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Can the prosecution violate MRE 412
Yes, is my answer.
In several cases at trial I have objected to prosecution evidence under Mil. R. Evid. 412, for the prosecution’s failure to follow the rule.
Mil. R. Evid. 412 is clear that it applies to prosecutors. First the rule states:
A party intending to offer evidence under sub-section (b) must—
RCM 103(16) is helpful because there is a definition of who is a party to a court-martial.
(16) “Party.” Party, in the context of parties to a court-martial, means: (B) Any trial or assistant trial counsel representing the United States, and agents of the trial counsel when acting on behalf of the trial counsel[.]
Clear as day.
Today we filed a petition at the Court of Appeals for the Armed Forces as the court to hear this issue, basically does Mil. R .Evid. 412 apply to trial counsel and if so, what are the consequences of a failure to follow the rule. If Mil. R. Evid. 412 is supposed to mean anything for an alleged victim, it seems quite reasonable to apply the rule equally to the prosecution–doesn’t it?