U.S. v. Banker, 60 M.J. 216

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. this Court has never recognized the ability of a child under the age of 16 to legally consent to sexual intercourse or sodomy

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. this Court has never recognized the ability of a child under the age of 16 to legally consent to sexual intercourse or sodomy

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. 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
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
11. 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
12. 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
13. 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. this Court reviews a military judge’s decision to exclude evidence under MRE 412 for an abuse of discretion