U.S. v. Gaddis, 70 M.J. 248

First Principles: Constitutional Matters: Generally

1. the constitutional interests of a civil defendant and a criminal defendant are distinct

First Principles: Constitutional Matters: Confrontation

1. an accused has a Sixth Amendment right to confront the witnesses against him; it is well settled that the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; a limitation on an accused’s presentation of evidence related to issues such as bias or motive to fabricate may violate an accused’s right to confront witnesses; however, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant
2. once an accused has been allowed to expose a witness’s motivation in testifying, it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point home to the jury

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury
2. trial judges retain wide latitude to impose reasonable limits on cross-examination regarding a witness’s bias or motive to fabricate based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant

Core Criminal Law Subjects: Evidence: Generally

1. 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
2. military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury

Core Criminal Law Subjects: Evidence: Balancing

1. 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
2. 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
3. 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
4. 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)
5. 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
6. military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury
7. 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
8. under balancing test of MRE 412, a court must ask whether appellant’s constitutional right to cross-examination has been violated
9. 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

Core Criminal Law Subjects: Evidence: Prejudice

1. the term unfair prejudice in the context of MRE 403 speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged; MRE 403 addresses prejudice to the integrity of the trial process, not prejudice to a particular party or witness

Core Criminal Law Subjects: Evidence: Relevance

1. 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

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

1. 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
2. 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
3. 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
4. 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
5. 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
6. 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
7. MRE 412 cannot limit the introduction of evidence that is required to be admitted by the Constitution
8. 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)
9. 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
10. 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
11. under balancing test of MRE 412, a court must ask whether appellant’s constitutional right to cross-examination has been violated
12. 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
13. 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
14. 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

Core Criminal Law Subjects: Witnesses: Confrontation

1. 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
2. under balancing test of MRE 412, a court must ask whether appellant’s constitutional right to cross-examination has been violated
3. an accused has a Sixth Amendment right to confront the witnesses against him; it is well settled that the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; a limitation on an accused’s presentation of evidence related to issues such as bias or motive to fabricate may violate an accused’s right to confront witnesses; however, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant
4. once an accused has been allowed to expose a witness’s motivation in testifying, it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point home to the jury

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

1. in determining whether the exclusion of evidence of a witness’s bias or motive to fabricate deprived an accused of a fair trial or an opportunity for cross-examination is whether 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