CORE CRIMINAL LAW SUBJECTS: Evidence: Sexual Assault and Child Molestation

2013 (September Term)

United States v. Flesher, 73 M.J. 303 (expert testimony about the sometimes counterintuitive behaviors of sexual assault or sexual abuse victims is allowed because it assists jurors in disabusing themselves of widely held misconceptions; allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent is appropriate). 

(in this case, the qualifications of a sexual assault response coordinator were not sufficiently established on the record to permit her to testify as an expert witness on the counterintuitive behavior of sexual assault victims; in appropriate circumstances, a military judge may allow an expert witness to testify regarding how victims may or may not behave following a sexual assault; further, an appropriately qualified expert witness also may be able to testify why a sexual assault victim may or may not react in a particular manner; but in the instant case, the trial counsel conceded that his witness was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the witness could not testify on this point; and yet, the witness clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; an expert witness may not offer opinions that exceed the scope of the witness’s expertise; in this case, under these circumstances, it was error to permit the witness to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial).

(testimony on the counterintuitive behaviors of rape victims is relevant).

(expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked). 

2012 (September Term)

LRM v. Kastenberg, 72 M.J. 364 (the military judge erred by determining at the outset of a court-martial for rape, during arraignment proceedings and before any MRE 412 or 513 evidentiary hearings, that the named rape victim would not have standing to be represented through counsel during applicable hearings arising from the MRE; MRE 412(c)(2) provides that, before admitting evidence under the rule, the military judge must conduct a hearing where the alleged victim must be afforded a reasonable opportunity to attend and be heard; MRE 513(a) also provides that a patient has the privilege to refuse to disclose confidential communications covered by the psychotherapist-patient privilege; a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel; while MRE 412(c)(2) and 513(e)(2) provide a reasonable opportunity to be heard, including potentially the opportunity to present facts and legal argument, and allows a victim or patient who is represented by counsel to be heard through counsel, this right is not absolute; a military judge has discretion under RCM 801, and may apply reasonable limitations, including restricting the victim or patient and their counsel to written submissions if reasonable to do so in context; furthermore, MRE 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling; if counsel indicates at a MRE 412 or 513 hearing that the victim or patient’s interests are entirely aligned with those of trial counsel, the opportunity to be heard could reasonably be further curtailed). 

(a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests). 

United States v. Solomon, 72 M.J. 176 (MRE 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant; inherent in MRE 413 is a general presumption in favor of admission).

(there are three threshold requirements for admitting evidence of similar offenses in sexual assault cases under MRE 413:  (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under MRE 401 and MRE 402); for (2), the military judge must conclude that the members could find by a preponderance of the evidence that the offenses occurred; once these three findings are made, the military judge is constitutionally required to also apply a balancing test under MRE 403; MRE 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; in the MRE 413 context, the Rule 403 balancing test should be applied in light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible; accordingly, in conducting the balancing test, the military judge should consider the following non-exhaustive factors to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice:  strength of proof of the prior act (i.e., conviction versus gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and the relationship between the parties; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion).    

(inherent in MRE 413 is a general presumption in favor of admission; however, it is a constitutional requirement that evidence offered under Rule 413 be subjected to a thorough balancing test under MRE 403; where that balancing test requires exclusion of the evidence, the presumption of admissibility is overcome.  

(in this case, the military judge clearly abused his discretion in admitting evidence under MRE 413 of prior sexual assaults alleged committed by appellant but for which he had previously been acquitted; the problem was not that an incident for which an accused had been previously acquitted may never be admitted under MRE 413; rather, the problem here was that the military judge altogether failed to mention or reconcile appellant’s important alibi evidence and gave little or no weight to the fact of the prior acquittal; most problematic was the military judge’s determination that the evidence’s probative value outweighed the risk of unfair prejudice under MRE 403, where (1) in determining that the strength of proof of the prior acts were easily beyond a preponderance, the military judge omitted any discussion of a military police report’s tendency to establish appellant’s alibi, and (2) in determining that there was little, if any, risk of distraction of the factfinder, the military judge failed to
realize that admitting the evidence would actually result in a classic example of a distracting mini-trial on the prior alleged assaults, and he failed to take actions during trial to limit the overuse of the evidence, including declining to take judicial notice of the acquittal or providing a limiting instruction noting appellant’s acquittal). 

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (MRE 412 states that evidence offered by the accused to prove the alleged victim’s sexual predispositions, or that she engaged in other sexual behavior, is inadmissible except in limited contexts; the rule is intended to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evidence presentations common to sexual offense prosecutions; one of the exceptions set out in the rule states that the evidence is admissible if the exclusion of it would violate the constitutional rights of the accused). 

(the exception for constitutionally required evidence in MRE 412(b)(1)(C) includes the accused’s Sixth Amendment right to confrontation; an accused has a constitutional right to be confronted by the witnesses against him, and that right necessarily includes the right to cross-examine those witnesses; in particular, the right to cross-examination has traditionally included the right to impeach, i.e., discredit the witness). 

(generally, evidence must be admitted within the ambit of MRE 412(b)(1)(C) when the evidence is relevant, material, and the probative value of the evidence outweighs the dangers of unfair prejudice; relevant evidence is any evidence that has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; the evidence must also be material, which is a multi-factored test looking at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which the issue is in dispute, and the nature of the other evidence in the case pertaining to that issue; finally, if evidence is material and relevant, then it must be admitted when the accused can show that the evidence is more probative than the dangers of unfair prejudice; those dangers include concerns about harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant). 

(in a prosecution for rape and sodomy, evidence of an prior extramarital affair of the alleged victim, including her husband’s reaction to it, had a direct and substantial link to the victim’s credibility, a material fact at issue, where the existence of a prior affair may have established a greater motive for the victim to lie about whether her sexual encounter with appellant was consensual, namely a motive to protect her marriage; because the evidence had a tendency to prove or disprove a substantial issue in question, it was both relevant and material; in addition, the probative value of the evidence of the prior affair outweighed the dangers of unfair prejudice where the victim’s credibility was crucial to appellant’s conviction and there was no dispute as to whether the affair occurred, making it unlikely that the evidence would result in a waste of time or lead to a trial within a trial to determine whether past events actually occurred; as such, the evidence of the prior affair was constitutionally required in this case as an exception to MRE 412(a), and the military judge erred when he prevented appellant from presenting a theory that a prior affair made it more likely that the victim would have lied). 

United States v. Gaddis, 70 M.J. 248 (the balancing test in MRE 412(c)(3) is not facially unconstitutional; however, its current iteration, which purports to balance the alleged victim’s privacy against the probative value of the evidence, is needlessly confusing and could lead a military judge to exclude constitutionally required evidence; the alleged victim’s privacy interests cannot preclude the admission of evidence the exclusion of which would violate the constitutional rights of the accused; MRE 412 precludes the exclusion of any constitutionally required evidence). 

(under MRE 412, a rule of exclusion, evidence offered to prove that any alleged victim engaged in other sexual behavior is not admissible in any proceeding involving an alleged sexual offense except for three exceptions; the third of these exceptions, the constitutionally required exception, permits the admission of evidence the exclusion of which would violate the constitutional rights of the accused). 

(under the MRE 412 balancing test, if the military judge determines that the evidence that the accused seeks to offer is relevant for one of the three exceptions to the rule of exclusion and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy, such evidence shall be admissible to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined; such evidence is still subject to challenge under MRE 403). 

(whether evidence is constitutionally required, so as to meet the MRE 412(b)(1)(C) exception to MRE 412’s general prohibition of sexual behavior or predisposition evidence, demands the ordinary contextual inquiry and balancing of countervailing interests, e.g., probative value and the right to expose a witness’s motivation in testifying versus the danger of harassment, prejudice, confusion of the issues, the witness’s safety, or evidence that is repetitive or only marginally relevant; this balance is bounded on the one hand by the broad discretion of trial judges and rulemakers’ broad latitude under the Constitution to establish rules excluding evidence from criminal trials, and on the other by the Constitution’s guarantee of a meaningful opportunity to present a complete defense). 

(MRE 412 is intended to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evidence presentations common to sexual offense prosecutions). 

(without the privacy language in the balancing test, MRE 412 is a reasonable restriction on the admissibility of evidence that may be minimally relevant, but also carries a high risk of harassment, confusing the issues, and discouraging reports of sexual assault). 

(MRE 412 cannot limit the introduction of evidence that is required to be admitted by the Constitution). 

(MRE 412(c)(3)’s balancing test is anything but simple to understand or apply, but it is not facially unconstitutional; there is no question that even considering the privacy interest of the victim will yield a constitutionally valid result (1) when applied to evidence that is both constitutionally required and whose probative value outweighs the danger of unfair prejudice, as well as (2) when applied to evidence that is not constitutionally required and whose probative value does not outweigh the danger of unfair prejudice; the test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy; in those circumstances, the test would be unconstitutional as applied, abrogating US v. Banker, 60 M.J. 216 (CAAF 2004)(erroneously suggesting that balancing constitutionally required evidence against the privacy interest of the victim before admitting it was necessary to further the purpose of the MRE 412)).

(rape-shield statutes like MRE 412 do not violate an accused’s right to present a defense unless they are arbitrary or disproportionate to the purposes they are designed to serve; MRE 412 is a rape-shield law intended to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses; the MRE 412 balancing test is neither arbitrary nor disproportionate to this purpose; therefore, the test is not facially unconstitutional).      

(under balancing test of MRE 412, the probative value of the evidence must be balanced against and outweigh the ordinary countervailing interests reviewed in making a determination as to whether evidence is constitutionally required). 

(under balancing test of MRE 412, a court must ask whether appellant’s constitutional right to cross-examination has been violated). 

(MRE 412 cannot limit the introduction of evidence required by the Constitution, although the text of the rule seems to permit such a limitation; the purposes of MRE 412 are served by the rule itself, which prohibits all evidence of an alleged victim’s sexual behavior or predisposition unless, for example, it is constitutionally required; if after application of MRE 403 factors, the military judge determines that the probative value of the proffered evidence outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim; likewise, if a military judge determines that the evidence is not constitutionally required, the military judge must exclude the evidence under MRE 412, regardless of how minimal the alleged victim’s privacy interest might be, because it does not fall under an exception to the general rule of exclusion). 

(at best, the balancing test under MRE 412(c)(3), as currently written, is a nullity with respect to the constitutionally required exception set out in MRE 412(b)(1)(C); at worst it has the potential to cause military judges to unconstitutionally exclude evidence that is constitutionally required or admit evidence that is not; to a certainty, though, it has done nothing but add additional layers of confusion and uncertainty to the application of MRE 412).

(in a prosecution for sodomy with a child and indecent acts with a child, the military judge allowed the defense to ask the victim about a connection between the e-mails read by her mother and a physical examination her mother had scheduled shortly before the victim reported that she had been sexually assaulted by the accused, but the judge did not permit the defense to cross-examine the victim about the substance of the e-mails, which contained unsubstantiated rumors of the victim’s sexual activity; as such, the defense was able to present its theory of the victim’s motive to lie to the members, as well as to argue that case to the members; moreover, a reasonable panel would not have received a significantly different impression of the victim’s credibility had the defense been permitted to cross-examine her regarding the substance of the e-mails, which only contained unsubstantiated rumors of sexual activity; therefore, the contested evidence was not constitutionally required, did not qualify for the MRE 412(b)(1)(C) exception, and was properly excluded under MRE 412; the military judge simply imposed reasonable limits on the cross-examination and left open an opportunity for effective cross-examination). 

United States v. Savala, 70 M.J. 70 (MRE 412 limits the admissibility of specified forms of evidence in sexual offense cases; the rule serves to protect victims of sexual offenses from the degrading and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a defense).

(MRE 412(a), which generally prohibits the introduction of evidence regarding the alleged victim’s prior sexual behavior or the victim’s sexual predisposition, contains a number of exceptions to the general prohibition, including a provision for the admissibility of evidence the exclusion of which would violate the constitutional rights of the accused).

(MRE 412 constitutes a rule of exclusion; the defense bears the burden of demonstrating the admissibility of evidence that falls within the category of otherwise excludable evidence under MRE).

(the CCA did not clearly err in concluding that the prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution).
 
2009 (September Term)

United States v. Mullins, 69 M.J. 113 (in a trial involving the sexual assault of a child, an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused).

 

(it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false; such an inference derived from expert testimony invades the province of the members to determine the credibility of witnesses; an expert inference that there was a 1 in 200 chance the victim is lying undermines the duty of the panel members to determine guilt beyond a reasonable doubt). 

 

United States v. Yammine, 69 M.J. 70 (MRE 414 permits the admission of evidence of a prior act of child molestation to show propensity to commit a charged act of child molestation). 

 

(for evidence to be admitted under MRE 414, a rule permitting evidence of a prior act of child molestation to be admissible to show propensity to commit a charged act of molestation, the military judge must make three threshold findings: (1) whether the accused is charged with an act of child molestation as defined by MRE 414(a); (2) whether the proffered evidence is evidence of his commission of another offense of child molestation as defined by the rule; and (3) whether the evidence is relevant under MRE 401 and MRE 402; relevance under MRE 401 and MRE 402 is enforced through MRE 104(b); the court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence; once the three threshold factors are met, the military judge must then apply a balancing test under MRE 403; the importance of careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; inherent in MRE 414 is a general presumption in favor of admission). 

 

(the meaning of an offense of child molestation is defined in detail by MRE 414(d)-(g), and this definition provides an exclusive list of offenses that qualify as offenses of child molestation; thus, to be properly admitted under MRE 414, the proffered evidence must fall within the specific definition of an offense of child molestation set out in MRE 414; whether an offense qualifies under MRE 414 is interpreted strictly, rather than expansively, and requires that the offense fall within the rule’s specific definition). 

 

(in this case, evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not admissible under MRE 414 as evidence that appellant had a propensity to commit sodomy or indecent acts with a child; although the computer filenames were treated as synonymous with the offense of possession or attempted possession of child pornography, this offense was not a qualifying offense under MRE 414 under the facts of this case; possession or attempted possession of child pornography, while a violation of federal law, did not fall within any defined instance of child molestation relied on by the military judge or the CCA under MRE 414(d)(2) (offenses involving sexually explicit conduct with children) or MRE 414(d)(5) (offenses involving death, bodily injury, or physical pain on a child); MRE 414 limits qualifying offenses to crimes that involve actual persons; while computer filenames may be enough to satisfy probable cause, the admission of propensity evidence required more).

 

(in this case, the possession or attempted possession of child pornography was not a qualifying offense within MRE 414(d)(5) (offenses involving death, bodily injury, or physical pain on a child), where there was no way to know what, if anything, the computer files originally attached to the filenames depicted (even though the filenames themselves were clearly suggestive of homosexual acts involving preteen and teenage boys); thus, there was not only no way to know whether actual children were involved, there was also no way to know whether the conduct depicted otherwise fell within MRE 414(d)(5)’s requirement of the infliction of death, bodily injury, or physical pain on a child; although the infliction of death, bodily injury, or physical pain on a child may and undoubtedly does occur in the creation of much child pornography, in other instances, given the breadth of the conduct and ages covered, it may not; however emotionally traumatic possession by others of images involving that conduct may be for the children involved, infliction of death, bodily injury, and physical pain are specific and delimiting terms).

 

(in this case, the possession or attempted possession of child pornography was not a qualifying offense within MRE 414(d)(2) (offenses involving sexually explicit conduct with children), because the phrase “with children” requires that the conduct be in the physical presence of a child or children, and this did not occur under the facts of this case). 

 

(whereas MRE 414 was intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation, admissibility under MRE 404(b) is comparatively restrictive). 

 

United States v. Roberts, 69 M.J. 23 (generally, evidence of a victim’s past sexual behavior is inadmissible in a sexual offense case under MRE 412; the purpose of the rule is to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses; there are three exceptions to this general rule of exclusion, the third of which allows the admission of evidence if the exclusion of which would violate the constitutional rights of the accused; the burden of demonstrating why the general prohibition of MRE 412(a) should be lifted is on the proponent of the evidence). 

 

(in order to properly determine whether evidence is admissible under the constitutionally required exception to MRE 412(a), the military judge must evaluate whether the evidence is relevant, material, and favorable to the defense; evidence is relevant if it has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; in determining whether evidence is material, the military judge looks at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which this issue is in dispute, and the nature of the other evidence in the case pertaining to this issue; finally, if the military judge determines that the evidence is relevant and material, he then performs the MRE 412(b)(3) balancing test (whether the probative value of the evidence outweighs the danger of unfair prejudice to the victim’s privacy), to determine whether the evidence is favorable to the accused’s defense, and also considers the MRE 403 balancing factors). 

 

(in applying MRE 412, the judge is not asked to determine if the proffered evidence is true; rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under MRE 412). 

 

(in this case, the minimal probative value of evidence that the victim, appellant’s wife, had a sexual relationship with another man, was outweighed by the danger of unfair prejudice to the victim’s legitimate privacy interests under the MRE 412 balancing test, and thus its exclusion from the rape trial did not violate appellant’s right to confrontation under MRE 412; although the evidence was offered to show that the victim fabricated the rape allegation to get appellant out of the house and protect her relationship with the other man, the evidence already showed that appellant had asked the victim for a divorce, thus revealing the improbability of the underlying purpose for the evidence, and the proposed testimony about the relationship was based on speculation and conjecture). 

 

(appellant, who was charged with rape, was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation and the proposed line of questioning did not involve allegations of sexual behavior that would implicate the exclusionary rule of MRE 412; cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination). 


United States v. Smith, 68 M.J. 445 (an accused has the burden under MRE 412, the rule governing admission of evidence of the victim’s prior sexual conduct, of establishing his entitlement to any exception to the prohibition on the admission of evidence offered to prove that any alleged victim engaged in other sexual conduct; to establish that the excluded evidence would violate the constitutional rights of the accused, an accused must demonstrate that the evidence is relevant, material, and favorable to his defense, and thus whether it is necessary; the term favorable is synonymous with vital). 

 

(even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victim’s credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s extant theory of fabrication).


United States v. Ediger, 68 M.J. 243 (under MRE 414, in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant).

 
(admission of evidence under MRE 414 requires a two-step analysis:  first, the military judge must make three threshold findings:  (1) whether the accused is charged with an act of child molestation as defined by MRE 414(a); (2) whether the proffered evidence is evidence of his commission of another offense of child molestation as defined by the rule; and (3) whether the evidence is relevant under MRE 401 and MRE 402; once the three threshold factors are met, the military judge must then apply a balancing test under MRE 403; the importance of careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence).

 
(inherent in MRE 414 is a general presumption in favor of admission).  

 

(military judge properly adopted his predecessor’s earlier determination that testimony regarding appellant’s prior molestation of another child was admissible under MRE 414, despite the fact that the government dismissed an indecent liberties charge alleging that appellant masturbated in front of the child victim, where the government did not dismiss a corresponding false official statement specification which charged that he had made a false official statement that he had never masturbated in the victim’s presence; because the same conduct raised in the dismissed charge, alleged masturbation in front of the victim, remained at issue in appellant’s court-martial despite the government’s dismissal of the indecent liberties charge, the analysis undertaken by the predecessor judge was still relevant and applicable despite the government’s dismissal of the indecent liberties charge). 

 
(where the members are instructed that MRE 414 evidence may be considered for its bearing on an accused’s propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged; moreover, the factfinder may not convict on the basis of propensity evidence alone). 

 
(once evidence is admitted under MRE 414, that evidence may be considered for any matter to which it is relevant). 

 
(once it was determined that testimony regarding appellant’s prior child molestation of another victim was relevant propensity evidence in a prosecution for rape of a child and making a false official statement, the members could consider the testimony in their evaluation of any of the charges facing appellant for which it was relevant; the members were not required to consider the propensity evidence solely for the rape charge). 

 
(the exact same acts of sexual molestation are not required for the admission of evidence under MRE 414). 

 
(temporal proximity is but one factor considered by the military judge in determining the admissibility of propensity evidence regarding appellant’s prior acts of child molestation, and the length of time between the events alone is generally not enough to make a determination as to the admissibility of the testimony). 


2007


United States v. Sanchez, 65 M.J. 145 (the testimony of a pediatric physician that the physical examination of an alleged child sexual assault victim revealed a thickened hymen, a high vaginal white blood cell count, and anal dilation and that the constellation of her findings were concerning for sexual abuse, had a sufficient factual basis and was sufficiently reliable as to be admissible under MRE 702 governing the admissibility of expert testimony; as such, the military judge did not abuse her discretion in admitting this testimony and the ruling was not manifestly erroneous). 

 

United States v. Schroder, 65 M.J. 49 (MRE 414(a) provides that in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant). 

 

(before admitting evidence of other acts of child molestation under MRE 414, the military judge must make three threshold findings:  (1) that the accused is charged with an act of child molestation as defined by MRE 414(a); (2) that the proffered evidence is evidence of his commission of another offense of child molestation; and (3) that the evidence is relevant under MRE 401 and MRE 402). 

 

(before admitting evidence of other acts of child molestation under MRE 414, the military judge must also conduct a MRE 403 balancing analysis, applying factors that include:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties). 

 

(the definition of an offense of child molestation in MRE 414(d)-(g) provides an exclusive list of offenses that qualify as offenses of child molestation; thus, it does not give the military judge the discretion to admit uncharged misconduct in every case in which the accused has allegedly committed indecent acts or indecent liberties with a child as those offenses are defined in the MCM; the charged acts must fall within the specific definition of an offense of child molestation set out in MRE 414).

 

(indecent acts specification alleged an offense of child molestation within the meaning of the MRE 414 definition of such an offense, where that specification alleged that the accused placed his hand upon the victim’s buttocks, placed his hand upon her groin area, and grabbed her buttocks, notwithstanding the fact that the specification also alleged two other acts that did not fall within the definition -- placing his hand on the victim’s leg and kissing her on the neck; those latter two acts were not within the MRE 414 definition for sexual acts or sexual contact). 

 

(military judge did not abuse his discretion in admitting other acts evidence under MRE 414 to prove the charged acts of rape and indecent acts, where the military judge made the required threshold findings and conducted a lengthy on-record MRE 403 balancing analysis, and where there was direct evidence in the form of eyewitness testimony by the victims that appellant had committed the other acts of child molestation, there were no significant intervening circumstances between the charged and uncharged acts, and with all the victims, appellant had abused his position as a father figure to take advantage of them). 

 

(in child molestation case in which other acts of child molestation were admitted, military judge was not required to give an instruction distinguishing between the charged acts that met the definition of offense of child molestation in MRE 414 and those in the charge that did not).

 

(in child molestation case, military judge erred in his instruction as to how the members could consider the MRE 414 evidence, where the instruction was susceptible to an unconstitutional interpretation that the members were permitted to conclude that the presence of similarities between the charged and uncharged misconduct were, standing alone, sufficient evidence to convict appellant of the charged offenses). 

 

(where the members in a child molestation case are instructed that MRE 414 evidence may be considered for its bearing on an accused’s propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged). 

 

(in a child molestation case, the factfinder may not convict on the basis of propensity evidence alone). 

 

(although MRE 414(a) provides that evidence of uncharged misconduct may be considered for any matter to which it is relevant, there is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial; as a result, where MRE 414 evidence is admitted, there is a need for procedural safeguards to delimit the use of such evidence; one such safeguard is to ensure that trial counsel does not use such evidence to unduly inflame the members; the MRE 414 safeguards could be undermined if trial counsel’s comments were permitted to range outside the realm of legally relevant matters and express a sense of outrage and injustice regarding the victims of uncharged misconduct). 

 

United States v. Bare, 65 M.J. 35 (MRE 414(a) provides that in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant).

 

(before admitting evidence of other sexual acts under MRE 414, the military judge must make three threshold findings:  (1) that the accused is charged with an act of child molestation as defined by MRE 414(a); (2) that the proffered evidence is evidence of his commission of another offense of child molestation as defined by the Rule; and (3) the evidence is relevant under MRE 401 and MRE 402; the military judge must also conduct a MRE 403 balancing analysis, to which the following nonexhaustive list of factors is relevant:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties). 

 

(when projecting on a child the mens rea of an adult or extrapolating an adult mens rea from the acts of a child, military judges must take care to meaningfully analyze the different phases of the accused’s development rather than treat those phases as unaffected by time, experience, and maturity). 

 

(the military judge in a child molestation case did not abuse his discretion in admitting evidence of uncharged, but similar molestation which occurred when the accused, now in his thirties, was between sixteen and nineteen years old, despite the accused’s contention that the military judge failed to give adequate consideration to his young age at the time the uncharged misconduct, where the military judge conducted a meaningful MRE 403 balancing analysis which considered factors weighing both against and in favor of admission of the evidence, the misconduct occurred while the accused was an adult as well as an adolescent, and the misconduct occurred regularly for a period of about two or three years). 

 

(MRE 414 was intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation). 

 

United States v. Foster, 64 M.J. 331 (an expert may testify about symptoms that are generally found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; an expert may also testify about patterns of consistency generally found in the stories of victims as compared to patterns in the victim’s story; however, there is a fine line between admissible testimony in this area and testimony about a victim’s credibility or its functional equivalent, which is not admissible).

 

United States v. Brooks, 64 M.J. 325 (an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; he or she may also discuss various patterns of consistency in the stories of child sexual abuse victims and compare those patterns with patterns in the victim’s story; however, to put an impressively qualified expert’s stamp of truthfulness on a witness’s story goes too far; an expert should not be allowed to go so far as to usurp the exclusive function of the court members to weigh the evidence and determine credibility).

 

(in a child sexual abuse case, where the government expert’s testimony suggested that there was better than a ninety-eight percent probability that the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and the military judge erred in admitting it; the error was plain and obvious, and it materially prejudiced the accused’s substantial rights where the case hinged on the victim’s credibility and medical testimony; accordingly, admitting this improper credibility quantification testimony was plain error). 


2006


United States v. Barnett, 63 M.J. 388 (consent, as a legal matter, and in the context of adult relations, is a fact-specific inquiry that must be made on a case-by-case basis). 

 

United States v. James, 63 M.J. 217 (the propensity evidence of similar crimes in child molestation cases addressed in MRE 414 is admissible for offenses committed both before and after the charged offense, if it is otherwise relevant and admissible under MRE 401, MRE 402, and MRE 403; there is no temporal limitation on the admissibility of specific uncharged sexual misconduct under MRE 414; in this case, MRE 414 authorizes admission of appellant’s child molestation offenses committed after the charged offenses of child molestation). 

 

(prior to 1996, the admissibility of evidence of uncharged misconduct in the military justice system was severely restricted by MRE 404(b); this rule allowed evidence of bad acts to be admitted for limited purposes, but the basic evidentiary rule excluded bad acts solely to show bad character and a propensity to act in conformance with that bad character; in 1996, the rule against the admissibility of bad acts to prove a propensity to commit similar acts was turned upside down in cases involving violent sexual behavior or sexual offenses involving minors; Congress, as a part of the Violent Crime Control and Enforcement Act of 1994, enacted Fed. R. Evid. 413 and Fed. R. Evid. 414, rules that became applicable to military practice in 1996, and were formally adopted as MRE 413 and MRE 414 in a 1998 amendment to the MCM; these rules stated that in cases of sexual assault or sexual misconduct with a child, evidence of the commission of similar offenses, was admissible and may be considered for its bearing on any matter to which it is relevant; no exceptions were listed in the rules). 

 

(as long as appropriate safeguards are applied, MRE 413 and MRE 414, rules of evidence allowing evidence of similar crimes in sexual assault and child molestation cases, are not limited to evidence of behavior taking place prior to that charged).

 

(Congress, in enacting Fed. R. Evid. 413 and Fed. R. Evid. 414, and the President in adopting MRE 413 and MRE 414, have decided that evidence of other acts of sexual misconduct is admissible to show a propensity to engage in that type of sexual misconduct; so-called propensity evidence is therefore relevant in cases of sexual assault or child sexual molestation; there is no reason to conclude that prior misconduct is probative and subsequent misconduct is not; it is the fact of the other act that makes it probative, not whether it happened before or after the act now charged; the rules of relevance therefore do not require a temporal limitation on the application of MRE 413 and MRE 414; however, in the application of the MRE 403 balancing, temporal factors may be important). 

 

(in interpreting MRE 404(b), CAAF has joined the prevailing federal practice, which does not limit “other” in acts under Fed. R. Evid. 404(b) to “prior” acts; it now continues down that road and concludes that the “one or more offenses” language of MRE 413 and MRE 414 is no more temporally restrictive than the “other crimes” language of MRE 404(b)).


(MRE 414 is not limited to prior instances of child molestation). 

 

(the military judge did not abuse his discretion in ruling that the propensity evidence relating to appellant’s similar misconduct for child molestation that occurred after the charged conduct was admissible and not unfairly prejudicial where the military judge was concerned about undue prejudice, was meticulous in his application of the balancing required by MRE 403, and limited the scope of the admissible propensity evidence). 

 

(military judges dealing with objections to propensity evidence proffered under MRE 413 or MRE 414 should make a record of their application of MRE 403).

 

United States v. Washington, 63 M.J. 418 (with respect to other acts evidence involving child molestation and sexual assault, MRE 413 and MRE 414 are intended to provide for more liberal admissibility of character evidence in criminal cases; specifically, MRE 414(a) provides that in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant).


2005

 

United States v. Berry, 61 M.J. 91 (inherent in MRE 413 is a general presumption in favor of admission; however, it is a constitutional requirement that evidence offered under Rule 413 be subjected to a thorough balancing test under MRE 403 where its probative value is balanced against its prejudicial impact; where that balancing test requires exclusion of the evidence, the presumption of admissibility is overcome). 
 
(to admit evidence under MRE 413, three threshold determinations must be made:  (1) the accused is charged with an offense of sexual assault; (2) the evidence proffered is evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence is relevant under the evidence rules governing relevance, MRE 401 and 402). 
 
(once the evidence meets the threshold requirements of MRE 413, a military judge must apply the balancing test of MRE 403 under which the testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members). 
 
(evidence of a prior uncharged sexual assault by an accused involving a younger victim satisfied the relevance prong of the threshold test for the admission of uncharged sexual assault in a case where the accused was charged with forcible sodomy of a victim who was drunk, as it has some tendency to make it more probable that the accused committed a nonconsensual act against a vulnerable person).
 
(a military judge erred in admitting evidence of an uncharged sexual act between the accused and another victim that occurred eight years earlier than the charged forcible sodomy when the accused was thirteen and the other victim was six; although the evidence was relevant, it failed the balancing test after consideration was made of its probative weight, the frequency of the acts, the temporal proximity of the prior act and the presence of intervening circumstances, and the distraction of the factfinder which might result in a distracting mini-trial on a collateral issue).
 
(the length of time between the events alone is generally not enough to make a determination as to the admissibility of MRE 413 testimony; the circumstances surrounding the individual and the events that transpired in the intervening period must be taken into consideration; where an accused was an adult at the time he committed the prior sexual assault, this court has found incidents occurring more than eight years prior to the charged incident to be relevant under MRE 413; a similar finding is not readily made where a prior incident is between children or adolescents).
 
(where a military judge finds that the prior “sexual assault” acts of a child or adolescent are probative to an act later committed as an adult, such a determination must be supported in the record by competent evidence).

 

2004

 

United States v. Banker, 60 MJ 216 (MRE 412, the rape shield evidence rule precluding admission of evidence of the sexual history of sexual assault victims, was intended to safeguard the alleged victim against the invasion of privacy and potential embarrassment that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process; by affording victims protection in most instances, the rule encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders; MRE 412 was intended to protect victims of sexual offenses from the degrading and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a defense). 

 

(MRE 412 is not limited to nonconsensual sexual offenses, but applies to proceedings involving alleged sexual misconduct; following the 1998 amendments to MRE 412, the applicability of MRE 412 hinges on whether the subject of the proffered evidence was a victim of the alleged sexual misconduct and not on whether the alleged sexual misconduct was consensual or nonconsensual). 

 

(in the trial of the accused for sexual misconduct involving a 14-year-old babysitter, the proffered testimony of the accused’s son that the babysitter sexually molested him fell within the scope of MRE 412 because the babysitter was a victim of the accused’s sexual misconduct where due to her age, she was not capable of legally consenting, notwithstanding any factual consent). 

 

(the purpose of the MRE 412 rape shield law is to protect alleged victims of sexual offenses from undue examination and cross-examination of their sexual history; MRE 412 is a rule of exclusion; MRE 412 is broader in its reach than its federal counterpart; under MRE 412, not only is evidence of the alleged victim’s sexual propensity generally inadmissible, evidence offered to prove an alleged victim engaged in other sexual behavior is also generally excluded). 

 

(there are three exceptions to MRE 412; first, evidence of specific instances of sexual conduct is admissible to prove that a person other than the accused was the source of semen, physical injury, or other physical evidence; second, evidence of specific instances of sexual behavior by the alleged victim with the accused may be offered to prove consent; and third, evidence the exclusion of which would violate the constitutional rights of the accused is also admissible). 

 

(in order to overcome the exclusionary purpose of MRE 412, an accused must demonstrate why the general prohibition in MRE 412 should be lifted to admit evidence of the sexual behavior of the victim; in particular, the proponent must demonstrate how the evidence fits within one of the exceptions to the rule; in light of the important and potentially competing constitutional and privacy claims incumbent in MRE 412, the rule requires a closed hearing to consider the admission of the evidence; among other things, the victim must be afforded a reasonable opportunity to attend and be heard at this closed hearing). 

 

(based on the evidence presented at the closed hearing held under MRE 412, the military judge applies a two-part process of review to determine if the evidence is admissible; first, pursuant to MRE 401, the judge must determine whether the evidence is relevant; evidence is relevant if it has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; where the military judge determines that evidence is relevant, the judge employs a second analytic step by conducting a balancing test to determine whether the probative value of such evidence outweighs the danger of unfair prejudice; the accused has a right to put on testimony relevant to his theory of defense; however, the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process).

 

(although a two-part relevance-balance analysis is applicable to all three of the enumerated exceptions to MRE 412, evidence offered under the constitutionally required exception is subject to distinct analysis; while the relevancy portion of this test is the same as that employed for the other two exceptions of the rule, if the evidence is relevant, the military judge must then decide if the evidence offered under the constitutionally required exception is material and favorable to the accused’s defense, and thus whether it is necessary; in determining whether evidence is material, the military judge looks at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which this issue is in dispute, and the nature of the other evidence in the case pertaining to this issue; after determining whether the evidence offered by the accused is relevant and material, the judge employs the MRE 412 balancing test in determining whether the evidence is favorable to the accused’s defense; while the term favorable may not lend itself to a specific definition, this Court believes that based on Supreme Court precedent and the Court’s own rulings in this area, the term is synonymous with vital).

 

(although the MRE 412 balancing test bears resemblance to the MRE 403 balancing test, the two tests are distinct; the balancing test contained in MRE 412 differs in two critical respects from that contained in MRE 403; first, under the MRE 403 balancing test, a presumption of admissibility exists since the burden is on the opponent to show why the evidence is inadmissible; MRE 403 is a rule of inclusion; in contrast, MRE 412 is a rule of exclusion; the burden of admissibility shifts to the proponent of the evidence to demonstrate why the evidence is admissible; second, MRE 403 is generally applicable to evidence offered by either the government or the accused; to exclude evidence under MRE 403, the military judge must find substantial prejudice leading to one of a number of enumerated harms, including unfair prejudice to the accused; MRE 412’s general rape shield rule is applicable to both parties; however, in contrast to MRE 403, the balancing test that MRE 412 establishes for exceptions to the general rule contemplates evidence that the accused seeks to offer; thus, MRE 412 requires the military judge to determine on the basis of the hearing that the evidence that the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice; it would be illogical if the judge were to evaluate evidence offered by the accused for unfair prejudice to the accused; rather, in the context of the rape shield rule, the prejudice in question is, in part, that to the privacy interests of the alleged victim; as a result, when balancing the probative value of the evidence against the danger of unfair prejudice under MRE 412, the military judge must consider not only the MRE 403 factors such as confusion of the issues, misleading the members, undue delay, waste of time, needless presentation of cumulative evidence, but also prejudice to the victim’s legitimate privacy interests).

 

(MRE 412 does not wholly supplant MRE 403 since the military judge may exclude evidence on MRE 403 grounds even if that evidence would otherwise be admissible under MRE 412).

 

(MRE 412 applies not only to propensity evidence, but also to evidence of the victim’s other sexual behavior; MRE 412 is intended to shield a victim from having their own sexual conduct and history placed at issue, unless the military judge first determines in the closed hearing that such inquiry is warranted by the rule). 

 

(in applying MRE 412, the judge is not asked to determine if the proffered evidence is true; it is for the members to weigh the evidence and determine its veracity; rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under MRE 412; while evidence of a motive to fabricate an accusation is generally constitutionally required to be admitted, the alleged motive must itself be articulated to the military judge in order for him to properly assess the threshold requirement of relevance). 

 

(in the trial of the accused for sexual misconduct involving a 14-year-old babysitter, the military judge did not abuse his discretion in refusing on relevancy grounds pursuant to MRE 412 to admit the testimony of the accused’s son that the babysitter sexually molested him; at trial, defense counsel stated only that his son’s testimony went directly to the babysitter’s credibility and motive to fabricate; the defense failed to articulate a specific theory or motive as to why the babysitter might have fabricated the allegations against the accused; this proffer was not adequate to support the theory advanced on appeal that the babysitter fabricated the allegations against him in order to preemptively discredit any allegations that his son might ultimately have made regarding the babysitter’s sexual conduct with him; in the context of MRE 412, it was within the judge’s discretion to determine that such a cursory argument did not sufficiently articulate how the testimony reasonably established a motive to fabricate; moreover, based on the analytic structure of MRE 412, in ruling on relevancy, the military judge was not also required to address the constitutional exception or the application of the balancing test; therefore, without more, it was within the discretion of the military judge to conclude that the offered testimony was not relevant; the military judge did not abuse his discretion in refusing to admit the son’s testimony because the accused did not meet his burden of proving why the MRE 412 prohibition should be lifted).

 

2001

United States v. Bailey, 55 MJ 38 (in balancing under Mil. R. Evid. 403, the military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (see Mil. R. Evid. 413) where that judge considered the following factors in conducting the balancing test:  proximity; similarity to the charged event; the rate of frequency of the other acts; surrounding circumstances, relevant intervening events; and other relevant similarities or differences).

(military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (Mil. R. Evid. 413); in reviewing the trial judge’s Mil. R. Evid. balancing test, the court considered the following factors which were supported by the record:  temporal proximity; similarity to the event charged; frequency of the acts; presence of lack of intervening circumstances; the strength of proof of the act; the trial time needed for proof of the prior act; distraction to factfinder; potential for less prejudicial evidence; and that probative weight of the evidence).

United States v. Dewrell, 55 MJ 131 (military judge’s careful and reasoned analysis on the record satisfied the constitutional requirement that evidence offered under Mil. R. Evid. 413 be subjected to a thorough balancing test pursuant to Mil. R. Evid. 403).

(evidence of uncharged other sexual misconduct was properly admitted where:  (1) the threshold findings were met under Mil. R. Evid. 413; (2) the evidence was found to be relevant to the immediate charged under Mil. R. Evid. 401 and 402; and (3) the military judge clearly found that the probative value of specific portions of the testimony outweighed any prejudicial effect, as required under Mil. R. Evid. 403).

2000


United States v. Henley
, 53 MJ 488 (where victims of long-term sexual abuse as children testified about uncharged sexual abuse outside the statute of limitations, evidence was admissible to show appellant’s similar sexual molestation of his children).


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