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

with in Rule 412, and evidence of fresh complaint is admissible
to the extent permitted by Rules 801 and 803.
Rule 609 Impeachment by evidence of conviction
of crime
(a) General Rules. Rule 609(a) is taken from the Federal Rule
but has been slightly modified to adopt it to military law. For
example, an offense for which a dishonorable discharge may be
adjudged may be used for impeachment. This continues the rule
as found in Para. 153 b(2)(b)(1) of the 1969 Manual. In determining
whether a military offense may be used for purposes of
impeachment under Rule 609(a)(1), recourse must be made to the
maximum punishment imposable if the offense had been tried by
general court-martial.
Rule 609(a) differs slightly from the prior military rule. Under
Rule 609(a)(1), a civilian conviction’s availability for impeachment
is solely a function of its maximum punishment under “the
law in which the witness was convicted.” This is different from
Para. 153 b (2)(b)(3) of the 1969 Manual which allowed use of a
non-federal conviction analogous to a federal felony or characterized
by the jurisdiction as a felony or “as an offense of comparable
gravity.” Under the new rule, comparisons and determinations
of relative gravity will be unnecessary and improper.
Convictions that “involve moral turpitude or otherwise affect ...
credibility” were admissible for impeachment under Para. 153
b(2)(b) of the 1969 Manual. The list of potential convictions
expressed in Para. 153 b(2)(b) was illustrative only and nonexhaustive.
Unlike the 1969 Manual rule, Rule 609(a) is exhaustive.
Although a conviction technically fits within Rule 609(a)(1), its
admissibility remains subject to finding by the military judge that
its probative value outweighs its prejudicial effect to the accused.
R u l e 6 0 9 ( a ) ( 2 ) m a k e s a d m i s s i b l e c o n v i c t i o n s i n v o l v i n g
“dishonesty or false statement, regardless of punishment.” This is
similar to intent in Para. 153b(2)(b)(4) of the 1969 Manual which
makes admissible “a conviction of any offense involving fraud,
deceit, larceny, wrongful appropriation, or the making of false
statement.” The exact meaning of “dishonesty” within the meaning
of Rule 609 is unclear and has already been the subject of
substantial litigation. The Congressional intent appears, however,
to have been extremely restrictive with “dishonesty” being used
in the sense of untruthfulness. See generally S. Saltzburg & K.
Redden, FEDERAL RULES OF EVIDENCE MANUAL 336–45
(2d ed. 1977). Thus, a conviction for fraud, perjury, or embezzlement
would come within the definition, but a conviction for
simple larceny would not. Pending further case development in
the Article III courts, caution would suggest close adherence to
this highly limited definition.
It should be noted that admissibility of evidence within the
scope of Rule 609(a)(2) is not explicitly subject to the discretion
of the military judge. The application of Rule 403 is unclear.
While the language of Rule 609(a) refers only to cross-examination,
it would appear that the Rule does refer to direct examination
as well. See the Analysis to Rules 607 and 608(b).
As defined in Rule 609(f), a court-martial conviction occurs
when a sentence has been adjudged.
1993 Amendment. The amendment to Mil. R. Evid. 609(a) is
based on the 1990 amendment to Fed. R. Evid. 609(a). The
previous version of Mil. R. Evid. 609(a) was based on the now
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
superseded version of the Federal Rule. This amendment removes
from the rule the limitation that the conviction may only be
elicited during cross-examination. Additionally, the amendment
clarifies the relationship between Rules 403 and 609. The amendment
clarifies that the special balancing test found in Mil. R.
Evid. 609(a)(1) applies to the accused’s convictions. The convictions
of all other witnesses are only subject to the Mil. R. Evid.
403 balancing test. See Green v. Bock Laundry Machine Co., 490
U.S. 504 (1989).
(b) Time limit. Rule 609(b) is taken verbatim from the Federal
Rule. As it has already been made applicable to the armed forces,
United States v. Weaver, 1 M.J. 111 (C.M.A. 1975), it is consistent
with the present military practice.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
Rule 609(c) is taken verbatim from the Federal Rule except that
convictions punishable by dishonorable discharge have been added.
Rule 609(c) has no equivalent in present military practice
and represents a substantial change as it will prohibit use of
convictions due to evidence of rehabilitation. In the absence of a
certificate of rehabilitation, the extent to which the various Armed
Forces post-conviction programs, such as the Air Force’s 3320th
Correction and Rehabilitation Squadron and the Army’s Retraining
Brigade, come within Rule 609(c) is unclear, although it is
probable that successful completion of such a program is “an
equivalent procedure based on the finding of the rehabilitation of
the persons convicted” within the meaning of the Rule.
(d) Juvenile adjudications. Rule 609(d) is taken from the Federal
Rule without significant change. The general prohibition in the
Rule is substantially different from Para. 153b(2)(b) of the 1969
Manual which allowed use of juvenile adjudications other than
those involving an accused. The discretionary authority vested in
the military judge to admit such evidence comports with the
accused’s constitutional right to a fair trial,Davis v. Alaska, 415
U.S. 308 (1974).
(e) Pendency of appeal. The first portion of Rule 609(e) is taken
from the Federal Rule and is substantially different from Para.
153 b(2)(b) of the 1969 Manual which prohibited use of convictions
for impeachment purposes while they were undergoing appellate
review. Under the Rule, the fact of review may be shown
but does not affect admissibility. A different rule applies, however,
for convictions by summary court-martial or by special courtmartial
without a military judge. The Committee believed that
because a legally trained presiding officer is not required in these
proceedings, a conviction should not be used for impeachment
until review has been completed.
February 1986 Amendment: The reference in subsection (e) to
“Article 65(c)” was changed to “Article 64” to correct an error in
MCM, 1984.
(f) Definition. This definition of conviction has been added because
of the unique nature of the court-martial. Because of its
recognition that a conviction cannot result until at least sentencing,
cf. Lederer, Reappraising the Legality of Post-trial Interviews,
The Army Lawyer, July 1977, at 12, the Rule may modify
United States v. Mathews, 6 M.J. 357 (C.M.A. 1979).
Rule 610 Religious beliefs or opinions
App. 22, M.R.E. 610
Rule 610 is taken without significant change from the Federal
Rules and had no equivalent in the 1969 Manual for Courts-
Martial. The Rule makes religious beliefs or opinions inadmissi-
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