2008 edition - Fort Sam Houston - U.S. Army

607. Depending upon the circumstances of the case, a refusal to
strike the testimony of a Government witness who refuses to
answer defense questions calculated to impeach the credibility of
the witness may constitute prejudicial limitation of the accused’s
right to cross-examine the witness.
(3) Pretrial. Rule 301(f)(3) is taken generally from Para. 140 a
(4), MCM, 1969 (Rev.) and follows the decisions of the United
States Supreme Court in United States v. Hale, 422 U.S. 171
(1975) and Doyle v. Ohio, 426 U.S. 610 (1976). See also United
States v. Brooks, 12 U.S.C.M.A. 423, 31 C.M.R. 9 (1961); United
States v. McBride, 50 C.M.R. 126 (A.F.C.M.R. 1975). The prior
Manual provision has been expanded to include a request to
terminate questioning.
( g ) I n s t r u c t i o n s . R u l e 3 0 1 ( g ) h a s n o c o u n t e r p a r t i n t h e 1 9 6 9
Manual. It is designed to address the potential for prejudice that
may occur when an accused exercises his or her right to remain
silent. Traditionally, the court members have been instructed to
disregard the accused’s silence and not to draw any adverse
inference from it. However, counsel for the accused may determine
that this very instruction may emphasize the accused’s silence,
creating a prejudicial effect. Although the Supreme Court
has held that it is not unconstitutional for a judge to instruct a
jury over the objection of the accused to disregard the accused’s
silence, it has also stated: “It may be wise for a trial judge not to
give such a cautionary instruction over a defendant’s objection.”
Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). Rule 301(g)
recognizes that the decision to ask for a cautionary instruction is
one of great tactical importance for the defense and generally
leaves that decision solely within the hands of the defense. Although
the military judge may give the instruction when it is
necessary in the interests of justice, the intent of the Committee is
to leave the decision in the hands of the defense in all but the
most unusual cases. See also Rule 105. The military judge may
determine the content of any instruction that is requested to be
given.
(h) Miscellaneous. The last portion of paragraph 150 b, MCM,
1969 (Rev.), dealing with exclusion of evidence obtained in violation
of due process has been deleted and its content placed in the
new Rules on search and seizure. See e.g., Rule 312, Bodily
Views and Intrusions. The exclusionary rule previously found in
the last rule.subparagraph of Para. 150 b was deleted as being
unnecessary in view of the general exclusionary rule in Rule 304.
Rule 302 Privilege concerning mental
examination of an accused
Introduction. The difficulty giving rise to Rule 302 and its
conforming changes is a natural consequence of the tension between
the right against self-incrimination and the favored position
occupied by the insanity defense. If an accused could place a
defense expert on the stand to testify to his lack of mental responsibility
and yet refuse to cooperate with a Government expert, it
would place the prosecution in a disadvantageous position. The
courts have attempted to balance the competing needs and have
arrived at what is usually, although not always, an adequate
compromise; when an accused has raised a defense of insanity
through expert testimony, the prosecution may compel the accused
to submit to Government psychiatric examination on pain
of being prevented from presenting any defense expert testimony
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 302
( o r o f s t r i k i n g w h a t e x p e r t t e s t i m o n y h a s a l r e a d y p r e s e n t e d ) .
However, at trial the expert may testify only as to his or her
conclusions and their basis and not as to the contents of any
statements made by the accused during the examination. See e.g.,
United States v. Albright, 388 F.2d 719 (4th Cir. 1968); United
States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39 (1969). See
generally, Lederer, Rights Warnings in the Armed Services, 72
M i l . L . R e v . 1 ( 1 9 7 6 ) ; H o l l a d a y , P r e t r i a l M e n t a l E x a m i n a t i o n s
U n d e r M i l i t a r y L a w : A R e - E x a m i n a t i o n , 1 6 A . F . L . R e v . 1 4
(1974). This compromise, which originally was a product of case
law, is based on the premise that raising an insanity defense is an
implied partial waiver of the privilege against self-incrimination
and has since been codified in the Federal Rules of Criminal
Procedure, FED. R. CRIM. P. 12-2, and MCM, 1969 (Rev.). Para.
140 a, 122 b, 150 b. The compromise, however, does not fully
deal with the problem in the military.
In contrast to the civilian accused who is more likely to have
access to a civilian doctor as an expert witness for the defense—a
witness with no governmental status— the military accused normally
must rely upon the military doctors assigned to the local
installation. In the absence of a doctor-patient privilege, anything
said can be expected to enter usual Government medical channels.
Once in those channels there is nothing in the present Manual that
prevents the actual psychiatric report from reaching the prosecution
and release of such information appears to be common in
contemporary practice. As a result, even when the actual communications
made by the accused are not revealed by the expert
witness in open court, under the 1969 Manual they may be studied
by the prosecution and could be used to discover other evidence
later admitted against the accused. This raises significant
derivative evidence problems, cf. United States v. Rivera, 23
U.S.C.M.A. 430, 50 C.M.R. 389 (1975). One military judge’s
attempt to deal with this problem by issuing a protective order
was commended by the Court of Military Appeals in an opinion
that contained a caveat from Judge Duncan that the trial judge
may have exceeded his authority in issuing the order, United
States v. Johnson, 22 U.S.C.M.A. 424, 47 C.M.R. 401 (1973).
Further complicating this picture is the literal language of Article
31(b) which states, in part, that “No person subject to this
chapter may ... request a statement from, an accused or a person
suspected of an offense without first informing him ...” [of his
rights].Accordingly, a psychiatrist who complies with the literal
meaning of Article 31(b) may effectively and inappropriately
destroy the very protections created by Babbidge and related
cases, while hindering the examination itself. At the same time,
the validity of warnings and any consequent “waiver” under such
circumstances is most questionable because Babbidge never considered
the case of an accused forced to choose between a waiver
and a prohibited or limited insanity defense. Also left open by the
present compromise is the question of what circumstances, if any,
will permit a prosecutor to solicit the actual statements made by
the suspect during the mental examination. In United States v.
Frederick, 3 M.J. 230 (C.M.A. 1977), the Court of Military Appeals
held that the defense counsel had opened the door via his
questioning of the witness and thus allowed the prosecution a
broader examination of the expert witness than would otherwise
have been allowed. At present, what constitutes “opening the
door” is unclear. An informed defense counsel must proceed with
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