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.
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