of Military Justice, 10 U.S.C. § 912a (1994).

[^23]: United States v. Ross, 44 M.J. 534, 535 (A.F. Ct. Crim. App.
    1996). A conviction for absence without leave for more than 30 days,
    a violation of Article 86, UCMJ, *supra* note 19, could also be used
    to impeach under Rule 609(a)(1). *Brenizer*, 20 M.J. at 80.

[^24]: Mil. R. Evid. 609(a), *supra* note 2.

[^25]: [Stephen A. SALTZBURG, et al.,]{.smallcaps} *supra* note 16 at
    767 (footnote omitted).

[^26]: Mil. R. Evid 609(a)(1), *supra* note 2.

[^27]: United States v. Sitton, 39 M.J. 307 (C.M.A. 1994). The court
    notes that the accused's balancing test is similar to that found in
    the prior Rule 609. That prior Rule favored exclusion when evenly
    balanced.

[^28]: [Stephen A. SALTZBURG, et al.,]{.smallcaps} *supra* note 16 at
    767.

[^29]: *Brenizer*, 20 M.J. at 82.

[^30]: *Id*. at 80. The Ninth Circuit has established a virtually
    identical list of factors in *United States v. Alexander*, 48 F.3d
    1477, 1488 (9^th^ Cir. 1995) (citing United States v. Cook, 608 F.2d
    1175, 1185 n.8 (9^th^ Cir. 1979) (*en banc*), *cert. denied,* 444
    U.S. 1034 (1980), *overruled on other grounds,* Luce v. United
    States, 469 U.S. 38 (1984)).

[^31]: *Brenizer*, 20 M.J. at 80. *See also* *Sitton*, 38 M.J. at 308-09
    (extending these factors balancing probative value against
    prejudicial effect when the witnesses is someone other than the
    accused).

[^32]: *Id.* at 80-81.

[^33]: *Alexander*, 48 F.3d at 1488.

[^34]: United States v. Ross, 44 M.J. 534 (A.F.Ct.Crim.App 1996).

[^35]: *Id*. at 535.

[^36]: *Id.* at 536. Although the military judge erroneously cited Mil.
    R. Evid 403 in making his findings, the Air Force court found that
    he actually applied the correct language of the Mil. R. Evid.
    609(a)(1) balancing test.

[^37]: *Id.*

[^38]: *Id.*

[^39]: Mil. R. Evid. 609(a)(2), *supra* note 2; Convictions for crimes
    involving dishonesty are often called *crimen falsi* convictions.
    [Black's Law Dictionary 335 (5]{.smallcaps}th ed. 1979).

[^40]: United States v. Frazier, 14 M.J. 773 (A.C.M.R. 1982), *pet.
    denied* 16 M.J. 93 (C.M.A. 1983); Daniels v. Loizzo, 986 F. Supp.
    245 (S.D.N.Y. 1997).

[^41]: United States v. Hayes, 553 F.2d 824, 827 (2^nd^ Cir. 1977),
    *cert. denied* 434 U.S. 867 (1977) (quoting Conf. Rep. No. 93-1597,
    93d Cong., 2d Session. 9, reprinted in U.S. Code Cong. & Ad. News,
    7098, 7013.).

[^42]: United States v. Weaver, 1 M.J. 111, 118 n.6 (C.M.A. 1975).
    Although a pre-rules case, *Weaver* discussed the proposed Federal
    Rule of Evidence 609, and concluded that the then existing
    court-martial practice was no different.

[^43]: *Id.*

[^44]: *Id.* at 117.

[^45]: *Frazier*, 14 M.J. at 778 n.9; United States v. Dunson, No.
    97-1163, 1998 U.S. App. LEXIS 7867 (10^th^ Cir. Colo. Apr. 24, 1998)
    (holding shoplifting offense did not involve deceit or dishonesty
    and was not admissible under Rule 609(a)(2)).

[^46]: United States v. Lewis, 626 F.2d 940 (D.C. Cir. 1980).

[^47]: *Frazier*, 14 M.J. at 778; United States v. Huetten-Rauch, 16
    M.J. 638 (A.F.C.M.R. 1993) (noting proponent of impeachment evidence
    was unable to establish that shoplifting offense involved dishonesty
    or false statement).

[^48]: *Frazier*, 14 M.J. at 778 n.9. *See also* *Brenizer*, 20 M.J. at
    80, where the Court of Military Appeals held that "an unauthorized
    absence does not *ordinarily* involve dishonesty or false statement"
    and is thus not admissible under Rule 609(a)(2). With the use of the
    word "ordinarily" it would appear that the Court of Military Appeals
    would also look to the factual basis of an offense and not limit the
    inquiry to the elements of the offense. *Accord* United States v.
    Ross, 44 M.J. 534, 535 ("Use of marijuana is *usually* not a crime
    involving dishonesty or false statement."). For a listing of
    offenses which have and have not qualified for admission, or not,
    see the cases cited in *Frazier*, 14 M.J. at 778 nn.6-8.

[^49]: *Frazier*, 14 M.J. at 776; United States v. Guardia, 135 F.3d
    1326 (10^th^ Cir. 1998). Interpreting the impact of Fed. R. Evid.
    403 on Fed. R. Evid. 414 and 415, the 10^th^ Circuit Court of
    Appeals held, "Rule 403 applies to all evidence admitted in federal
    court, except in those rare instances when other rules make an
    exception to it. *See, e.g.*, Fed. R. Evid. 609(a)(2) (mandating
    that prior conviction of a witness be admitted for impeachment
    purposes if prior crime involved dishonesty)." *Guardia*, 135 F.3d
    at 1329. *See also* United States v. Rochelle, No. 96-30329, 1997
    U.S. App. LEXIS 33175, at \*3 (9^th^ Cir. Or. Nov. 19, 1997) ("A
    conviction for any crime involving dishonesty or a false statement,
    such as wire fraud, is admissible under Rule 609(a)(2) without any
    balancing analysis.").

[^50]: [Stephen A. SALTZBURG, et al.,]{.smallcaps} *supra* note
    16[,]{.smallcaps} at 770. *See also* United States v. Toney, 615
    F.2d 277, 283 (5^th^ Cir. 1980) (Tuttle, J. dissenting).

[^51]: [Stephen A. SALTZBURG, et al.,]{.smallcaps} *supra* note 16 at
    771.

[^52]: Mil. R. Evid. 609(b), *supra* note 2.

[^53]: *Id.*

[^54]: *Id.*

[^55]: United States v. Weaver, 1 M.J. 111, 117 (C.M.A. 1975); Mil. R.
    Evid. 609(b), *supra* note 2.

[^56]: *Weaver*, 1 M.J. at 117-118 (footnotes omitted).

[^57]: Daniels v. Loizzo, 986 F.Supp. 245, 252 (S.D.N.Y. 1997).

[^58]: Mil. R. Evid. 609(c)(1), *supra* note 2.

[^59]: United States v. Rogers, 17 M.J. 990 (A.C.M.R. 1984), pet.
    denied, 19 M.J. 110 (C.M.A. 1984).

[^60]: Mil. R. Evid. 609(c)(2), *supra* note 2.

[^61]: Mil. R. Evid. 609(d), *supra* note 2.

[^62]: *Id*.

[^63]: United States v. Miller, NMCMA 91 00783, 1995 CCA LEXIS 426
    (N.M.C.C.A. Sept. 15, 1995); *see also*, Davis v. Alaska, 415 U.S.
    308 (1974).

[^64]: *See* United States v. Rojas, 15 M.J. 902 (N.M.C.M.R. 1983),
    *aff'd* 20 M.J. 330 (C.M.A. 1985); *accord* United States v.
    Robinson, 8 F.3d 398 (7^th^ Cir. 1993).

[^65]: *Rojas*, 15 M.J. at 908-9.

[^66]: United States v. Ledford, Nos. 96-5659/96-6589, 1997 U.S. App.
    LEXIS 29167, at \*10 (6^th^ Cir. Tenn. Oct. 22, 1997).

[^67]: United States v. Barnes, 33 M.J. 468 (C.M.A. 1992).

[^68]: *Id* at 473*.*

[^69]: *Id.*

[^70]: Mil. R. Evid. 608(b), *supra* note 2.

[^71]: United States v. Robertson, 39 M.J. 211 (C.M.A. 1994).

[^72]: *Id*. at 214. *See also* United States v. Weaver, 1 M.J. 111
    (C.M.A. 1975); United States v. Owens, 21 M.J. 117 (C.M.A. 1985)
    (providing a good example of 608(b) questioning); United States v.
    Page, 808 F.2d 723 (10^th^ Cir 1987); United States v. Leake, 642
    F.2d 715 (4^th^ Cir. 1981). In *United States v. Feagans*, 15 M.J.
    667 (A.F.C.M.R. 1983), the accused testified under oath during
    sentencing. On direct he was asked if he had ever been arrested or
    been in jail, to which he replied, "No, I've never even had a
    traffic ticket prior to this." *Id.* at 668. The prosecution was
    permitted to question the accused about his falsification of a drug
    abuse certificate prior to entry on active duty. "When the accused
    testified under oath, he placed his credibility in issue, and the
    fact that he lied on an officer candidate certificate was a proper
    matter for impeachment. Specific instances of conduct of a witness,
    including the accused, may be inquired into in cross-examination for
    the purpose of attacking the credibility of the witness if the
    conduct is probative of untruthfulness." *Id.* *See also* United
    States v. Boone, 17 M.J. 567 (A.F.C.M.R. 1983): In that case the Air
    Force Court of Military Review held that the trial judge should have
    permitted cross-examination of a witness by questioning him about a
    false denial of preservice drug use. "\[A\] military judge's
    decision as to whether to allow cross-examination into specific acts
    of misconduct is a discretionary matters. However, when such a
    specific act of misconduct is, in and of itself, directly probative
    of the witness' truthfulness, a military judge must allow it
    because, by definition, it is always relevant to the issue of that
    witness' credibility." *Id.* at 569. *See also* United States v.
    Mergucz, NMCM 96 00191, 1997 CCA LEXIS 415 (N.M.C.C.A. July 7,
    1997); United States v. Dennis, 625 F.2d 782 (8^th^ Cir. 1980).

[^73]: *Robertson*, 39 M.J. at 215.

[^74]: *Id*. A rap sheet might furnish a good faith belief that the
    conduct occurred "if it details the underlying facts of the arrest .
    . . . A prosecutor who is not using a detailed rap sheet or is not
    acting in good faith can be called to the witness stand at an
    Article 39(a) session to furnish the basis for his information."
    *Id*. at 214.

[^75]: United States v. Hamilton, ACM 31768, 1996 CCA LEXIS 243 at
    \*4-5. "An accused who testifies opens the door to his or her
    character for truthfulness . . . . Additionally, counsel may attack
    or support the credibility of a witness by inquiring into specific
    instances of conduct on cross-examination. Normally, counsel is
    bound by the witness's answer and may not introduce extrinsic
    evidence to prove the conduct." *Id*. at \*7.

[^76]: *But see* discussion of impeachment by contradiction, *infra*,
    section E.

[^77]: United States v. Trimper, 28 M.J. 460 (C.M.A. 1989).

[^78]: *Id*. at 462.

[^79]: *Id.* at 467.

[^80]: *See* U.S. v. Pruitt, 43 M.J. 864 (A.F.Ct.Crim.App. 1996)
    (concerning the theory of specific contradiction). "\[C\]ounsel may
    introduce extrinsic evidence to contradict the witness who denies
    committing certain misconduct on direct examination or gratuitously
    volunteers information in response to a narrow cross-examination."
    United States v. Hamilton, ACM 31768, 1996 CCA LEXIS 243 at \*7;
    "The theory of 'specific contradiction' is a method separate from
    impeachment by instances of misconduct under Mil.R.Evid. 608(b). It
    is a common-law theory recognized by this Court and many
    commentators." United States v. Welker, 44 M.J. 85, 89 (citations
    omitted) (C.A.A.F. 1996); "\[I\]n showing such contradiction either
    on a material issue or a collateral matter asserted on
    direct-examination, Fed. R. Evid 608(b) does not bar the use of
    extrinsic evidence of specific acts of a witness' conduct." United
    States v. Banker, 15 M.J. 207, 211 (citations omitted) (C.M.A.
    1983); United States v. Ramos, 47 M.J. 474 (1998). *See also* United
    States v. Diaz, 39 M.J. 1114 (A.F.C.M.R. 1994) (explaining for the
    interplay of the right of impeachment with Mil.R.Evid. 412, which
    restricts admission of the past sexual behavior of a rape victim);
    United States v. Castillo, 29 M.J. 145 (C.M.A. 1989). *See* Section
    E *infra* for an in-depth discussion of this type of impeachment.

[^81]: U.S. v. Button, 34 M.J. 139 (C.M.A. 1992).

[^82]: *Id*. at 140.

[^83]: *Id*., (quoting United States v. Soundingsides, 820 F.2d 1232
    (10th Cir. 1987)). "In adopting this interpretation of Mil.R.Evid.
    613(b), we have considered that the 'prevailing view' and 'the more
    expedient practice' is to disallow extrinsic evidence of a prior
    inconsistent statement if the witness admits making the statement."
    *Button*, 34 M.J. at 140.

[^84]: Mil. R. Evid. 801(d)(1), *supra* note 2.

[^85]: *Id.*

[^86]: United States v. Ureta, 44 M.J. 290 (1995). *See also* United
    States v. Kelly, 45 M.J. 275 (1996).

[^87]: In *Ureta* the court stated: "\[W\]e hold that the Article 32
    transcript could 'not be admitted for impeachment' under Mil.R.Evid.
    613(b) but was admissible as substantive evidence in its own right
    under Mil.R.Evid. 801(d)(1)(A). Under the circumstances, it was
    proper for trial counsel to use Mrs. Ureta to lay the foundation for
    admission of her Article 32 testimony and for the military judge to
    admit the transcript as substantive evidence." *Ureta*, 44 M.J. at
    299. Extrinsic evidence is generally not admissible when the witness
    admits making the inconsistent statement. However, when the
    admission is "grudging" or otherwise fails to convey the extent of
    the inconsistency the extrinsic evidence may be admitted. In a
    situation such as this the "interests of justice" may be said to
    require admission of the extrinsic evidence. United States v.
    Gibson, 39 M.J. 319 (C.M.A. 1994); "When a witness denies making a
    prior inconsistent statement, the opponent may call another witness
    to introduce extrinsic evidence through testimony or a document of
    the prior statement, that is, the denial may be disproved by a third
    party." United States v. Taylor, 44 M.J. 475, 479 (1996). *See also*
    United States v. Jones, ACM 31646, 1996 CCA LEXIS 232, (A.F.C.C.A.
    July 29, 1996) (concerning the extent impeachment is within the
    discretion of the trial judge); United States v. Mings, ACM 31047,
    1997 CCA LEXIS 78 (A.F.C.C.A. Feb. 20, 1997) (recognizing that the
    trial judge will be held to an abuse of discretion standard in
    ruling on impeachment matters); Fletcher v. Weir, 455 U.S. 603
    (1983) (concerning prior inconsistent acts). Prior inconsistent acts
    often involve silence in the face of questioning. When the accused
    has a right not to answer questions due to Miranda/Article 31, UCMJ,
    warnings, silence will not be held against him. *See* Doyle v. Ohio,
    426 U.S. 610 (1976) (regarding cross-examination as to post-warnings
    silence).

[^88]: [Stephen A. SALTZBURG, et al.,]{.smallcaps} *supra* note 16, at
    761 (1991).

    > These statements must have been given under oath and subject to
    > the penalty of perjury "at a trial, hearing, or other proceeding,
    > or in a deposition." There is no requirement that there has been
    > an opportunity for prior cross-examination. The oath is an
    > absolute requirement, and the only other requirement is that there
    > has been some kind of formal proceeding. Apparently, the formal
    > proceeding guarantees an accurate record and suggests to the
    > person who makes the statement the importance of telling the truth
    > and thus adds to the oath requirement a guarantee of
    > trustworthiness.

    Although outside the scope of this article we suggest the following
    as an example of a proper foundation for admission of prior
    testimony in a child molestation case:

    > Q: Mr. Smith, what is your job?
    >
    > A: I am the court reporter here in the base legal office.
    >
    > Q: On 26 March 1998 did you have an opportunity to transcribe
    > testimony in the Article 32 investigation of this case?
    >
    > A: Yes, I did.
    >
    > Q: And the witness, Mr. Jones, testified at that hearing?
    >
    > A: Yes, he did.
    >
    > Q: Was he under oath?
    >
    > A: Yes.
    >
    > Q: I am now showing you a five page document. Can you identify it?
    >
    > A: This is a transcript of Mr. Wilson's testimony at the Article
    > 32 investigation.
    >
    > Q: Who prepared this transcript?
    >
    > A: I prepared it from my stenographic notes which I took during
    > the hearing.
    >
    > Q: Is this transcription an accurate presentation of the testimony
    > which Mr. Wilson gave at the hearing?
    >
    > A: Yes, it is.

    Although the court reporter is clearly competent to present evidence
    of the prior testimony, the investigating officer could also be
    called or the prior testimony introduced through the witness
    himself. Sworn statements adopted by the witness as part of his
    testimony should also be admissible, though statements made to law
    enforcement personnel standing alone are not. United States v.
    Connor, 27 M.J. 378 (C.M.A. 1989); United States v. Powell, 17 M.J.
    975 (A.F.C.M.R. 1984); United States v. Luke, 13 M.J. 958
    (A.F.C.M.R. 1981); [Stephen A. SALTZBURG, et al.,]{.smallcaps}
    *supra* note 16, at 761, n.2. *But see*, United States v. Austin, 35
    M.J. 41 (C.M.A. 1992) (holding that verbatim transcripts of Article
    32 testimony should not be presented to the jury in deliberations).

[^89]: United States v. Sojfer, 47 M.J. 425 (1998).

[^90]: In *United States v. Moulton,* 47 M.J. 227 (1997), the Court of
    Appeals for the Armed Forces found that the military judge did not
    abuse his discretion in precluding questioning into the victim's
    past sexual behavior under Mil. R. Evid. 412. However, in *dicta*
    the court noted:

    > We note, however, that a different result might well have obtained
    > if defense counsel had pursued the matter at trial. The
    > prosecution opened the door to this area of inquiry by raising the
    > issue of the victim's relationships with other men. Implicit in
    > the opinion of the court below is recognition that the defense
    > might have articulated a theory of admissibility under one of the
    > exceptions in Mil. R. Evid 412. *It is possible that defense
    > counsel might have developed a plausible theory of admissibility
    > based upon impeachment by contradiction, if supported by proffered
    > evidence of expected testimony relevant to that theory.*

    *Moulton*, 47 M.J. at 228-9 (emphasis added.) Although the Court of
    Appeals went on to find the defense counsel was effective, clearly
    the defense counsel missed the boat by not pursuing admission of
    impeachment evidence under all available theories.

[^91]: *See* United States v. Lyon, 15 U.S.C.M.A. 307, 35 C.M.R. 279
    (1965); United States v. Banker, 15 M.J. 207 (C.M.A. 1983).

[^92]: *Banker*, 16 M.J. at 210.

[^93]: United States v. Cudlitz, 72 F.3d 992 (1st Cir. 1996).

[^94]: *See* Boggs v. Brigano, No. 94-4000, 1996 U.S. App. LEXIS 12151
    (6th Cir. Ohio Apr. 4, 1996). In *Boggs*, the court described
    "appropriate impeachment by contradiction" as including "testimony
    by another witness that (if credited) rebuts or undercuts or limits,
    or raises doubt about...the testimony of another witness...even
    though it amounts to 'extrinsic evidence.'" *Id.* at \*31 (quoting
    [Christopher B. Muller & Laird C. Kirkpatrick,
    Evidence]{.smallcaps}, § 6.58 (1995)).

[^95]: United States v. Sojfer, 47 M.J. 425 (1998). *See also* United
    States v. Perez-Perez, 72 F.3d 224, 227 (1^st^ Cir. 1995)
    (discussing the legal basis of impeachment by contradiction).

[^96]: Mil. R. Evid. 402, *supra* note 2.

[^97]: Mil. R. Evid. 401, *supra* note 2.

[^98]: MCM, *supra* note 2, pg. A22-44.

[^99]: *See, e.g.,* United States v. Grover, No. 95-5096, 1996 U.S.App.
    LEXIS 10327 (4^th^ Cir. Md. May 6, 1996).

[^100]: United States v. Higa, 55 F.3d 448 (9^th^ Cir. 1995); United
    States v. Scott, 74 F.3d 175 (9^th^ Cir. 1996).

[^101]: United States v. Garcia-Garcia, 25 M.J. 652 (A.F.C.M.R. 1987)
    *pet. denied* 26 M.J. 85 (C.M.A. 1988).

[^102]: *Garcia-Garcia*, 25 M.J. at 653.

[^103]: United States v. Crumley, 22 M.J. 877 (A.C.M.R. 1986).

[^104]: *Id.* at 878 (footnote omitted).

[^105]: *See* *Sojfer*, 47 M.J. 427 (distinguishing the two methods of
    impeachment).

[^106]: Simmons, Inc. v. Pinkertons, Inc., 762 F.2d 591, 604 (7^th^ Cir.
    1985).

[^107]: *See* Section C, *supra*. It is also important to remember that
    Rule 608(b) is not an exclusionary rule. *See* *Cudlitz*, 72 F.2d at
    966.

[^108]: *Perez-Perez*, 72 F.3d at 227.

[^109]: Boggs v. Brigano, 1996 U.S. App. LEXIS 12151 at \*31 (6^th^ Cir.
    Ohio Apr. 4 1996). In *Boggs*, the appellant challenged his rape
    conviction by arguing the he was denied his Sixth Amendment right to
    confrontation because the trial court refused to allow either
    cross-examination about, or admission of extrinsic evidence of, the
    victim's prior false allegations of rape. The Sixth Circuit Court of
    Appeals reversed and remanded to the district court on another
    issue. However, in a separate opinion, Judge Rosen explained the
    difference between the two methods of impeachment:

    > More importantly, if the witness denies \[during
    > cross-examination\] having previously made false accusations of
    > rape, the defendant is not precluded by Rule 608(b)'s "take the
    > answer" doctrine from presenting "extrinsic evidence" showing
    > otherwise. Rule 608(b) addresses only one means of impeachment:
    > impeaching a witness' credibility by showing an untruthful
    > disposition. The rule does not regulate impeachment by
    > contradiction, and the reference in the rule to "extrinsic
    > evidence" does not apply to contradictory counterproof directed to
    > a material issue.

[^110]: *Id.* at \*30-1.

[^111]: U.S. v. Banker, 15 M.J. 207, 210 (C.M.A. 1983).

[^112]: *Id.* at 212 n.2.

[^113]: Mil. R. Evid. 608(a) and (b), *supra* note 2.

[^114]: Mil. R. Evid. 613, *supra* note 2.

[^115]: Mil. R. Evid. 608(c), *supra* note 2.

[^116]: Banker, 15 M.J. at 210*.*

[^117]: *Id.*

[^118]: *Id.* at 211 (citations omitted).

[^119]: *Sojfer*, 47 M.J. at 427. "The theory of 'specific
    contradiction' is a method separate from impeachment by instances of
    misconduct under Mil. R. Evid. 608(b). It is a common-law theory
    recognized by this Court and many commentators." United States v.
    Welker, 44 M.J. 85, 89 (1996). *See also* United States v. Toro, 37
    M.J. 313 (C.M.A. 1993); United States v. Williams, 23 M.J. 362
    (C.M.A. 1987).

[^120]: United States v. Jones, ACM 31646 (A.F.Ct.Crim.App. July 29,
    1996). *See also* United States v. Tyler, 26 M.J. 680 (A.F.C.M.R.
    1988); The Seventh Circuit Court defines the rule as "the collateral
    evidence rule \[and it\] limits the extent to which the witness'
    testimony about non-essential matters may be contradicted by
    extrinsic proof." *Simmons*, 762 F.2d at 604.

[^121]: *Higa*, 55 F.3d at 452.

[^122]: United States v. Kozinski, 16 F.3d 795, 806 (7^th^ Cir. 1994);
    *accord* United States v. Payne, 102 F.3d 289, 294 (7^th^ Cir.
    1996).

[^123]: *Boggs*, 1996 U.S. App. LEXIS 12151, at \*30.

[^124]: *Kozinski*, 16 F.3d at 806. In *Perez-Perez,* the First Circuit
    Court of Appeals called the measure one of "efficiency," allowing
    admission of extrinsic evidence only when the prior testimony being
    contradicted was itself material to the case. *Perez-Perez*, 72 F.3d
    at 227; *see also Tyler*, 26 M.J. at 681. The *Simmons* court
    explains the collateral evidence rule as "a particular misstatement
    may or may not be probative of the witness' general accuracy,
    depending on the circumstances, and thus may or may not be worth the
    time it takes to establish it." *Simmons*, 762 F.2d at 604.

[^125]: Taylor v. Natural Railroad Passenger Corp., 920 F.2d 1372, 1375
    n. 3 (7^th^ Cir. 1990). Impeachment by contradiction is not limited,
    however, to impeachment of an accused. Witnesses may also open the
    door to impeachment by contradiction on a material matter. *See*
    United States v. Benson \_\_ M.J. \_\_, 1998 CCA LEXIS 226 (A.F.Ct.
    Crim. App. May 29, 1998).

[^126]: Note, however, that even some facts elicited on direct may have
    so little bearing on the issues to be decided in the case that they
    should be considered collateral. For example, assuming the color of
    a particular car was not directly relevant to any substantive issue
    in the case and the parties had stipulated that the car was red. It
    would not be worthless and a waste of judicial resources to have a
    "mini-trial" on the issue of the car's color simply to prove that a
    witness mistakenly believed the car was blue. *See, e.g.,*
    *Simmons*, 762 F.2d at 604. Nevertheless, it may be possible to
    impeach the witness by showing that her perception was faulty as to
    the car and thus may be faulty as to other, more relevant, facts.
    For a discussion on impeachment by showing deficiencies in the
    elements of competency, *see* Section III B, *infra*.

[^127]: United States v. Cuadrado, 413 F.2d 633, 635 (2^nd^ Cir. 1969)
    (quoting United States v. Beno, 324 F.2d 582, 588 (2^nd^ Cir. 1963),
    *cert. denied* 387 U.S. 880 (1964)).

[^128]: *Beno*, 324 F.2d at 588.

[^129]: United States v. McClintic, 570 F.2d 685, 691 (8^th^ Cir. 1978).
    The court also held admission of the prior misconduct was
    appropriate under Rule 608(b).

[^130]: *Simmons*, 762 F.2d at 604.

[^131]: *Benson*, 1998 CCA LEXIS at 226.

[^132]: *Id.*

[^133]: *Id*.

[^134]: *Id.*

[^135]: *Id*.

[^136]: *Id. See also* United States v. Shaner, 46 M.J. 849 (N.M.Ct.
    Crim. App. 1997). In *Shaner*, the Navy-Marine Corps Court of
    Criminal Appeals held the entire tenor of the male accused's case
    was based on the fact that he was a sexually inactive heterosexual
    and had not been physically intimate with the teenaged victim. The
    court held the admission of evidence during the prosecution's
    case-in-chief that a witness had observed the male teenager and the
    accused hugging, kissing and fondling each other while partially
    clothed was admissible. They described the evidence as "powerful
    impeachment-by-contradiction evidence". *Shaner*, 46 M.J. at 852.

[^137]: *Simmons*, 762 F.2d at 604; United States v. Rovestuso, 768 F.2d
    809, 818-19 (7^th^ Cir. 1985).

[^138]: *Taylor v. National Railroad Passenger Corporation*, 920 F.2d at
    1375.

[^139]: United States v. Banker, 15 M.J. 207, 211(C.M.A. 1983);
    *Shaner*, 46 M.J. at 852.

[^140]: United States v. Pruitt, 43 M.J. 864 (A.F.Ct.Crim.App. 1996).
    *See also Cudlitz*, 72 F.3d 992 (1st Cir. 1996), where the
    prosecutor's cross-examination went "marginally beyond" the scope of
    direct but the court still held the contradictory impeachment was
    proper because "\[t\]he government may have sharpened the edge
    slightly but Cudlitz himself proffered the weapon" by his denials in
    direct. *Cudlitz*, at 996.

[^141]: United States v. Trimper, 28 M.J. 460 (C.M.A. 1989).

[^142]: United States v. Bowling, 16 M.J. 848 (N.M.C.M.R. 1983) (citing
    United States v. Beno, 324 F.2d. 582 (2d. Cir. 1963), cert. denied
    379 U.S. 880 (1964)).

[^143]: *Bowling*, 16 M.J. at 853 (quoting United States v. Pantone, 609
    F.2d 675, 683 (3^rd^ Cir. 1978) (citations omitted).

[^144]: *Trimper*, 28 M.J. at 462.

[^145]: Walder v. United States, 347 U.S. 62 (1954).

[^146]: *Trimper*, 28 M.J. at 466-7.

[^147]: *Id*, at 467*.*

[^148]: *See* United States v. Stroh, 46 M.J. 643 (A.F.Ct.Crim.App.
    1997), United States v. Bowling, 16 M.J. 848 (N.M.C.M.R. 1983);
    United States v. Garcia-Garcia, 25 M.J. 652 (A.F.C.M.R. 1987);
    United States v. Crumley, 22 M.J. 877 (A.C.M.R. 1986).

[^149]: *See* United States v. Alis, 47 M.J. 817 (A.F.Ct.Crim.App.
    1998).

[^150]: Mil. R. Evid. 608(c), *supra* note 2.

[^151]: *See* United States v. George, 40 M.J. 540 (A.C.M.R. 1994).

[^152]: *See* United States v. Bins, 43 M.J. 79 (1995). In that case,
    the defense attempted to present evidence that the U.S. government
    provided a prosecution witness with "substantial financial support,
    including money, lodging, meals, travel, and employment
    opportunities . . . The defense argued that his information tended
    to impeach \[the witness's\] credibility by showing she used the
    attack \[which was the subject of the trial\] as an opportunity to
    obtain money . . . by making and maintaining the allegations against
    \[the accused\]." *Id*. at 83. The Court of Appeals for the Armed
    Forces therefore held that the trial court exclusion of such
    evidence was error. *Id*. at 86.

[^153]: *See* United States v. Everette, 41 M.J. 847 (A.F.C.M.R. 1994).
    "\[T\]he exposure of a witness' motivation in testifying is a proper
    and important function of the constitutionally protected right of
    cross examination under the sixth amendment . . . . Seeking
    counseling for marital difficulties is not much of a motive to
    engage in an extramarital sexual liaison and then misrepresent it as
    rape. Engaging in consensual sex with another because of the
    infidelity of her spouse, and claiming the sex was nonconsensual for
    fear that her physically abusive spouse would discover her
    infidelity, would present a much stronger motive." *Id*. at 850.

[^154]: United States v. Welker, 44 M.J. 85 (1996). "When called as a
    defense witness on direct examination, \[the prosecutrix\] testified
    that she did not want her father 'to go to jail,' but rather 'to
    stay' with the family. It was appropriate cross-examination to
    impeach her by showing that she had been threatened by her mother."
    *Id*. at 89. *See also* United States v. Brown, 41 M.J. 1 (C.M.A.
    1994) (concerning demonstrating bias through religious affiliation).

[^155]: *See* *George*, 40 M.J. at 542. "Exclusion of cross-examination
    evidence can have constitutional as well as evidentiary
    implications. The Sixth Amendment to the Constitution guarantees the
    right of an accused in a criminal prosecution 'to be confronted with
    the witnesses against him.'...While the military judge has broad
    discretion to preclude repetitive and unduly harassing
    interrogation, the cross-examiner is allowed to impeach and
    discredit the witness." *See also* *Everette*, 41 M.J. at 850.

[^156]: United States v. Abel, 469 U.S. 45, 52 (1984). "Bias is a term
    used in the 'common law of evidence' to describe the relationship
    between a party and a witness which might lead the witness to slant,
    unconsciously or otherwise, his testimony in favor of or against a
    party." *Id.*

[^157]: United States v. Bahr, 33 M.J. 228 (C.M.A. 1991).

[^158]: *Id*. at 230.

[^159]: *Id.*

[^160]: *Id*.

[^161]: *Id*. at 233.

[^162]: *Id*.

    > \[T\]hese diary questions were asked to show a motive on the
    > prosecutrix' part for falsely testifying against appellant. *See*
    > Mil. R. Evid. 608(c). There is no extrinsic-evidence limitation on
    > evidence offered for this purpose. This evidence was not offered
    > as inconsistent statements by this witness (Mil. R. Evid. 613(b))
    > or to show lack of truthfulness by reason of prior falsehoods.
    > *See* Mil. R. Evid. 608(b). As a result, the defense was not
    > required to accept the prosecutrix' denial of her hatred for her
    > mother, and circumstantial evidence of such a state of mind
    > towards her mother could be adduced by the defense either on
    > cross-examination of the prosecutrix or by admission of the diary
    > entries themselves.

    *Id*. at 233. *See also* United States v. Gonzales, 16 M.J. 423, 425
    (C.M.A. 1983) ("While extrinsic evidence of a specific instance of
    conduct is inadmissible to attack credibility . . . such evidence
    may be received to show '\[b\]ias, prejudice, or any motive to
    misrepresent."); United States v. Gee, 39 M.J. 311 (C.M.A. 1994);
    United States v. Ra*y*, 731 F.2d 1361 (9^th^ Cir. 1983).

[^163]: *See* United States v. Boone, 17 M.J. 567 (A.F.C.M.R. 1983);
    United States v. Schnitzer, 44 M.J. 380 (C.A.A.F. 1996).

[^164]: United States v. Sojfer, 47 M.J. 425 (1998).

[^165]: *Id.* at 428.

[^166]: *Id.*

[^167]: *Id.*

[^168]: *Id.*

[^169]: United States v. Smith, 77 F.3d 511 (D.C. App. 1996); United
    States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).

[^170]: Henderson v. Detella, 97 F.3d 942 (7^th^ Cir. 1996). *See also*
    United States v. Fisher, 24 M.J. 358, 361 n. 1 (C.M.A. 1987)
    (refusing to consider the extent to which a witness's use of
    marijuana relates to the witness's ability to perceive, but
    distinguishing extrinsic evidence used to impeach by showing
    problems with perception from extrinsic evidence used to impeach by
    attacking truthfulness).

[^171]: *Henderson*, 97 F.3d at 949.

[^172]: *See* United States v. Jones, 26 M.J. 197 (C.M.A. 1988).

[^173]: *Henderson*, 97 F.3d at 949.

[^174]: *Sojfer*, 47 M.J. at 428.

[^175]: United States v. Lindstrom, 698 F.2d 1154, 1160 (11^th^ Cir.
    1983).

[^176]: *Id*. (quoting Michael Juviler, *Psychiatric Opinions as to
    Credibility of Witnesses: A Suggested Approach*, 48 Cal.L.Rev. 648
    (1960)).

[^177]: *Lindstrom*, 698 F.2d at 1160.

[^178]: United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).

[^179]: *Sojfer*, 47 M.J. at 428.

[^180]: United States v. Phelps, 733 F.2d 1464 (11^th^ Cir. 1984).

[^181]: United States v. Butt, 955 F.2d 77 (1^st^ Cir. 1992).

[^182]: *Id.* at 82-83 (footnote omitted).

[^183]: United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996).

[^184]: Factors such as the nature of the mental disease or defect, or
    the severity of the mental condition will certainly have an impact
    on the relevance of evidence offered to impeach a witness. Other
    factors are the time lapse since treatment for a condition and
    whether a mental condition was formally diagnosed. *See* Chnapkova
    v. Koh, 985 F.2d 79 (2^nd^ Cir. 1993) (holding psychiatric treatment
    which ocurred five years prior to testimony was relevant); *Phelps*,
    733 F.2d at 1471 (holding psychiatric treatment 14 years prior to
    testimony was not relevant); *Butt*, 955 F.2d at 82 (citing lack of
    precedent supporting idea that an informal diagnosis is relevant for
    impeachment).

[^185]: *Lindstrom*, 698 F.2d at 1162 n.4 (quoting United States v.
    Martino, 648 F.2d 367, 384 (5^th^ Cir. 1981), *cert. denied*, 456
    U.S. 943 (1982)).

[^186]: United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950).

[^187]: [U.S. Constitution, Amend VI.]{.smallcaps}

[^188]: Davis v. Alaska, 415 U.S. 308, 315 (1974).

[^189]: *Id*. at 316.

[^190]: *Id*.

[^191]: Michelson v. United States, 335 U.S. 469, 486 (1948).

[^192]: *Lindstrom*, at 1160.