U.S. v. Ellerbrock, 70 M.J. 314

First Principles: Constitutional Matters: Confrontation

1. the exception for constitutionally required evidence in MRE 412(b)(1)(C) includes the accused’s Sixth Amendment right to confrontation; an accused has a constitutional right to be confronted by the witnesses against him, and that right necessarily includes the right to cross-examine those witnesses; in particular, the right to cross-examination has traditionally included the right to impeach, i.e., discredit the witness

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. trial judges retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine a witness 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. no evidentiary rule can deny an accused of a fair trial or all opportunities for effective cross-examination
2. time does not affect all evidence equally

Core Criminal Law Subjects: Evidence: Relevance

1. relevant evidence is any evidence that has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence

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

1. MRE 412 states that evidence offered by the accused to prove the alleged victim’s sexual predispositions, or that she engaged in other sexual behavior, is inadmissible except in limited contexts; 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; one of the exceptions set out in the rule states that the evidence is admissible if the exclusion of it would violate the constitutional rights of the accused
2. the exception for constitutionally required evidence in MRE 412(b)(1)(C) includes the accused’s Sixth Amendment right to confrontation; an accused has a constitutional right to be confronted by the witnesses against him, and that right necessarily includes the right to cross-examine those witnesses; in particular, the right to cross-examination has traditionally included the right to impeach, i.e., discredit the witness
3. generally, evidence must be admitted within the ambit of MRE 412(b)(1)(C) when the evidence is relevant, material, and the probative value of the evidence outweighs the dangers of unfair prejudice; relevant evidence is any evidence that has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; the evidence must also be material, which is a multi-factored test looking 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 the issue is in dispute, and the nature of the other evidence in the case pertaining to that issue; finally, if evidence is material and relevant, then it must be admitted when the accused can show that the evidence is more probative than the dangers of unfair prejudice; those dangers include concerns about harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant
4. in a prosecution for rape and sodomy, evidence of an prior extramarital affair of the alleged victim, including her husband’s reaction to it, had a direct and substantial link to the victim’s credibility, a material fact at issue, where the existence of a prior affair may have established a greater motive for the victim to lie about whether her sexual encounter with appellant was consensual, namely a motive to protect her marriage; because the evidence had a tendency to prove or disprove a substantial issue in question, it was both relevant and material; in addition, the probative value of the evidence of the prior affair outweighed the dangers of unfair prejudice where the victim’s credibility was crucial to appellant’s conviction and there was no dispute as to whether the affair occurred, making it unlikely that the evidence would result in a waste of time or lead to a trial within a trial to determine whether past events actually occurred; as such, the evidence of the prior affair was constitutionally required in this case as an exception to MRE 412(a), and the military judge erred when he prevented appellant from presenting a theory that a prior affair made it more likely that the victim would have lied

Core Criminal Law Subjects: Witnesses: Confrontation

1. the exception for constitutionally required evidence in MRE 412(b)(1)(C) includes the accused’s Sixth Amendment right to confrontation; an accused has a constitutional right to be confronted by the witnesses against him, and that right necessarily includes the right to cross-examine those witnesses; in particular, the right to cross-examination has traditionally included the right to impeach, i.e., discredit the witness
2. an accused is not simply allowed cross-examination that is effective in whatever way, and to whatever extent, the defense might wish; indeed, trial judges retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine a witness 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; but no evidentiary rule can deny an accused of a fair trial or all opportunities for effective cross-examination

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court tests constitutional evidentiary error to see if it was harmless beyond a reasonable doubt - whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction
2. to determine whether an error affecting an accused’s right to cross-examination was harmless beyond a reasonable doubt, an appellate court considers the following nonexclusive, five factors: the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case
3. in a prosecution for rape and sodomy, the erroneous exclusion of constitutionally required evidence of a prior affair of the alleged victim was not harmless beyond a reasonable doubt, where under the circumstances of the case, a reasonable factfinder might have received a significantly different impression of the victim’s credibility had defense counsel been permitted to pursue on cross-examination his theory that the prior affair made it more likely that the victim would have lied; here, the victim’s testimony about consent was crucial to the accused’s conviction, there were significant contradictions in witnesses’ testimony about the level of the victim’s intoxication at the time of the sexual encounter, and the prosecution’s case was not overwhelming; as such, there was a reasonable possibility that the error in the exclusion of the evidence might have contributed to the conviction

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

1. an appellate court reviews a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion; findings of fact are reviewed under a clearly erroneous standard, and conclusions of law are reviewed de novo
2. an appellate court tests constitutional evidentiary error to see if it was harmless beyond a reasonable doubt - whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction
3. to determine whether an error affecting an accused’s right to cross-examination was harmless beyond a reasonable doubt, an appellate court considers the following nonexclusive, five factors: the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case