Rule 412. Background History

    1. militarydefenselawyers373It was once not that uncommon for an accused to introduce the sexual history of an alleged victim in order to suggest that she was unchaste, and therefore likely not to be telling the truth when she testified or had consented to the sexual
      contact with the accused. This use of the alleged victim’s sexual history by an accused came under criticism in the late 1970s. As a result, Congress passed the Privacy for Rape Victim Act of 1978, as Federal Rule of Evidence 412. Congress
      revised the rule as part of the Violent Crime Control and Law Enforcement Act of 1994. The military adopted Federal Rule of Evidence 412 under the provisions of Rule 1102 as Rule 412. The rule is intended to shield victims from personal questions about their sexual history that have little if any relevance in the court-martial.
    2. Understanding the Rule: the logical premise behind the rule is that evidence of a
      person’s past sexual conduct rarely is relevant to the question of how a person
      acted sexually on a specific occasion. This logical premise is in conflict with that
      advanced under Rules 413 and 414 (requiring admission of evidence of an
      accused’s past sexual offenses as relevant to the question of an accused’s sexual
      conduct on a specific occasion).
    3. Rule 412 makes specific instances of past sexual behavior of an alleged victim
      generally inadmissible. In specific, relatively rare instances, the government or
      the accused may offer specific acts of conduct by the alleged victim. However,
      reputation and opinion evidence of the past sexual behavior of an alleged victim
      of alleged sexual misconduct appears, under the rule, to be inadmissible. Rule
      412(a) and (b). The Court of Military Appeals has stated, however, “we have
      grave doubts whether Rule 412(a) should be properly construed as an absolute
      bar to the admission of evidence of a prosecutrix’ sexual reputation.” United
      States v. Elvine, 16 M.J. 14 (C.M.A. 1983).
    4. The rule’s protections depend on the status and presence of a victim, rather than
      whether the offense is consensual. United States v. Banker, 60 M.J. 216 (2004).
      The 2007 Amendment clarifies that Rule 412 applies in all sexual offense cases
      where the evidence is offered against a person that can reasonably be
      characterized as a “victim of the alleged sexual offense.” Hence, Rule 412
      applies to nonconsensual as well as consensual offenses, sexual offenses
      specifically proscribed under the UCMJ, federal sexual offenses prosecutable
      under clause 3 of Article 134, and state sexual offenses prosecutable under the
      Federal Assimilative Crimes Act.
    5. Under Rule 412, there are three stated exceptions to the general rule:
      1. Someone else is the source of the evidence: if the trial counsel has
        introduced evidence of semen, injury, or other physical evidence, the
        defense must be allowed to introduce the victim’s past sexual behavior if
        relevant to show another was the source of the evidence. Rule
        412(b)(1)(A).
      2. Evidence of past accused-victim sexual behavior on the issue of consent:
        this may be offered by the accused to prove consent or by the
        prosecution to prove lack of consent. Rule 412(b)(1)(B).

        1. United States v. Jensen, 25 M.J. 284 (C.M.A. 1987). Includes
          acts and statements of intent to engage in intercourse.
        2. United States v. Kelly, 33 M.J. 878 (A.C.M.R. 1991). The
          military judge erred in excluding evidence of an alleged rape
          victim’s flirtatious and sexually provocative conduct. To admit
          evidence of past sexual behavior, the proponent must
          demonstrate that the evidence is relevant, material, and favorable
          to the defense. The prosecutrix’s past sexual conduct met those
          requirements. The rape shield provisions aim to protect the
          victim from harassment and humiliation, but those ends are not
          served by excluding evidence of open, public displays of
          sexually suggestive conduct. Findings and sentence were set
          aside.
      3. Evidence constitutionally required to be admitted: Under Rule
        412(b)(1)(C), the standard is that the evidence must be (1) relevant, (2)
        material, and (3) favorable (defined by case-law as “vital”) to the
        defense. For all practical purposes, this is a test of necessity or vitality in
        military courts-martial. United States v. Banker, 60 M.J. 216 (2004).

          United States v. Savala,70 M.J. 70 (C.A.A.F. 2011). The military judge denied the accused’s initial MRE 412(b)(1)(c) motion to cross examine the victim on a prior, unfounded rape allegation. During direct examination the government opened the door by using it to bolster her reason for delayed reporting the current allegation. The court found it error to deny the accused the ability to cross examine on it after the government opened the door. Denying the accused the right to confront the victim with her previous allegation of rape under MR 412(b)(1)(c) after the government opened the door on direct examination in an effort to bolster her credibility denied the accused his right to confrontation despite the military judge’s earlier ruling to exclude the evidence in pretrial motions. A key component of the Confrontation Clause is the crucible of crossexamination. Davis v. Alaska, 415 U.S. 308, 316-317 (1974). This right becomes even broader when the prosecution opens the door to impermissible evidence during their case in chief. A failure by the intermediate court was not recognizing that witness credibility is an issue for the fact finder. United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011). The C.A.A.F. held that the prior decision in United States v. Banker,see below, was wrong when it held that the victim’s privacy interests should be balanced against an accused’s constitutional rights when determining admissibility under MRE 412(b)(1)(c). While the balancing test itself is not per se unconstitutional, it can be applied in an unconstitutional manner. If evidence is constitutionally required, and it survives MRE 403, an accused will be allowed to confront his accuser with the same regardless of the level of invasive to a victim’s privacy. Despite this holding, the facts of this case did not allow the accused to confront the victim with evidence under MRE 412. The accused in this case did not make a showing that the evidence found in emails alluding to the victim being sexually active was constitutionally required under MRE 412(b)(1)(c). The military judge did allow cross-examination on the e-mails without allowing questions into the content by using MRE 611. While an accused has a right to confront his accuser, that right is not without limitations. Davis v. Alaska, 415 U.S. 308, 316 (1974). The Confrontation Clause protects a person’s rights to a fair cross-examination of a witness to establish bias or motive to lie. That cross-examination can be curtailed when the probative value is outweighed by the danger of unfair prejudice. These dangers of unfair prejudice include harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. in Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986). Here, the judge had already determined that there was insufficient probative value in the e-mails to rise to the level of constitutionally required evidence. As such, he may be allowed an opportunity to expose her motive to lie, but not in every possible manner. The military judge placed limits on the inquiry, and CAAF held that the judg had admitted sufficient evidence to establish TE’s motive to lie. Excluding the sexual nature of the worrisome e-mails did not violate the constitutional rights of the accused. The court did not conduct any MRE 403 analysis.
      1. United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). The
        C.A.A.F. held that in an Article 120 case it was error for the
        military judge to exclude evidence that the victim had an extra
        marital affair two years prior. When she disclosed the earlier
        affair to her husband, he became enraged and kicked down the
        wife’s lover’s door. The court found that the military judge
        prevented Ellerbrock from presenting a theory that a previous
        affair made it more likely that CL would have lied in this case;
        that it was a fair inference that a second affair would be more
        damaging to CL’s marriage than a single event; and there was
        evidence in the record to support this inference, particularly the
        evidence that the husband had had a prior violent reaction when
        learning about CL’s affair. The court found that the proffered
        evidence had a direct and substantial link to CL’s credibility, and
        her credibility was a material fact in the case. The probative
        value of the evidence was high because the other evidence in the
        case was so conflicting, and was not outweighed by other
        concerns. The court did not conduct any MRE 403 analysis.
      2. United States v. Williams, 37 M.J. 352 (C.M.A. 1993). The
        military judge denied the defense motion for a rehearing based
        on newly discovered evidence concerning the victim’s
        credibility. The evidence suggested a motive to fabricate, and
        showed that the government expert based his opinion testimony
        on her “deceitful and misleading” information. Since the
        evidence was relevant, material and favorable to the defense, it
        was “constitutionally required to be admitted.”
        United States v. Greaves, 40 M.J. 432 (C.M.A. 1994). The
        military judge properly prevented accused from testifying that he
        knew that rape victim was a hostess at a Japanese bar and
        dressed provocatively. The testimony was not relevant where
        the victim was semi-conscious and where the accused was
        allowed to testify about circumstances which allegedly led him
        to believe the victim consented.
        United States v. Harris, 41 M.J. 890 (A. Ct. Crim. App. 1995).
        Evidence of a victim’s prior sexual activity as a prostitute was
        constitutionally required to be admitted where defense theory
        was that victim agreed to sexual intercourse in expectation of
        receiving money for a bus ticket to Cleveland, and was
        motivated to retaliate by alleging rape only after accused called
        her a “skank bitch.” See also United States v. Saipaia, 24 M.J.
        172 (C.M.A. 1987), cert. denied, 484 U.S. 1004 (1988).
      3. United States v. Buenaventura, 45 M.J. 72 (1996). Evidence of
        sexual abuse of an eight-year-old victim by the grandfather, and
        expert testimony regarding “normalization” – replacing abusive
        person (grandfather) with friendly person (accused) in recalling
        the abuse – was constitutionally required to be admitted. But see
        United States v. Gober, 43 M.J. 52 (1995); United States v.
        Pagel, 45 M.J. 64 (1996).
    1. The victim’s past sexual history must be relevant to the defense’s theory
      before it is admissible under a Constitutionally-required standard.

      1. United States v. Velez, 48 M.J. 220 (1998). Accused was
        convicted of rape. The CAAF noted that the defense theory of
        the case was that the contact never happened, so even if the
        victim was promiscuous, it didn’t matter under the defense
        theory.
      2. United States v. Datz, 59 M.J. 510 (C.G. Ct. Crim. App. 2003).
        Affirming appellant’s rape conviction, the court held that
        evidence of the victim’s previous sexual encounters with another
        servicemember was too speculative and not commonly viewed as
        being relevant.
      3. United States v. Banker, 60 M.J. 216 (2004). Abrogated by
        United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) (holding
        that the prior decision in United States v. Banker was wrong
        when it held that the victim’s privacy interests should be
        balanced against evidence determined to be constitutionally
        required before allowing it into evidence). In Banker, the
        C.A.A.F. held that evidence proffered under the constitutionally
        required exception to M.R.E. 412(a) is admissible only if the
        evidence is 1) relevant; 2) material; and 3) favorable to the
        defense AND it is not outweighed by the victim’s privacy. This
        balancing test, applied in this manner, is unconstitutional under
        United States v. Gaddis. While other sections of Banker may be
        useful in helping counsel determine relevant and material, if
        evidence is found constitutional, the victim’s privacy cannot be
        used to exclude it regardless of the significance.