The year of 412

Yes, this season appears to be the one to address a number of lingering or ambiguous (or not so ambiguous) issues about Mil. R. Evid. 412. So, it seems apt that the last opinion for this season is out: United States v. Ellenbrock.

We granted review to determine whether the military judge erred in applying Military Rule of Evidence (M.R.E.) 412 to prevent Appellant from introducing evidence of the alleged victim’s first marital affair to show a motive to fabricate the accusation against Appellant. We hold that the evidence was constitutionally required, that the military judge abused her discretion by refusing to admit the evidence, and that it was not harmless beyond a reasonable doubt. Appellant moved under M.R.E. 412 to introduce testimony that CL had engaged in a prior extramarital affair to support his theory that CL had a motive to lie about the consensual nature of the sex with him, which was to protect her marriage.

I notice there does not appear to have been a discussion at trial of admission with a limiting instruction. This should be a request in the toolbag, or suggested sua sponte by the MJ.

[W]ith proper instructions from the military judge on how the members could use this evidence, there is little concern that the members would have been misled. See United States v. Walker, 42 M.J. 67, 74 (C.A.A.F. 1995) .

Even though the rules have had Mil. R. Evid. 303 since inception of the MRE it was felt we needed something explicit for a special class of witness (other than the accused), as explicitly said:

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. Gaddis, No. 10-0512, 2011 CAAF LEXIS 669, at *9, 2011 WL 3518169, at *3 (C.A.A.F. Aug. 10, 2011) (alteration in original) (quoting Manual for Courts-Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-35 (2008 ed.)).

Of course trial counsel and many a judge forget the other part of the rule, if the evidence “is not material to the issue and may tend to degrade that person.” Ooops, sorry was quoting from Mil. R. Evid. 303.

While part of the Van Arsdall HBRD analysis here is a pointer that I think often needs to be made at trial, and not just on 412 motions.

“‘[a] reasonable jury might have received a significantly different impression of [the witness’s] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.’” Smith, 68 M.J. at 451 (alterations in original) (quoting United States v. Collier, 67 M.J. 347, 352 (C.A.A.F. 2009)).

Sometimes military judges forget that it is the affect on the fact-finder that is part of the analysis on evidentiary issues. So, a military judge might not believe that a woman could ever have a motive to lie about casual sex to protect her marriage, relationship, or job. But that’s not the issue, it’s whether or not a reasonable jury might believe it to be a motive to lie and thus relative to credibility — unless you made the mistake of an MJA trial with such a judge.

Overall though my sense is that this case, like Savala, is fact specific. Whereas Judge Baker, with whom I disagree, seems to believe a new rule has been set for all cases, although I accept it could be a rhetorical device on his part. I don’t believe that “any” time there’s a prior adultery by the complaining witness means that fact will come in. As with Ellenbrock, there have to be more facts. But this is how Judge Baker characterizes the majority.

The link appears to be based on a “common sense” understanding that a married person who has had an affair is more likely to later fabricate a rape allegation with a stranger than someone who has not. That is the type of presumption about the sexual propensity and moral character of a sexual assault victim that M.R.E. 412 is intended to exclude. Moreover, the logic of the argument implies that any prior fact that would place additional stress on a marriage is constitutionally required to be admitted where a married woman is the victim of a sexual assault and the defense is based on consent.

“I can’t believe he did that.” How many times have we said that about clients who have done some dumb, odd, crass, or [insert word] things. If an accused can be that way, why can’t a complaining witness or any witness do [insert word]. How many times have we been taught that our own preconceptions of how people will or won’t act have been found at odds with events in a case or live in general. So yes, it is quite reasonable to believe the foundation for concern in this case. Then add the “hot tempered” husband who likes to beat people up, and then think . . . Huuuuuuuum. I just had some casual sex, there may be gossip, it may get back to my husband (or boyfriend, or girlfriend, or fiancee). Huuuuuuuuum, what shall I say. Oh, I know . . . . . Let’s see, what did they tell me at that sexual assault training . . . .