Mil. R. Evid. 412 limits the extent to which an accused in a sexual assault
case can introduce evidence regarding the alleged victim’s prior
sexual behavior. The rule, however, carves out three exceptions.
Under Mil. R. Evid. 412 (b)(1), the following evidence is admissible:
(A)evidence of specific instances of sexual behavior by the alleged victim
offered to prove that a person other than the accused was the source of
semen, injury, or other physical evidence;
(B)evidence of specific instances of sexual behavior by the alleged victim
with respect to the person accused of the sexual misconduct offered by
the accused to prove consent...; and
(C) evidence the exclusion of which would violate the constitutional rights
of the accused. In analyzing admissibility, the military judge must first
determine whether the evidence is relevant under Mil. R. Evid. 401, and
then apply the balancing test under Mil. R. Evid. 412 (c)(3).
Under Mil. R. Evid. 412 (b)(1)(C), the accused has a right to present
evidence that is relevant, material, and favorable to his defense. United
States v. Banker, 60 M.J. 216 (C.A.A.F. 2004). In applying the rule, the
military judge is not asked to determine whether the preferred evidence
is true, it is for the members to weigh the evidence and determine its
veracity. Id.
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 the case; the extent to which this
issue is in dispute; and the nature of the other evidence in the case
pertaining to this issue. Banker, 60 M.J at 222 (quoting United States
v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A. 1983)). Under the rule, the
term favorable is synonymous with “vital.” Id.
Evidence of an extramarital relationship can be relevant, material, and
favorable to the defense theory of the case when it shows that the alleged
victim would lie to protect the relationship. See generally, Olden v.
Kentucky, 488 U.S. 227 6 (1988); United States v. Williams, 37 M.J. 352(C.M.A. 1993).
Evidence may also be constitutionally required when the alleged victim
has a motive to testify falsely to explain to her boyfriend why she was
with another individual. United States v. Sanchez, 44 M.J. 174, 179 (C.A.A.F. 1996).
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Categories:
- Military Sexual Assault Cases