Military Rule of Evidence 608 – Bias

MRE 608 Evidence of 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) is a representative list, not an exhaustive.
  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 the victim’s bias and
    credibility).

Constitutional dimensions:

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. The 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 errors. Prosecutrix’s hatred of
her mother could be a motive to hurt her mother’s husband.

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
members.
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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