EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 6, 2014

Your Honor, I'm a Liar: Military Court Finds Defendant Doesn't Have to Claim Confession is False Before He Can Impeach It

Similar to its federal counterpart, Military Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Mil. R. Evid. 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

As the above language makes clear, Rule 806 does not expicitly allow for the impeachment of the declarant of a statement under Rule 801(d)(2)(A), which covers statements of party-opponents. According to the Advisory Committee's Note to Rule 806, however, this is simply because

The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)—the statement by the party-opponent himself or the statement of which he has manifested his adoption—because the credibility of the party-opponent is always subject to an attack on his credibility.

But does a criminal defendant have to claim that a Rule 801(d)(2)(A) confession is false before he can impeach it? That was the question addressed by the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Dougherty, 2013 WL 6858964 (N.M.Ct.Crim.App. 2013), the answer is "no."

In Dougherty, a general court-martial convicted Daniel Dougherty of aggravated sexual assault, abusive sexual contact, wrongful sexual contact, and forcible sodomy. Dougherty therafter appealed, claiming that the military judge erred by precluding him from presenting the expert testimony of Dr. Frumkin, a forensic psychologist specializing in false confessions. Frumkin would have testified about (1) the phenomenon of false confessions in general; and (2) a battery of psychological tests on the accused regarding his vulnerability to police interrogation techniques.

The military judge, however, precluded this testimony because Dougherty did not explicitly claim that his confession was false. The Court of Criminal Appeals

disagree[d] with the military judge's underlying view that an accused must first put on evidence that his confession was actually false before he may challenge the credibility of his confession. We are persuaded instead by the opinion of the United States Court of Appeals for the First Circuit, which held that the credibility of a criminal defendant's confession is always at issue from the moment it is entered into evidence. See United States v. Shay, 57 F.3d 126, 131–32 (1st Cir.1995). The court in Shay was analyzing FEDERAL RULE OF EVIDENCE 806, which is exactly mirrored by MIL. R. EVID. 806....Adopting the reasoning of the First Circuit, and recognizing the legislative history of MIL. R. EVID. 806, we hold that the credibility of an accused's confession is subject to attack once admitted into evidence.



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