United States v. Milliken

PERRY, Judge

(concurring in the result):

I concur in the result reached in the principal opinion, but do not agree that the appellant “consented to the use of the pretrial statement.” It is apparent to me that the appellant opened the door when he testified on direct, in response to his attorney:

Q. Is this the same story that you’ve told all along?
A. Well, yes sir, it is; but the only thing I didn’t add in about the first robbery. I didn’t put that in the first story, sir.

The cross-examination which followed was proper and resulted in an acknowledgement by the appellant that he had indeed “voluntarily” made a pretrial statement in which he did not mention the first robbery. However, the statement was not admitted. In my view, the Government had every right *213to test, through proper cross-examination, the credibility of the appellant’s direct testimony that “the only thing I didn’t add in about the first robbery.”

Article 31(d) of the Uniform Code of Military Justice, 10 U.S.C. § 831(d), is a total proscription against admitting into evidence self-incriminating statements without the proper foundation; there is no exception for impeachment. However, in this case, the statement was not admitted into evidence. Rather, it was adverted to by the appellant in his direct testimony and the prosecuting attorney did not, in my opinion, act improperly in cross-examining the appellant to the limited extent which he did.