Military Rule Of Evidence 412
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 determine whether the proferred 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.
Important Cases: Relevance of Extramarital Relationships (Lying to Protect a Relationship)
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).
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.
United States v. Ellerbrock, 70 M.J. 314.
Appellant, who was charged with rape, was entitled to cross-examine the
victim, his wife, about her relationship with another man and about her
phone call to that man immediately after the underlying rape incident,
where appellant wanted to establish that the relationship with the man
was a motive for the victim to fabricate the rape allegation and the proposed
line of questioning did not involve allegations of sexual behavior that
would implicate the exclusionary rule of MRE 412; cross-examination of
this man may have established a motive for the victim to fabricate her
allegation of rape, and the military judge erred in excluding this cross-examination.
United States v. Roberts, 69 M.J. 23
Even assuming that evidence that the victim was previously involved in
consensual sexual relations with an enlisted member was relevant in the
prosecution of appellant for sexual misconduct with the victim, the confrontation
clause did not entitle him to cross-examine the victim about that prior
relationship; although the victim’s credibility was in dispute,
knowledge of the exact nature of her indiscretion in relation to the other
issues in the case was not important where the military judge allowed
appellant to present a fairly precise and plausible theory of bias, i.e.,
that the victim lied to preserve a secret which if revealed could have
an adverse impact on her military career, including possibly disciplinary
action under the UCMJ; while the victim’s credibility was in contention,
it is unclear why the lurid nuances of her sexual past would have added
much to appellant’s extant theory of fabrication.
United States v. Smith, 68 M.J. 445.
Previous False Accusations of Sexual Assault
Evidence of an alleged victim's prior accusation of sexual assault is only
admissible if the prior accusation is shown to be false. It can also be
admissible under M.R.E. 404 (b) as modus operandi, motive, or character
for truthfulness evidence.United States v. Erikson, 76 M.J. 231.
Lying to Protect a Reputation
The prosecution opened the door to cross-examination of the victim with
respect to a prior complaint of sexual assault that the defense contended
was fabricated to protect her reputation, where the prosecution introduced
evidence of the victim’s prior complaint to bolster her credibility
with respect to the reasons for her delayed reporting of the charged offense,
thereby benefiting the prosecution.
United States v. Savala, 70 M.J. 70.
Procedure for Admissibility under Banker
United States v. Banker, 60 MJ 216
MRE 412, the rape shield evidence rule precluding admission of evidence
of the sexual history of sexual assault victims, was intended to safeguard
the alleged victim against the invasion of privacy and potential embarrassment
that is associated with public disclosure of intimate sexual details and
the infusion of sexual innuendo into the fact-finding process; by affording
victims protection in most instances, the rule encourages victims of sexual
misconduct to institute and to participate in legal proceedings against
alleged offenders; MRE 412 was intended to protect victims of sexual offenses
from the degrading and embarrassing disclosure of intimate details of
their private lives while preserving the constitutional rights of the
accused to present a defense).
MRE 412 is not limited to nonconsensual sexual offenses, but applies to
proceedings involving alleged sexual misconduct; following the 1998 amendments
to MRE 412, the applicability of MRE 412 hinges on whether the subject
of the proffered evidence was a victim of the alleged sexual misconduct
and not on whether the alleged sexual misconduct was consensual or nonconsensual.
In the trial of the accused for sexual misconduct involving a 14-year-old
babysitter, the proffered testimony of the accused’s son that the
babysitter sexually molested him fell within the scope of MRE 412 because
the babysitter was a victim of the accused’s sexual misconduct where
due to her age, she was not capable of legally consenting, notwithstanding
any factual consent.
The purpose of the MRE 412 rape shield law is to protect alleged victims
of sexual offenses from undue examination and cross-examination of their
sexual history; MRE 412 is a rule of exclusion; MRE 412 is broader in
its reach than its federal counterpart; under MRE 412, not only is evidence
of the alleged victim’s sexual propensity generally inadmissible,
evidence offered to prove an alleged victim engaged in other sexual behavior
is also generally excluded.
In order to overcome the exclusionary purpose of MRE 412, an accused must
demonstrate why the general prohibition in MRE 412 should be lifted to
admit evidence of the sexual behavior of the victim; in particular, the
proponent must demonstrate how the evidence fits within one of the exceptions
to the rule; in light of the important and potentially competing constitutional
and privacy claims incumbent in MRE 412, the rule requires a closed hearing
to consider the admission of the evidence; among other things, the victim
must be afforded a reasonable opportunity to attend and be heard at this
closed hearing.
Based on the evidence presented at the closed hearing held under MRE 412,
the military judge applies a two-part process of review to determine if
the evidence is admissible; first, pursuant to MRE 401, the judge must
determine whether the evidence is relevant; evidence is relevant if it
has any tendency to make the existence of any fact more probable or less
probable than it would be without the evidence; where the military judge
determines that evidence is relevant, the judge employs a second analytic
step by conducting a balancing test to determine whether the probative
value of such evidence outweighs the danger of unfair prejudice; the accused
has a right to put on testimony relevant to his theory of defense; however,
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.
Although a two-part relevance-balance analysis is applicable to all three
of the enumerated exceptions to MRE 412, evidence offered under the constitutionally
required exception is subject to distinct analysis; while the relevancy
portion of this test is the same as that employed for the other two exceptions
of the rule, if the evidence is relevant, the military judge must then
decide if the evidence offered under the constitutionally required exception
is material and favorable to the accused’s defense, and thus whether
it is necessary; 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 this case, the extent to which
this issue is in dispute, and the nature of the other evidence in the
case pertaining to this issue; after determining whether the evidence
offered by the accused is relevant and material, the judge employs the
MRE 412 balancing test in determining whether the evidence is favorable
to the accused’s defense; while the term favorable may not lend
itself to a specific definition, this Court believes that based on Supreme
Court precedent and the Court’s own rulings in this area, the term
is synonymous with vital.
Although the MRE 412 balancing test bears resemblance to the MRE 403 balancing
test, the two tests are distinct; the balancing test contained in MRE
412 differs in two critical respects from that contained in MRE 403; first,
under the MRE 403 balancing test, a presumption of admissibility exists
since the burden is on the opponent to show why the evidence is inadmissible;
MRE 403 is a rule of inclusion; in contrast, MRE 412 is a rule of exclusion;
the burden of admissibility shifts to the proponent of the evidence to
demonstrate why the evidence is admissible; second, MRE 403 is generally
applicable to evidence offered by either the government or the accused;
to exclude evidence under MRE 403, the military judge must find substantial
prejudice leading to one of a number of enumerated harms, including unfair
prejudice to the accused; MRE 412’s general rape shield rule is
applicable to both parties; however, in contrast to MRE 403, the balancing
test that MRE 412 establishes for exceptions to the general rule contemplates
evidence that the accused seeks to offer; thus, MRE 412 requires the military
judge to determine on the basis of the hearing that the evidence that
the accused seeks to offer is relevant and that the probative value of
such evidence outweighs the danger of unfair prejudice; it would be illogical
if the judge were to evaluate evidence offered by the accused for unfair
prejudice to the accused; rather, in the context of the rape shield rule,
the prejudice in question is, in part, that to the privacy interests of
the alleged victim; as a result, when balancing the probative value of
the evidence against the danger of unfair prejudice under MRE 412, the
military judge must consider not only the MRE 403 factors such as confusion
of the issues, misleading the members, undue delay, waste of time, needless
presentation of cumulative evidence, but also prejudice to the victim’s
legitimate privacy interests.
MRE 412 does not wholly supplant MRE 403 since the military judge may exclude
evidence on MRE 403 grounds even if that evidence would otherwise be admissible
under MRE 412.
In applying MRE 412, the judge is not asked to determine if the proffered
evidence is true; it is for the members to weigh the evidence and determine
its veracity; rather, the judge serves as gatekeeper deciding first whether
the evidence is relevant and then whether it is otherwise competent, which
is to say, admissible under MRE 412; while evidence of a motive to fabricate
an accusation is generally constitutionally required to be admitted, the
alleged motive must itself be articulated to the military judge in order
for him to properly assess the threshold requirement of relevance.
Rule 412. Sex offense cases; relevance of alleged victim’s sexual
behavior or sexual predisposition
(a) Evidence generally inadmissible
The following evidence is not admissible in any proceeding involving an
alleged sexual offense except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other
sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions
(1) In a proceeding, the following evidence is admissible, if otherwise
admissible under these rules:
(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 or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights
of the accused.
(c) Procedure to determine admissibility
(1) A party intending to offer evidence under subsection (b) must--
(A) file a written motion at least 5 days prior to entry of pleas specifically
describing the evidence and stating the purpose for which it is offered
unless the military judge, for good cause shown, requires a different
time for filing or permits filing during trial; and
(B) serve the motion on the opposing party and the military judge and notify
the alleged victim or, when appropriate, the alleged victim's guardian
or representative.
(2) Before admitting evidence under this rule, the military judge must
conduct a hearing, which shall be closed. At this hearing, the parties
may call witnesses, including the alleged victim, and offer relevant evidence.
The alleged victim must be afforded a reasonable opportunity to attend
and be heard. In a case before a court-martial composed of a military
judge and members, the military judge shall conduct the hearing outside
the presence of the members pursuant to Article 39(a). The motion, related
papers, and the record of the hearing must be sealed and remain under
seal unless the court orders otherwise.
(3) If the military judge determines on the basis of the hearing described
in paragraph (2) of this subsection that the evidence that the accused
seeks to offer is relevant for a purpose under subsection (b) 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 under
this rule 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 Mil. R. Evid. 403.
(d) For purposes of this rule, the term “sexual offense” includes
any sexual misconduct punishable under the Uniform Code of Military Justice,
federal law or state law. “Sexual behavior” includes any sexual
behavior not encompassed by the alleged offense. The term “sexual
predisposition” refers to an alleged victim's mode of dress, speech,
or lifestyle that does not directly refer to sexual activities or thoughts
but that may have a sexual connotation for the factfinder.
(e) A “nonconsensual sexual offense” is a sexual offense in
which consent by the victim is an affirmative defense or in which the
lack of consent is an element of the offense. This term includes rape,
forcible sodomy, assault with intent to commit rape or forcible sodomy,
indecent assault, and attempts to commit such offenses.