U.S. v. Washington, 87 M.J. 1

First Principles: Constitutional Matters: Generally

1. in cases of constitutional error, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice

First Principles: Constitutional Matters: Right to Present a Defense

1. an appellant's Sixth Amendment rights can be violated where a military judge's application of a rule infringes upon the weighty interest of appellant to present a defense and is arbitrary or disproportionate to the purposes the rule is designed to serve
2. in this case involving abusive sexual contact, the military judge's instruction directing the panel to disregard appellant's testimony about those surrounding circumstances as well as any testimony from appellant that made any suggestion or reference to the victim's sexual orientation constituted an extraordinary remedy outside the range of reasonable choices supported by the facts or law; the military judge's remedy of striking appellant's testimony violated appellant's Sixth Amendment right to testify in his own defense and the government failed to show such error was harmless beyond a reasonable doubt

Military Justice Personnel: Military Judge: Discretion

1. military judges abuse their discretion (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record; (2) if they use incorrect legal principles; or (3) if their application of the correct legal principles to the facts is clearly unreasonable
2. in this case involving abusive sexual contact, the military judge abused his discretion by striking portions of appellant's direct examination testimony that he concluded implicated the prohibition against "other sexual behavior" under MRE 412(a)(1) (2019 ed.) and "sexual predisposition" under MRE 412(a)(2) because appellant's testimony described surrounding circumstances that were inextricably intertwined with the charged offense and a conversation that did not implicate the victim's sexual predisposition, and therefore, the evidence was outside the scope of MRE 412
3. in this case, the military judge erred and abused his discretion by striking appellant's testimony about the victim's relationship but denied appellant's motion to strike the victim's testimony about the same relationship; where the government uses sexual orientation in a way that implies the impossibility of consent, the defense must be allowed to rebut that inference; to do otherwise denies appellant his right to mount a defense by eliminating appellant's ability to argue mistake of fact as to consent
4. MRE 301(e)(1) grants military judges the discretion to strike a witness's direct examination testimony if the witness invokes the right against self-incrimination during cross-examination

Military Justice Personnel: Military Judge: Instructions

1. in this case involving abusive sexual contact, the military judge's instruction directing the panel to disregard appellant's testimony about those surrounding circumstances as well as any testimony from appellant that made any suggestion or reference to the victim's sexual orientation constituted an extraordinary remedy outside the range of reasonable choices supported by the facts or law; the military judge's remedy of striking appellant's testimony violated appellant's Sixth Amendment right to testify in his own defense and the government failed to show such error was harmless beyond a reasonable doubt

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

1. pursuant to the Privacy Protection for Rape Victims Act (Pub L No 95-540, § 1, 92 Stat 2046, 2046-47 (1978)), the Federal Rules of Evidence (FRE) were amended in 1978 to include FRE 412, which generally bars admission of evidence of a victim's other sexual behavior or sexual predisposition in cases involving sexual misconduct except under limited circumstances; in creating the rule, Congress sought to protect victims of sexual misconduct from being discredited based on unrelated sexual acts or behavior; FRE 412's military counterpart, MRE 412, incorporated the same principles into court-martial procedures
2. MRE 412 provides that evidence of a victim's other sexual behavior or sexual predisposition is generally inadmissible in a proceeding involving an alleged sexual offense; the rule outlines three exceptions where such evidence may be admitted, including evidence of specific instances of sexual behavior by the victim: (1) to prove someone other than the accused was the source of injury or other physical evidence, (2) to prove consent, and (3) evidence the exclusion of which would violate the accused's constitutional rights
3. MRE 412 prescribes procedures for admitting evidence pursuant to one of its exceptions; notably, a military judge must conduct a closed hearing pursuant to Article 39(a), UCMJ, to determine whether the proffered evidence should be admitted under the relevant exception; and if the military judge determines that the evidence falls within one of the exceptions and the probative value of the evidence outweighs its prejudicial effect, then the evidence may be admitted; this balancing test, however, does not apply to evidence that is admissible under the rule's constitutional exception
4. in this GCM for abusive sexual conduct (appellant touching the victim's penis in a hotel room), appellant's testimony concerning uncharged conduct—consensual hugging, lying down together, touching the victim's thigh, and the victim's objection to the touching of his thigh—did not constitute evidence of "other sexual behavior" that was inadmissible under MRE 412 because it described surrounding circumstances that were intrinsic to, not separate from, the charged conduct; although appellant denied touching the victim's penis, he described an escalating, consensual, intimate interaction with the victim that culminated in the charged conduct; appellant's testimony provided context for the victim's allegation that appellant touched his penis without consent; as such, the uncharged conduct was both necessary to complete the story of the hotel room encounter and inextricably intertwined with the evidence regarding the charged offense of touching the victim's penis; accordingly, this evidence was not barred under MRE 412 and the military judge erred in instructing the panel to disregard appellant's testimony about the uncharged conduct
5. an act is intrinsic to the charged sexual conduct when it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense; if the evidence is intrinsic, it is not other bad acts evidence at all, but rather additional facts surrounding the charge at issue; this is because those acts are part of a single criminal episode
6. MRE 412 that generally prohibits evidence of a victim's other sexual behavior or sexual predisposition is consistent with MRE 404(b), the rule regulating the admissibility of character evidence and other crimes or wrongful acts, in treating intrinsic evidence as part and parcel of the charged offense
7. just as intrinsic conduct is not "other" conduct subject to exclusion under MRE 404(b), conduct that is intrinsic to the charged conduct is not "other sexual behavior" subject to exclusion under MRE 412
8. in this case, the uncharged conduct to which appellant testified in this case was intrinsic to the charged conduct and not "other sexual behavior" prohibited by MRE 412; alleged consensual touching that is intrinsic to the charged conduct is precisely the surrounding circumstances that must be considered in determining whether a person gave consent
9. although evidence offered to prove a victim's "sexual predisposition" is generally inadmissible under MRE 412, in this case, appellant's testimony that on the night in question, immediately prior to the charged conduct, he discussed the victim's relationship with his girlfriend and that the victim told him that both men and women had flirted with him did not qualify as sexual predisposition evidence; first, evidence of a relationship, even a romantic or dating relationship, absent more is insufficient to create a reasonable inference of either sexual behavior or sexual predisposition that would trigger MRE 412; second, the victim's statement that men and women have flirted with him in the past did not describe anything he said or did and did not shed light on victim's sexual orientation
10. sexual predisposition as defined by MRE 412 does not apply to evidence that directly refers to sexual activities or thoughts
11. in this case, even if appellant's testimony that before the charged conduct, the victim had told him that both men and women had flirted with him implicated MRE 412, the government's proactive introduction of evidence concerning the victim's heterosexuality opened the door to appellant's introduction of contrary evidence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in cases of constitutional error, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice
2. in this case, (1) where the military judge instructed the panel to disregard appellant's testimony describing the circumstances surrounding the charged conduct as well as any testimony from appellant that made any suggestion or reference to the victim's sexual orientation and (2) where following the military judge's instructions, questions from the panel members showed that they were grappling with the issue over a male-on-male alleged sexual offense where appellant's version of events implied that there was consent to some touching, the military judge's ruling struck crucial testimony for the panel to evaluate the credibility of the victim and appellant and thereby make a determination about consent; under these circumstances, where appellant's core defense to the charged acts came down to a credibility contest between the victim and the accused, striking appellant's testimony severely impacted his ability to present a complete defense, and it also materially affected the panel's ability to assess credibility, thereby prejudicing appellant; as such, the government cannot prove the error was harmless beyond a reasonable doubt

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

1. an appellate court reviews a military judge's decision to admit evidence pursuant to MRE 412 (rule generally prohibiting evidence of a victim's sexual behavior or predisposition) for an abuse of discretion
2. while an appellate court reviews a military judge's findings of fact, the threshold question of whether evidence falls within the scope of MRE 412 is one of law, reviewed de novo
3. in cases of constitutional error, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice