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Tim Bilecki

Cross Examination in a Military Court Case

In United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009), the issue before the Supreme Court was whether the military judge’s decision preventing the defense from cross-examining witnesses or presenting any extrinsic evidence about a homosexual romantic or sexual relationship between the accused and a government witness violated the accused’s Sixth Amendment right to question witnesses.

The Court held that the judge’s limitation on cross-examination and associated bias evidence was a violation of the accused’s Sixth Amendment confrontation right. The error was not harmless beyond a reasonable doubt.

The exposure of a witness’ motivation for testifying is a proper and important function of the constitutionally protected right of cross-examination”. Restricting the accused’s presentation of bias evidence may be a violation of the right of confrontation. Even though the Court accepted that judges have wide discretion to impose reasonable restrictions on cross-examination, the court gave the judge’s ruling “less deference” because in his decision the judge merely recited the government’s arguments and there were no findings of fact.

The Court also explained that, in the context of M.R.E. 403, “unfair prejudice” means the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Simply put, the prejudice must be to the integrity of the trial, not a particular witness.

The Court ruled that the military’s policy concerning homosexuality was not a “per se indication of unfair prejudice within the military justice system.”

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