United States v. Owens
21 M.J. 117 (1985)

  • Owens was standing outside of his house with a loaded rifle in the middle of the night.  His wife was driving away when the gun fired and killed her.
    • Owens maintained it was a tragic accident.
  • Owens was arrested on suspicion of murder.
  • At trial, the prosecution cross-examined Owens and asked him about omissions he had made on his application to join the Army.
    • It seems that Owens had been arrested three times, but hadn’t bothered to mention it on his application.
    • Owens then testified that he had someone else write his application for him, and if there were omissions, they weren’t his fault.
      • The prosecution really wanted to introduce evidence that Owens’ had been arrested, but they couldn’t do that directly because they would be barred by FRE 403 because he had never been convicted.  But by lying about a previous bad act, it opened the door for the prosecution to ask the question.
  • The Trial Court convicted Owens of murder.   He appealed.
  • The US Court of Military Appeals affirmed.
    • The Court found that the prosecution was authorized under Mil.R.Evid. 608(b) (similar to FRE 608(b)) to impeach Owens by extracting on cross-examination his admission to a prior act of intentional falsehood under oath.
      • The Court noted that they could not introduce extrinsic evidence to impeach Owens, but they could impeach him by direct cross-examination.