Worried That Your Article 120, UCMJ (Sexual Assault) Accuser is Going to Lie or Not Remember? Part 4

Military defense attorneys trying cases involving rape, sexual assault and abusive sexual contact must be able to show that the Article 120, UCMJ accuser is untruthful.  There are two Military Rules of Evidence that are specifically useful when a military defense attorney is attempting to impeach a witness. Those two Military Rules of Evidence are Rule 404(a)(3) and 608(a).  These rules allow military defense attorneys to show that a witness has a character trait of untruthfulness. Military defense attorneys often refer to this as “putting on character evidence.”  Under this method of impeachment, military defense attorneys use proof of the character trait of untruthfulness as circumstantial proof of the witness’s propensity to lie. The thought process being that “If the Article 120, UCMJ accuser is untruthful, their untruthfulness increases the probability that the Article 120, UCMJ accuser is lying, i.e., acting in conformity with the character trait.”

Unlike the impeachment technique that was discussed in yesterday’s post, military defense attorneys may use character evidence during both direct and cross-examination.  Additionally, military defense attorneys often place character evidence in front of the members (jurors) through witnesses other than the Article 120, UCMJ accuser. In fact, Military Rule of Evidence 405(a) states that the character witness may present either opinion or reputation evidence about the Article 120, UCMJ accuser.  Practically speaking, a military defense attorney may call a witness to testify that the Article 120, UCMJ accuser has a reputation for being untruthful.  Alternatively, a military defense attorney may call a witness to testify about their opinion concerning the Article 120, UCMJ accuser’s character for truthfulness.

Live witness testimony is not the only way a military defense attorney may put character evidence in front of the members (jury).  Military Rule of Evidence 405(c) specifically permits the military defense attorney to present affidavits and written statements about a person to show a witness’s character. However, if the military defense attorney offers these types of statements, the prosecution may rebut with similar evidence. 

Military defense attorney Matthew Thomas is considered one of the top litigators practicing military law.  For the better part of the last decade, Mr. Thomas has focused his entire practice on military justice and was named the “Defense Counsel of the Year,” in 2021.  Call Matthew Thomas Law, PLLC for a free case evaluation today.