U.S. v. Erikson, 76 M.J. 231

First Principles: Constitutional Matters: Confrontation

1. in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the right to confrontation includes the right of a military accused to cross-examine adverse witnesses; uncovering and presenting to court members a witness 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
2. while the right to cross-examination is broad, it is not unlimited in scope; nor can it be conducted without due regard for applicable rules of evidence; the scope of cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness; further, a military judge has broad discretion to impose reasonable limitations on 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

Military Justice Personnel: Military Judge: Discretion

1. a military judge has broad discretion to impose reasonable limitations on 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

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

1. evidence of an alleged victim’s prior accusation of sexual assault is only admissible if the prior accusation is shown to be false; this is true whether the defense seeks to introduce the evidence as an exception to MRE 412, or to show the alleged victim’s modus operandi, motive, or character evidence for lack of truthfulness
2. 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
3. one of the exceptions to the general rule outlined in MRE 412 is that evidence offered by the accused to prove that the alleged victim engaged in other sexual behavior, or to prove the alleged victim’s sexual predisposition, may be admissible at trial if necessary to protect an accused’s Sixth Amendment right to confrontation
4. appellant has the burden under MRE 412 of establishing his entitlement to any exception to the prohibition on the admission of evidence offered to prove that any alleged victim engaged in other sexual conduct; to establish that the excluded evidence would violate the constitutional rights of the accused, an accused must demonstrate that the evidence is relevant, material, and favorable to his defense, and thus whether it is necessary; the term favorable as used in both Supreme Court and military precedent is synonymous with vital
5. in this case, the defense did not meet its burden of demonstrating that the victim’s prior allegation of sexual assault was false; for such evidence to be admissible under an MRE 412 exception or for it to be admissible under any other rationale such as evidence of a modus operandi, motive, or character evidence for lack of truthfulness, appellant was required to establish the falsity of the previous sexual assault accusation; the military judge heard the testimony of witnesses to the prior incident, was in the best position to determine the credibility of the witnesses, and concluded that the defense failed to establish the falsity of the evidence; neither a summary court-martial acquittal regarding the victim’s prior allegation of sexual assault nor a denial by the prior accused as to the assault was not dispositive of the falsity of the allegation, where the judge found the victim more credible than her accuser; accordingly, the military judge did not abuse his discretion in excluding it

Core Criminal Law Subjects: Witnesses: Confrontation

1. in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the right to confrontation includes the right of a military accused to cross-examine adverse witnesses; uncovering and presenting to court members a witness 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
2. while the right to cross-examination is broad, it is not unlimited in scope; nor can it be conducted without due regard for applicable rules of evidence; the scope of cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness; further, a military judge has broad discretion to impose reasonable limitations on 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

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; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard is strict, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous