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Tim Bilecki

Article 120 UCMJ Strategies

If you are facing sexual assaultrape or other Article 120 UCMJ charges, pleading guilty is often never an option. There are countless strategies for dealing with these offense as well as the purported victim (PV). One of those strategies, at is most basic level, is that the PV is a liar. For example, your court martial defense lawyer’s supporting strategy may be that PV is not truthful when he/she claims that:

  • The offense was committed at all,
  • The offense was committed by force (where that is an element),
  • She did not consent raising an affirmative offense, or
  • The accused was the perpetrator.

When your military defense lawyer uses this strategy, he (and you) must understand that fact finders are not likely to accept that a witness would knowingly lie unless the witness had a motive to do so. Even if the defense can’t show the PV lied, a motive to lie certainly shows bias which is part of a witness’ credibility.

A motive to lie is evidence of bias. M.R.E. 608(c) provides “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.” The defense is allowed to present extrinsic evidence of the source of the bias or motive to misrepresent.

In U.S. v. Collier, 67 M.J. 347 (C.A.A.F, 2009) the military judge erred when he ruled that the defense, under M.R.E. 403, could not offer evidence that the accused and a government witness had had a prior homosexual relationship to show motive to misrepresent and bias. The CAAF reversed the decision because the error was not harmless beyond reasonable doubt.

One of the most fundamental questions your court martial defense lawyer must answer to the panel in any trial, especially a sexual assault or rape trial is “Why?” This often requires digging into the PV’s life or simply thinking outside the box. If you are going to trial and don’t have the “Why” answered, you may already be sunk.

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