bias, or any motive to misrepresent may be shown to diminish the credibility of the witness, either by cross-examination of the witness himself or by evidence otherwise adduced. (3) Effect of impeaching evidence. Whether the credibility of a witness has been successfully impeached is a question to be decided, during deliberation upon the matter as to which the testimony of the witness was offered, by whoever is responsible for determining that matter, for example, by each member of the court during his deliberation as to his vote upon the matter if the matter is one properly determined by vote. Consequently, the law officer, or the president of a special court-martial, should not strike the admissible testimony of a witness or instruct that it be disregarded simply because impeaching evidence with respect to that witness or his testimony has been introduced. 154. MISCELLANEOUS MATTERS GUILTY STATE OF MIND; STIPULATIONS; OFFER OF PROOF; WAIVER OF OBJECTIONS. a Guilty state of mind. (1) General. A guilty state of mind of one kind or another is a requirement of many offenses. In certain offenses, such as burglary, larceny, and desertion, a specific intent is necessary. In the kind of murder denounced by Article 118(1), a premeditated design to kill must be proved. In some offenses, knowledge of a certain matter is a requirement. For details concerning the various guilty states of mind with respect to specific offenses, see chapter XXVIII (Punitive Articles). A guilty state of mind may be established either by direct evidence, for example, by words proved to have been used by the offender, or by circumstantial evidence, as by inference from the act itself. (2) Effect of insanity, mental defects, and character and behavior disorders. See 122. (3) Effect of drunkenness. A temporary loss of reason which accompanies and is part of a drunken spree and which is not the result of delirium tremens or some other mental defect, disease, or derangement is not insanity in the legal sense. It is a general rule that voluntary drunkenness not amounting to legal insanity, whether caused by liquor or drugs, is not an excuse for an offense committed while in that condition. However, evidence of any degree of voluntary drunkenness may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, or a premeditated design to kill if actual knowledge, specific intent, or premeditated design to kill is a requirement of the offense. Evidence of drunkenness of the accused may be admitted on the question of the measure of punishment to be awarded in the event of conviction, even if that drunkenness would not be a defense to the offense charged. As to proof of drunkenness, see 138e (Opinion evidence) and 191 (Drunk on duty). (4) Effect of ignorance or mistake of fact. Ignorance or mistake of fact on the part of the accused is a defense when any type of knowledge of a certain fact is necessary to establish the offense. However, depending on the offense and facts involved, ignorance or mistake of fact may not be a defense unless the ignorance or mistake is reasonable. A feigned ignorance or mistake is, of course, no ignorance or mistake at all. If a certain fact, although an element of the offense, is one as to which no type of knowledge is required, such as the age of the victim in carnal knowledge (1996), ignorance or mistake as to that fact, even if reasonable, will not be a defense but may be shown in extenuation. Some specific applications of these rules appear in chapter XXVIII (Punitive Articles). (5) Effect of ignorance or mistake of law. As a general rule, ignorance or mistake of law, or of properly published regulations or directives of a general nature having the force of law, is not an excuse for the commission of an offense. If, however, to indicate the existence of a requisite intent or for any other reason, actual knowledge of a certain law or of the legal effect of certain known facts is necessary to establish the offense, ignorance or mistake as to that law or legal effect will be a defense. Also, ignorance or mistake of law or the legal effect of certain known facts may be a defense to show the absence of a guilty state of mind involved in an offense when actual knowledge thereof is not necessary to establish the offense. In this instance, however, depending on the offense and facts involved, the ignorance or mistake may not be a defense, unless it is reasonable. A feigned ignorance or mistake of law or the legal effect of certain known facts is, of course, no ignorance or mistake at all. Additionally, except for general orders or regulations, a person cannot be held responsible for a violation of a military regulation or directive unless he had actual knowledge of the regulation or directive. See 171a and b as to the distinction between general orders or regulations and other military orders. Even if the offense is one as to which ignorance or mistake of law is not a defense, the ignorance or mistake may nevertheless be shown in extenuation. b. Stipulations. (1) As to facts and the contents of writings. The parties may make a written or oral stipulation as to the existence or nonexistence of any fact. If an accused has pleaded not guilty and the plea still stands, a stipulation which practically amounts to a confession should not be received in evidence. Also, a stipulation which if true would operate as a complete defense to an offense charged should not be received in evidence. A stipulation should not be received in evidence if any doubt exists as to the accused's understanding of what is involved. A party may withdraw from an agreement to stipulate or from a stipulation at any time before the stipulation is received in evidence, and in such a case the stipulation cannot be received in evidence. Also, the law officer or special court-martial may as a matter of discretion permit a party to withdraw from a stipulation which has been received in evidence, and in this event the stipulation must be disregarded by the court. Unless it is properly withdrawn or is ordered stricken from the record, a stipulation of fact which has been received in evidence may not be contradicted by the parties thereto. Subject to the above observations as to stipulations of facts, stipulations may be made as to the contents of a writing. (2) As to testimony. The parties may stipulate that if a certain person were present in court as a witness he would give certain testimony under oath. Such a stipulation does not admit the truth of the indicated testimony, nor does it add anything to the weight or the evidentiary nature of the testimony. Stipulated testimony may be attacked, contradicted, or explained in the same way as though the witness had actually so testified in person. The principles set forth in (1) above, as to the reception in evidence of stipulations and as to the withdrawal by a party from agreements to stipulate and from stipulations apply here also. A written stipulation as to testimony is merely read in evidence. The writing itself is not shown to the members of the court except, in the case of a pur special court-martial, when inspection of the writing is necessary for the pose of determining the admissibility of its contents. However, the writing will be properly marked and incorporated in the record. (3) Instructions concerning stipulations received in a joint or common trial. When in a joint or common trial a stipulation is received which was made by only one or some of the accused, the members of the court should be instructed that the stipulation may be considered only with respect to the accused person or persons who joined in it. c. Offer of proof. When the court refuses to hear certain testimony offered in behalf of the accused or refuses to receive certain evidence of any kind offered in his behalf, the defense may make a concise statement setting forth the substance of the expected testimony or other excluded evidence. The statement and any documentary evidence referred to therein will be included in the record of trial for the purpose of aiding reviewing and appellate authorities in arriving at their determination as to whether the exclusion of the evidence in question was proper. No such statement shall be considered as proof of the matters contained therein. See also 57g. d. Waiver of objections. The prosecution or the defense may in court either orally or in writing waive an objection to the admissibility of offered evidence. Unless otherwise indicated by a specific principle of law, such a waiver adds nothing to the weight of the evidence or to the credibility of its source. The law officer or special court-martial may as a matter of discretion refuse to accept, and may permit the withdrawal of, any such waiver. There is no prescribed form for making a waiver. Thus, if it clearly appears that the defense or prosecution understood its right to object, any clear indication on its part that it did not desire to assert that right may be regarded as a waiver of that objection. A waiver of an objection does not, however, operate as an express consent if an express consent is required, and a mere failure to object does not amount to a waiver with respect to the admissibility of evidence except as otherwise stated or indicated in this manual. Chapter XXVIII PUNITIVE ARTICLES 155. SYNOPSIS OF CHAPTER. In this synopsis the references on the left are to paragraphs; those on the right are to pages. 162. Article 83-Fraudulent enlistment, appointment, or separation......... 28-9 163. Article 84-Effecting unlawful enlistment, appointment, or separation- - - 164. Article 85... 28-10 28-10 168. Article 89-Disrespect toward a superior commissioned officer.. 28-17 169. Article 90___ 28-18 a. Striking or assaulting superior commissioned officer... 28-18 c. Dereliction in the performance of duties__. b. Disobeying superior commissioned officer.. 170. Article 91..... a. General discussion___- b. Assaulting a warrant officer, noncommissioned officer, or petty officer. 171. Article 92____. a. Violation or failure to obey a lawful general order or regulation.. 172. Article 93-Cruelty and maltreatment... 173. Article 94.. 28-18 28-19 28-19 28-20 28-20 28-20 28-21 28-21 28-21 28-22 28-22 28-23 |