Rule 608. Bias

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Rule 608. Evidence of character, conduct, and bias of witness
(c) Evidence of bias. 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.

  1. Ulterior motives are never collateral and may be proved extrinsically. The three categories under 608(c) are a representative list, not an exhaustive one.
  2. Rules should be read to allow liberal admission of bias-type evidence. United States v. Hunter, 21 M.J. 240 (C.M.A.), cert. denied, 476 U.S. 1142 (1986). See United States v. Aycock, 39 M.J. 727 (N.M.C.M.R. 1993) (the military judge abused his discretion and committed prejudicial error in excluding extrinsic evidence of a government witness’ bias and motive to testify falsely (anger and
    resentment toward the appellant through loss of $195 wager)). But See United
    States v. Sullivan, 70 M.J. 110 (C.A.A.F. 2011) (requiring a stronger showing
    other than the mere fact that a victim has undergone psychological counseling to
    inquire into a victim’s medical history in order to attack victim’s bias and
  3. Constitutional dimensions:
    1. United States v. Bahr, 33 M.J. 228 (C.M.A. 1991). 14 year-old
      prosecutrix testified concerning sodomy and indecent acts by her
      stepfather. Defense sought to introduce extracts from her diary showing
      a profound dislike of her mother and home life. The military judge ruled
      the extracts were inadmissible, and kept the defense from examining the
      prosecutrix concerning a prior false claim of rape, and alleged advice to
      her friends to turn in their family members for child sexual abuse. These
      rulings were evidentiary and constitutional error. Prosecutrix’s hatred of
      her mother could be motive to hurt mother’s husband.
    2. United States v. Moss, 63 M.J. 233 (2006). Does the exclusion of
      evidence of bias under Rule 608(c) raise issues regarding an accused’s
      Sixth Amendment right to confrontation? Yes. An accused’s right under
      the Sixth Amendment to cross-examine witnesses is violated if the
      military judge precludes an accused from exploring an entire relevant
      area of cross-examination. The military judge erred when he excluded
      evidence that the accused sought in order to challenge the credibility of
      the alleged victim. It is the members’ role to determine whether an
      alleged victim’s testimony is credible or biased. As such, bias evidence,
      if logically and legally relevant, are matters properly presented to the
      The test is to determine whether a limitation on the presentation of
      evidence of bias constitutes a Sixth Amendment violation is “whether
      ‘[a] reasonable jury might have received a significantly different
      impression of [the witness’s] credibility had [defense counsel] been
      permitted to pursue his proposed line of cross-examination.’” United
      States v. Collier, 67 M.J. 347,

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