CAAF decided the Army case of United States v. Piren, 74 M.J. 24, No. 14-0453/AR (CAAFlog case page) (link to slip op.), on Thursday, January 15, 2015. The court finds that the military judge did not abuse her discretion when she overruled the Defense objection to the scope of the Government’s cross-examination of Appellant, or when she denied the Defense motion to suppress the results of a DNA analysis, affirming the decision of the Army CCA and Appellant’s conviction.

Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.

II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact in violation of Article 120. He was acquitted of a specification of aggravated sexual assault in connection with the same incident. He was sentenced to confinement for 12 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed without issuing a written opinion.

After the sexual assault allegation was made against Appellant, Appellant made statements to a sexual assault nurse examiner named Lieutenant Colonel (LTC) Alumbaugh who did not advise him of his right to remain silent. Appellant also consented to a forensic sexual assault examination that included taking samples for DNA analysis. The Government did not oppose a defense motion to suppress the un-warned statements to LTC Alumbaugh, but it did oppose a defense motion to suppress the results of the DNA analysis. The military judge suppressed the statements but admitted the DNA results. However, despite the suppression, the statements were still available for the purpose of impeachment by contradiction. See M.R.E. 304(b)(1) (2012), replaced by M.R.E. 304(e)(1) (2013).

Appellant then testified in his own defense, deliberately avoiding any testimony about his statements to LTC Alumbaugh. But on cross-examination the prosecution questioned Appellant about the statements he made to LTC Alumbaugh. The prosecution then recalled LTC Alumbaugh to impeach Appellant’s testimony about those same statements. Specifically, she denied that Appellant told her four thing about the sexual encounter at issue that Appellant testified (on cross-examination) that he did tell her.

Judge Erdmann’s analysis beings by noting that CAAF “reviews a military judge’s admission of the evidence for an abuse of discretion.” Slip op. at 7. This is a highly-deferential standard of review: “The abuse of discretion standard is strict, calling for the challenged action to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Slip op. at 7 (marks and citation omitted). But if a less-deferential standard could have changed the outcome to favor Appellant, Judge Erdmann’s opinion doesn’t show it:

When Piren elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to LTC Alumbaugh was designed to explore that credibility. The government could, therefore, properly test Piren’s credibility on cross-examination.

When Piren subsequently testified on cross-examination as to what he had told LTC Alumbaugh during the sexual assault examination, his credibility remained at issue. This opened his testimony to impeachment by contradiction by having LTC Alumbaugh testify to the contrary. Impeachment by contradiction is a line of attack that “involves showing the tribunal the contrary of a witness’ asserted fact, so as to raise an inference of a general defective trustworthiness” or that the accused is capable of error. United States v. Banker, 15 M.J. 207, 210-11 (C.M.A. 1983) (citations omitted).

Slip op. at 8-9. It’s not called the crucible of cross-examination for nothing.

On the second issue, Judge Erdmann makes quick work of “the six nonexclusive factors set forth in [United States v. Wallace, 66 M.J. 5, 9 (C.A.A.F. 2008] (the Wallace factors) to determine whether the consent was voluntary.” Slip op. at 12. He concludes that Appellant’s consent to the DNA analysis with the forensic sexual assault was voluntary because:

While Piren may have believed that his liberty was restricted to some degree and while he did ask whether he should get an attorney, those factors are not sufficient in this case to invalidate his consent. The remaining Wallace factors support a finding that Piren’s consent was voluntary.

Slip op. at 15.

Appellant’s impeachment by contradiction involved someone else’s memory of what he said. That certainly didn’t help his defense, but I can’t help but think that it was not a particularly significant factor in his conviction. Nevertheless, CAAF’s decision in Piren presents an important case study of the danger inherent in an Accused testifying in his own defense.

Case Links:
ACCA opinion (summary affirmaton)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
CAAF argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: United States v. Piren, No. 14-0453/AR”

  1. stewie says:

    I’m a little uncomfortable with government being able to open the door on cross exam when the defense apparently kept it closed during direct.  Why isn’t it beyond the scope? Particularly if the accused never talked about those statements, and the MJ (and government) agreed to keep them out.

  2. Anon says:

    It would seem the the “real world” teaching point is for defense counsel to anticipate the government questioning the accused on his prior excluded statements under the guise of testing his credibility.  Under such circumstances, it would probably be best for the accused if he no longer remembers what he said previously and declines to have his memory refreshed by the trial counsel.  Failure to remember a statement would not allow the government to introduce the prior statement for impeachment purposes.  I predict many more accused soldiers will have memory issues about their prior statements if they testify in their own defense after this decision.

  3. Zachary D Spilman says:

    Well, Anon, defense counsel have an ethical duty to inform the court if the accused lies on the stand. Further, subornation of perjury is a crime. See MCM, Pt. IV, ¶ 98 (2012). See also 18 U.S.C. § 1622.

  4. Phil Cave says:

    Anon, the accused or a witness can be impeached even if they fail to remember what they said.
    This is a a common occurrence.  From my trial notebook:
     

    Damatta-Olivera, 37 M.J. at 478 and United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005), has noted that an inconsistency, for purposes of M.R.E. 613, may be found “not only in diametrically opposed answers,” but also in “inability to recall,” Damatta-Olivera, 37 M.J. at 478, or equivocation.  Meghdadi, 60 M.J. at 444.
     
    United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (“whether testimony is inconsistent with a prior statement is not limited to diametrically opposed answers but may be found as well in evasive answers, inability to recall, silence, or changes of position”).

  5. stewie says:

    yeah, “you don’t remember now, but you remembered back then when you said…”
     
    I think the real world teaching point is, don’t expect that you can keep the door closed with a judicious direct, so you might as well open the door and lance the boil as best you can if you are going to put the accused on the stand.

  6. Zachary D Spilman says:

    Objection stewie. Argumentative.

    Phil Cave makes a really good point about prior inconsistent statements. See also United States v. Harrow, 65 M.J. 190, 199 (C.A.A.F. 2007). But I think the impeachment in this case would have been far less effective (not that I think it was particularly effective to begin with) had Appellant’s testimony been something like: “Sorry Sir, but I don’t remember exactly what I said to the Doc. I was really scared, what with this false allegation and all.”

  7. stewie says:

    Ummm, I was agreeing with him and giving an example?
     
    Objection overruled.

  8. Phil Cave says:

    And I would agree with the second part of Stewie’s comment.
     
    Once you’ve done your value added analysis, you have to consider that his prior statements – if any – will be used against him in some way.
     
    I’m curious though on this point.  There is case law that the government may not ask questions for opening the door to objectionable testimony or evidence.  Isn’t that sort of what they did here?  Not sure if I’m right on this.  From my trial notebook:
     

    Prosecution can’t cross-examine or introduce evidence itself merely to create issue which the prosecution then wants to rebut with otherwise inadmissible evidence.  See generally United States v. Diaz, (C.A.A.F. 2003); United States v. Graham, 50 M.J. 56 (C.A.A.F. 1999).  But see, United States v. Ureta, 44 M.J. 290.

     

  9. Anonymous says:

    Phil,
    I’m not sure that’s what happened here (ie. the government opening the door to objectionable testimony).  If the accused made statements about the assault, but didn’t mention the facts he testified to on direct (ie. that she kissed him, masturbated him, etc), then that opens him to cross examination on that point by the trial counsel as inconsistent statements.

  10. stewie says:

    Phil that’s my concern as well. I don’t think merely testifying opens the door. You have to testify in some way that opens the door. I don’t know if that’s what happened here, maybe it is. You CAN do it without directly mentioning the facts I suppose, but I don’t think simply making statements about the assault means he’s open to cross exam about those statements unless he actually talks about the relevant part of the assault.  There has to be some link/key that opens the door.  Again, maybe that happened here, I don’t know.

  11. Phil Cave says:

    Well, as I just told an MJ this week, I’d sooner object and be wrong, than not object and later find out that I waived off a perfectly good issue that some poor appellate defense counsel now has to struggle to justify as plain error.
     
    And yes, objections are often oriented and intensive.  I have certainly seen some MJ’s who rule that once the accused testifies the gov. may ask any question they like regardless of the initial direct.  But I’ve seen it go the other way.