74 M.J. 24
C.A.A.F.2015Background
- PFC James S. Piren was charged with aggravated sexual assault, two abusive sexual contact specifications, and assault; he was acquitted of the aggravated sexual assault and convicted of one specification of abusive sexual contact.
- Facts: after a night drinking at a festival in Germany, Piren and SPC KW ended up in KW’s hotel room; KW testified she woke to Piren near her groin and pushed him away; Piren testified KW invited him into bed and consented to sexual activity until she later said “you’re not Zac.”
- Afterward Piren went to a train station, was later contacted by German police and military police, taken to a clinic, and consented to a sexual assault examination administered by a SANE (LTC Alumbaugh); he also made statements to CID and the SANE.
- Trial issues: defense moved to suppress evidence from the sexual assault exam, arguing involuntary consent and unlawful unwarned statements; government agreed to suppress statements to the SANE except reserved impeachment use; defense objected when government cross-examined Piren about his statements to the SANE as beyond the scope of direct examination.
- The military judge denied suppression of the exam results (finding consent voluntary) and allowed cross-examination about the SANE statements and subsequent impeachment by contradiction when the SANE denied those statements; the conviction and sentence were affirmed on appeal and CAAF granted review of the two legal issues.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Piren) | Held |
|---|---|---|---|
| Whether cross-examination exceeded scope of direct exam | Government argued Piren opened the door by testifying and cross-exam may probe credibility, including unwarned statements for impeachment | Piren argued direct testimony only covered events up to train station; cross about SANE statements was beyond scope and those statements were inadmissible because unwarned | Court held judge did not abuse discretion; cross-exam on SANE statements proper to test credibility and permitted impeachment by contradiction |
| Whether impeachment by contradiction with unwarned statements is permissible | Government relied on M.R.E. allowing unwarned statements to be used for impeachment | Piren asserted unwarned statements were inadmissible and could not be used to impeach him | Court held M.R.E. permits use of unwarned statements for impeachment by contradiction; allowed recall of SANE to contradict Piren |
| Whether consent to sexual assault exam was voluntary (suppression of DNA/evidence) | Government argued consent was voluntary under totality of circumstances; consent form and repeated advisements supported voluntariness | Piren argued he was in handcuffs, questioned by CID, asked about a lawyer, and reasonably believed he could not refuse, so consent was involuntary | Court held the military judge’s factual finding of voluntary consent was supported by the record and not clearly erroneous; motion to suppress denied |
| Whether failure to give Article 31 warning tainted consent or derivative evidence | Government: Article 31 warnings are distinct and lack of warning to SANE did not invalidate consent or make exam results fruit of unlawful questioning | Piren: lack of Article 31 warnings rendered his statements and derivative evidence inadmissible | Court held Article 31 failure to warn during later questioning did not make the earlier consent involuntary or render the exam results inadmissible |
Key Cases Cited
- United States v. Dewrell, 55 M.J. 131 (C.A.A.F. 2001) (standard of review for admission of evidence)
- United States v. Gallagher, 66 M.J. 250 (C.A.A.F. 2008) (review standards for military judges)
- United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000) (limits and deference in cross-examination rulings)
- United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999) (consent as factual determination reviewed for clear error)
- United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008) (totality-of-circumstances Wallace factors for voluntariness of consent)
- United States v. Kitts, 43 M.J. 23 (C.A.A.F. 1995) (reviewing evidence in light most favorable to government on suppression rulings)
- United States v. Tomchek, 4 M.J. 66 (C.M.A. 1977) (accused who testifies may be impeached like other witnesses)
- United States v. Banker, 15 M.J. 207 (C.M.A. 1983) (impeachment by contradiction explained)
- United States v. Gibson, 18 C.M.R. 323 (C.M.A. 1955) (accused’s credibility may be assailed when testifying)
- Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973) (voluntariness of consent evaluated under totality of circumstances)
- United States v. Burns, 33 M.J. 316 (C.M.A. 1991) (no right to counsel before consenting to searches)
- United States v. Murphy, 36 M.J. 732 (A.F.C.M.R. 1992) (factors relevant to voluntariness adopted in Wallace)