Representing Guilty Clients: How do defense lawyers sleep at night?
(a) Control by the military judge. The military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The military judge may, in the
exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a
witness except as may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, or a witness identified with an adverse party, interrogation may be by leading questions.
1. This rule is the basic source of the military judge’s authority to control
proceedings at court-martial.
2. Scope of examination.
a) United States v. Stavely, 33 M.J. 92 (1992). When cross-examination
goes to witness credibility, military judge should afford counsel wide
b) United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990). An accused
who chooses to testify on the merits is subject to same cross-examination
as any other witness. Here, TC did not impermissibly comment on right
to counsel when he asked accused if he saw a lawyer before making a
c) Controlling examination to avoid constitutional problems. In United
States v. Mason, 59 M.J. 416 (2004), the CAAF held that it was error to
permit a trial counsel to ask on re-direct whether the accused had ever
requested a re-test of the DNA evidence in his case, because the question
tended to improperly shift the burden of proof in the case to the defense.
d) Alternatives to in-court testimony. The 1995 Amendments to Drafter’s
Analysis provides that “when a witness is unable to testify due to
intimidation by the proceedings, fear of the accused, emotional trauma,
or mental or other infirmity, alternatives to live in-court testimony may