CORE CRIMINAL LAW SUBJECTS: Evidence: Sexual Assault and Child Molestation
2022 (October Term)
United States v. St. Jean, 83 M.J. 109 (MRE 412 is a rule of exclusion which provides that in any proceeding involving an alleged sexual offense, evidence of a victim’s sexual behavior or predisposition is not admissible, subject to three limited exceptions).
(MRE 412(b)(2) makes admissible evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the misconduct, if offered by the accused to prove consent).
(MRE 412(b)(3) makes admissible evidence of other sexual behavior if its exclusion would violate the accused’s constitutional rights; generally, this means evidence must be admitted under MRE 412(b)(3) when the evidence is relevant, material, and favorable to the defense).
(an accused bears the burden of demonstrating that one of the three exceptions to MRE 412 applies).
(evidence falling under any MRE 412 exception is still subject to MRE 403, which permits a military judge to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence).
(in this case, the motions judge did not abuse his discretion in excluding evidence under MRE 412 of a prior sexual encounter (i.e., a kissing incident between appellant and victim) because exclusion was within the range of choices reasonably arising from the applicable facts and the law; in this regard, the two interactions at issue here between appellant and the victim were quite dissimilar; making out was simply not comparable to sexual intercourse; stated differently, the fact that a person consented to kissing on one day is not particularly probative of the issue of whether that person consented to full sexual intercourse a day later; furthermore, the motions judge did not fail to analyze appellant’s proffered evidence under the constitutional exception to MRE 412 or to adequately conduct a MRE 403 analysis).
(in this case, the trial judge did not abuse his discretion in requiring the defense to make a sufficient proffer before evidence about hickeys allegedly arising from the charged sexual assault would be deemed admissible at trial under MRE 412; here, the judge asked the defense what evidence was before the court that the hickeys were from the night of the offense; the defense counsel stated that he could possibly address the matter later, but never returned to it; as such, the judge never affirmatively excluded the evidence, and under this circumstance, there was no ruling by the judge to be appealed, and hence nothing for an appellate court to review).2020 (October Term)
United States v. Long, 81 M.J. 362 (in this case, the evidence was legally sufficient to support a finding that appellant was guilty of raping his daughter by penetrating her vulva with his penis where (1) based on the facts that the daughter experienced pain around her vagina, detected blood there before she had begun menstruating, and reported waking up to Appellant on top of her the night before, a rational factfinder could reasonably have inferred that Appellant penetrated her vulva, and (2) based on the position of appellant’s body and his hands, a reasonable inference that can be drawn in favor of the government is that appellant penetrated her with his penis).
(in this case, although the non-propensity evidence presented was legally sufficient to support the finding of guilt that appellant raped his daughter, the use of propensity evidence from another charged offense (that appellant penetrated the mother with his penis) to prove the charged offense (that appellant penetrated his daughter with his penis) was not harmless beyond a reasonable doubt where the non-propensity evidence was not overwhelming; although this case involved some corroborating evidence, the factfinder had to make an inference that appellant penetrated the daughter with his penis as opposed to with some other object, and in making this inference, the factfinder may have been influenced by the mother’s testimony that appellant had sexually assaulted her in the same manner as her daughter, coupled with the government’s propensity argument; the evidence supporting a conviction was simply not overwhelming without use of the propensity evidence).
United States v. Upshaw, 81 M.J. 71 (MRE 413 addresses the admission of evidence of similar crimes in sexual assault cases and states in relevant part that in a court-martial proceeding for a sexual offense, a military judge may admit evidence that the accused committed any other sexual offense and that evidence may be considered on any matter to which it is relevant; this provision provides an exception to MRE 404(b) and the general concept that prior convictions or uncharged misconduct are not admissible to show an accused’s propensity towards bad acts or bad character; the constitutionality of permitting admission of such propensity evidence was upheld by CAAF in US v. Wright, 53 MJ 476 (CAAF 2000)).
(as determined in US v. Hills, 75 MJ 350 (CAAF 2016), the government cannot use charged sexual misconduct to prove propensity to commit other charged sexual misconduct under MRE 413; neither the text of MRE 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case).
2019 (October Term)
United States v. Washington, 80 M.J. 106 (although MRE 403 provides in relevant part that the military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of confusing the issues, in this case, there was little danger that the SHARP testimony would confuse the members about a legal standard where no one suggested at trial that the members should decide the case according to what was said at the SHARP training, the members agreed in voir dire that they would follow the military judge’s instructions on the law, the military judge properly instructed the members on the law, and counsel for both sides made arguments in accordance with the military judge’s instructions on the law).
United States v. Prasad, 80 M.J. 23 (it impermissible to use MRE 413 propensity evidence as a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct).
2018 (October Term)
United States v. Hyppolite, 79 M.J. 161 (MRE 413(a) (2016 ed) creates an exception to MRE 404(b)(1) by providing that in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. And the evidence may be considered on any matter to which it is relevant; although MRE 413(a) sometimes may allow a court to consider propensity evidence, the rule is limited by US v. Hills, 75 MJ 350 (CAAF 2016), and US v. Hukill, 76 MJ 219 (CAAF 2017); these decisions prohibit using evidence of one charged offense as proof of another charged offense under MRE 413).
2017 (October Term)
United States v. Williams, 77 M.J. 459 (the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error).
United States v. Carpenter, 77 M.J. 285 (MRE 412 states that evidence offered by the accused to prove the alleged victim’s sexual predispositions, or that he 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).
United States v. Guardado, 77 M.J. 90 (in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense; the evidence may be considered on any matter to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; the rules do not extend to instances of charged conduct, however, for it is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent; using charged misconduct as MRE 413 evidence is an abuse of discretion; the prohibition against using charged conduct as propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected).
2016 (October Term)
United States v. Erikson, 76 M.J. 231 (evidence of an alleged victim’s prior accusation of sexual assault is only admissible if the prior accusation is shown to be false; this is true whether the defense seeks to introduce the evidence as an exception to MRE 412, or to show the alleged victim’s modus operandi, motive, or character evidence for lack of truthfulness).
(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 to the general rule outlined in MRE 412 is that evidence offered by the accused to prove that the alleged victim engaged in other sexual behavior, or to prove the alleged victim’s sexual predisposition, may be admissible at trial if necessary to protect an accused’s Sixth Amendment right to confrontation).
(appellant has the burden under MRE 412 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 as used in both Supreme Court and military precedent is synonymous with vital).
(in this case, the defense did not meet its burden of demonstrating that the victim’s prior allegation of sexual assault was false; for such evidence to be admissible under an MRE 412 exception or for it to be admissible under any other rationale such as evidence of a modus operandi, motive, or character evidence for lack of truthfulness, appellant was required to establish the falsity of the previous sexual assault accusation; the military judge heard the testimony of witnesses to the prior incident, was in the best position to determine the credibility of the witnesses, and concluded that the defense failed to establish the falsity of the evidence; neither a summary court-martial acquittal regarding the victim’s prior allegation of sexual assault nor a denial by the prior accused as to the assault was not dispositive of the falsity of the allegation, where the judge found the victim more credible than her accuser; accordingly, the military judge did not abuse his discretion in excluding it).
United States v. Hukill, 76 M.J. 219 (the use of evidence of charged sexual misconduct as MRE 413 propensity evidence for other charged sexual misconduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected; whether considered by members or a military judge, evidence of a charged and contested offense, of which an accused is presumed innocent, cannot be used as propensity evidence in support of a companion charged offense).United States v. Fetrow, 76 M.J. 181 (admissibility under MRE 414 (similar crimes in child-molestation cases) requires the following findings by the military judge: (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; with respect to the second element, the rule, in relevant part, defines “another offense of child molestation” as follows: child molestation means any offense punishableunder the UCMJ, or a crimeunder federal law or under state law that involves any conduct prohibited by Article 120 (rape and sexual assault generally) and committed with a child).
(the text of MRE 414 is construed strictly rather than expansively).
(in order for an accused’s prior conduct to be admissible in a court-martial for child molestation as evidence that appellant previously committed another offense of child molestation, the prior conduct must have been against the law at the time it occurred; otherwise, it would have been lawful conduct and thus, not a crime or an offense punishable under MRE 414).
(in order for an accused’s prior conduct to be admissible in a court-martial for child molestation as evidence that appellant previously committed another offense of child molestation, the similar crime must involve conduct listed in the version of MRE 414 in effect at the time of trial, and to the extent that list incorporates specific criminal statutes, the prior conduct at issue must constitute a crime under those statutes in effect on the day of trial).
(in order for an accused’s prior conduct to be admissible in a court-martial for child molestation as evidence that appellant previously committed another offense of child molestation, a two-part analysis is used for determining whether uncharged acts qualify as other offenses of child molestation, namely, (1) whether the conduct constituted a punishable offense under the UCMJ, federal law, or state law when the conduct occurred; and (2) whether the conduct is encompassed within one of the specific categories set forth in the version of MRE 414(d)(2)(A)-(G) in effect at the time of trial).
(the testimony of the accused’s biological daughter regarding an incident in which the accused allegedly seductively touched her thigh when she was approximately three to four years old was admissible as propensity evidence of a prior offense of child molestation at a GCM in which the accused was charged with molesting his stepdaughters; the accused’s alleged conduct with his biological daughter was an indecent act with a child punishable under UCMJ when committed, and it constituted abusive sexual contact under Art 120, UCMJ, an offense incorporated in the qualifying offenses set forth in MRE 414 in effect at the time of trial).
(the testimony of the accused’s biological daughter regarding an incident when she was three or four years old in which she saw the accused having sex with a woman and her testimony regarding another incident when she was eight or nine years old in which she saw the accused’s penis were inadmissible as propensity evidence of prior offenses of child molestation at a GCM in which the accused was charged with molesting his stepdaughters; even if both incidents constituted indecent exposure punishable under UCMJ when committed, indecent exposure was not incorporated in the qualifying offenses set forth in MRE 414 in effect at the time of trial because it did not involve a sexual act or sexual contact).
2015 (September Term)
United States v. Hills, 75 M.J. 350 (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 manner to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; MRE 413 is an exception to the ordinary rule that evidence of uncharged misconduct or prior convictions is generally inadmissible and may not be used to show an accused’s propensity or predisposition to commit charged conduct; in other words, despite the ordinary rule prohibiting the use of propensity evidence, members are permitted to consider testimony of past victims alleging that an accused perpetrated a sex offense upon them in order to infer that an accused has the propensity to commit the charged sex offense).
(MRE 413, subject to the MRE 403 balancing test and proper instructions, is constitutional).(an offense to which an accused has pleaded guilty or been found guilty can be admitted and considered under MRE 413 to show propensity to commit the sexual assaults to which he pleaded not guilty).
(uncharged sexual assaults that occurred subsequent to the charged offenses are not barred from being admitted under MRE 413). (it is impermissible to utilize MRE 413 to show that charged conduct demonstrates an accused’s propensity to commit the charged conduct).(MRE 413 is not a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct).
(neither the structure of MRE 413 and its relationship to MRE 404(b) nor the legislative history of the federal rule upon which it is based suggests that MRE 413 and its attendant instructions may be applied to evidence of charged misconduct; first, the structure of the rule suggests that it was aimed at conduct other than charged offenses; the notice provision in MRE 413(b), which requires the government to disclose the proposed MRE 413 evidence to the accused five days before trial, logically implies that only evidence of uncharged offenses (of which the accused would not otherwise be aware absent disclosure) are contemplated by the rule; second, the effect of MRE 413 was to put evidence of uncharged offenses in sexual assault cases on the same footing as other types of evidence that are not subject to a special exclusionary rule; charged misconduct is already admissible at trial under MRE 401 and 402, and it is not subject to exclusion under MRE 404(b); thus, as a matter of logic, it does not fall under MRE 413, which serves as an exception to MRE 404(b); further, the legislative history of the federal counterpart, FRE 413, also suggests that MRE 413 was not designed to apply to charged misconduct; the rule was intended to address recidivism, and it permits bolstering the credibility of a victim because knowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of the victim’s claims; while MRE 413 was intended to permit the members to consider the testimony of other victims with respect to an accused’s past sexual offenses, there is no indication that MRE 413 was intended to bolster the credibility of the named victim through inferences drawn from the same allegations of the same named victim).
(in this case, because evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of MRE 413, a rule of admissibility for evidence that would otherwise not be admissible, was error; neither the text of MRE 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case).
(an error in deciding that MRE 413 evidence of uncharged misconduct or prior convictions for sexual assaults meets the balancing test under MRE 403 and is admissible is usually nonconstitutional in nature).(in general, MRE 413 does not violate an accused’s right to a presumption of innocence).
(proper MRE 413 evidence is not fundamentally unfair; it is admissible on any matter to which it is relevant; and subject to MRE 403, the presumption with respect to MRE 413 evidence is in favor of admissibility).
(the fact that no presumption of innocence attaches to uncharged conduct is why the use of charged conduct as propensity evidence is analytically distinct from uncharged conduct),
(the government cannot use MRE 413 if it elects to join multiple sex offenses in a single trial).
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).
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).
(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)).
(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).
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