U.S. v. Roberts, 69 M.J. 23

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. 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
2. 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

Military Justice Personnel: Military Judge: Discretion

1. in this case, to the degree the military judge weighed the credibility of two witnesses (who testified in an MRE 412 evidentiary hearing about a sexual relationship between the victim and another man) in performing his relevancy analysis under MRE 412, he abused his discretion, and his findings were clearly erroneous; in addition, given the low threshold for relevant evidence, the military judge’s conclusion that the testimony of those witnesses was not relevant was also error
2. 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

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

1. 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
2. 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
3. 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
4. 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
5. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. to determine whether an error was harmless beyond a reasonable doubt, an appellate court applies the five-part balancing test articulated by the Supreme Court in Delaware v. Van Arsdall, 475 US 673 (1986): (1) the importance of the witness’s testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and, (5) of course, the overall strength of the prosecution’s case
2. the military judge’s error in a rape trial in excluding the cross-examination of the victim, appellant’s wife, about her relationship with another man and about her phone call to that man immediately after the underlying incident, was harmless beyond a reasonable doubt, where although the victim was the only witness to the underlying rape incident besides appellant, other evidence about the alleged relationship with the man was admitted, where evidence of appellant’s admissions to investigators about the circumstances surrounding the rape and of the victim’s extensive physical injuries corroborated her testimony, and where the government’s case against appellant was strong, especially in light of appellant’s admissions to investigators and to a neighbor

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

1. an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; in doing so, it reviews findings of fact under a clearly erroneous standard and conclusions of law under a de novo standard
2. to determine whether an error was harmless beyond a reasonable doubt, an appellate court applies the five-part balancing test articulated by the Supreme Court in Delaware v. Van Arsdall, 475 US 673 (1986): (1) the importance of the witness’s testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and, (5) of course, the overall strength of the prosecution’s case