(a) General rule of
competency. Every person is competent to be a witness except as otherwise
provided in these rules.
(b) Lack
of personal knowledge. A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but need
not, consist of the testimony of the witness. This subdivision is subject to
the provisions of Mil. R. Evid. 703, relating to opinion testimony by expert
witnesses.
(c) Oath or affirmation.
Before testifying, every witness shall be required to declare that the witness
will testify truthfully, by oath or affirmation administered in a form
calculated to awaken the witness's conscience and impress the witness's mind
with the duty to do so.
(d)
Interpreters. An interpreter is subject to the provisions of these rules
relating to qualifications as an expert and the administration of an oath or
affirmation that the interpreter will make a true translation.
(e) Competency of military judge as witness.
(1) The military judge presiding at the
court-martial may not testify in that court-martial as a witness. No objection
need be made to preserve the point.
(2) This subdivision does not preclude the
military judge from placing on the record matters concerning docketing of the
case.
(f) Competency of
court member as witness.
(1) At the
court-martial. A member of the court-martial may not testify as a witness
before the other members in the trial of the case in which the member is
sitting. If the member is called to testify, the opposing party, except in a
special court-martial without a military judge, shall be afforded an
opportunity to object out of the presence of the members.
(2) Inquiry into validity of findings or
sentence. Upon an inquiry into the validity of the findings or sentence, a
member may not testify as to any matter or statement occurring during the
course of the deliberations of the members of the court-martial or, to the
effect of anything upon the member's or any other member's mind or emotions as
influencing the member to assent to or dissent from the findings or sentence or
concerning the member's mental process in connection therewith, except that a
member may testify on the question whether extraneous prejudicial information
was improperly brought to the attention of the members of the court-martial,
whether any outside influence was improperly brought to bear upon any member,
or whether there was unlawful command influence. Nor may the member's affidavit
or evidence of any statement by the member concerning a matter about which the
member would be precluded from testifying be received for these
purposes.
(g) Who may
impeach. The credibility of a witness may be attacked by any party, including
the party calling the witness.
(h)
Evidence of character, conduct, and bias of witness.
(1) Opinion and reputation evidence of
character. The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these
limitations:
(i) the evidence may refer only
to character for truthfulness or untruthfulness; and
(ii) evidence of truthful character is
admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
(2) Specific instances of conduct. Specific
instances of conduct of a witness, for the purpose of attacking or supporting
the credibility of the witness, other than conviction of crime as provided in
Mil. R. Evid. 609, may not be proved by extrinsic evidence. They may, however,
in the discretion of the military judge, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness:
(i) concerning character of the witness for
truthfulness or untruthfulness; or
(ii) concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
The giving of testimony, whether by an accused or by
another witness, does not operate as a waiver of the privilege against
self-incrimination when examined with respect to matters which relate only to
credibility.
(3)
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.
(i)
Impeachment by evidence of conviction crime.
(1) General rule. For the purpose of
attacking the credibility of a witness, evidence that the witness has been
convicted of a crime shall be admitted if elicited from the witness or
established by public record during cross-examination but only if the crime:
(i) was punishable by death, or imprisonment
in excess of one year under the law under which the witness was convicted, and
the military judge determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused; or
(ii) involved dishonesty or false statement,
regardless of the punishment.
(2) Time limit. Evidence of a conviction
under this subdivision is not admissible if a period of more than 10 years has
elapsed since the date of the conviction or of the release of the witness from
the confinement imposed for that conviction, whichever is the later date,
unless the court determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However, evidence of a
conviction more than 10 years old as calculated herein, is not admissible
unless the proponent gives to the adverse party sufficient advance written
notice of intent to use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
(3) Effect of pardon, annulment, or
certificate of rehabilitation. Evidence of a conviction is not admissible under
this subdivision if:
(i) the conviction has
been the subject of a pardon, annulment, certificate of rehabilitation, or
other equivalent procedure based on a finding of the rehabilitation of the
person convicted, and that person has not been convicted of a subsequent crime
which was punishable by death, dishonorable discharge, or imprisonment in
excess of one year; or
(ii) the
conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(4) Juvenile adjudications. Evidence of
juvenile adjudications is generally not admissible under this subdivision. The
military judge, however, may allow evidence of a juvenile adjudication of a
witness other than the accused if conviction of the offense would be admissible
to attack the credibility of an adult and the military judge is satisfied that
admission in evidence is necessary for a fair determination of the issue of
guilt or innocence.
(5) Pendency of
appeal. The pendency of an appeal therefrom does not render evidence of a
conviction inadmissible. Evidence of the pendency of an appeal is
admissible.
(6) Definition. For
purposes of this subdivision, there is a conviction in a court-martial case
when a sentence has been adjudged.
(j) Religious beliefs or opinions. Evidence
of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature the
credibility of the witness is impaired or enhanced.
(k) Mode and order of interrogation and
presentation.
(1) 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:
(i) make the interrogation and presentation
effective for the ascertainment of the truth;
(ii) avoid needless consumption of time;
and
(iii) protect witnesses from
harassment or undue embarrassment.
(2) 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.
(3) Scope of cross-examination. 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.
(l) Writing used to refresh memory. If a
witness uses a writing to refresh his or her memory for the purpose of
testifying, either:
(1) while testifying;
or
(2) before testifying, if the
military judge determines it is necessary in the interests of justice;
an adverse party is entitled to have the writing produced
at the hearing, to inspect it, to cross-examine the witness thereon, and to
introduce in evidence those portions which relate to the testimony of the
witness. If it is claimed that the writing contains privileged information or
matters not related to the subject matter of the testimony, the military judge
shall examine the writing in camera, excise any privileged information or
portions not so related, and order delivery of the remainder to the party
entitled thereto. Any portion withheld over objections shall be attached to the
record of trial as an appellate exhibit. If a writing is not produced or
delivered pursuant to order under this subdivision, the military judge shall
make any order justice requires, except that when the prosecution elects not to
comply, the order shall be one striking the testimony or, if in discretion of
the military judge it is determined that the interests of justice so required,
declaring a mistrial. This subdivision does not preclude disclosure of
information required to be disclosed under other provisions of these rules or
this Chapter.
(m) Prior statements of witnesses.
(1) Examining witness concerning prior
statement. In examining a witness concerning a prior statement made by the
witness, whether written or not, the statement need not be shown nor its
contents disclosed to him at that time, but on request the same shall be shown
or disclosed to opposing counsel.
(2) Extrinsic evidence of prior inconsistent
statement of witness. Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an opportunity to
interrogate the witness thereon, or the interests of justice otherwise require.
This provision does not apply to admissions of a party-opponent as defined in
Mil. R. Evid. 801(d)(2).
(n) Calling and interrogation of witnesses by
the court-martial.
(1) Calling by the court-
martial. The military judge may, sua sponte, or at the request of the members
or the suggestion of a party, call witnesses, and all parties are entitle to
cross-examine witnesses thus called. When the members wish to call or recall a
witness, the military judge shall determine whether it is appropriate to do so
under these rules or this Chapter.
(2) Interrogation by the court-martial. The
military judge or members may interrogate witnesses, whether called by the
military judge, the members, or a party. Members shall submit their questions
to the military judge in writing so that a ruling may be made on the propriety
of the questions or the course of questioning and so that questions may be
asked on behalf of the court by the military judge in a form acceptable to the
military judge. When a witness who has not testified previously is called by
the military judge or the members, the military judge may conduct the direct
examination or may assign the responsibility to counsel for any
party.
(3) Objections. Objections
to the calling of witnesses by the military judge or the members or to the
interrogation by the military judge or the members may be made at the time or
at the next available opportunity when the members are not present.
(o) Exclusion of witnesses. At the
request of the prosecution or defense the military judge shall order witnesses
excluded so that they cannot hear the testimony of other witnesses, and the
military judge may make the order sua sponte.This subdivision does not
authorize exclusion of:
(1) the accused;
or
(2) a member of an armed service
or an employee of the State designated as representative of the State by the
trial counsel; or
(3) a person
whose presence is shown by a party to be essential to the presentation of the
party's case.