Exceptions to MRE 412

In general there are three exceptions to Rule 412:

  1. military-defense-lawyersEglin_AFB_First_-35_Lightning_Arrives_at_Eglin_AFB_Florida-2Someone else is the source of the evidence: if the prosecution hopes to introduce evidence of semen, injury or other physical evidence, the defense must be able to introduce evidence showing that another person could be the source of the evidence. Rule 412(b)(1)(A).
  2. Evidence of past sexual behavior on the issue of consent: this may be offered by either the prosecution or defense to prove consent or lack of consent. Rule 412(b)(1)(B)
    1. United States v. Jensen, 25 M.J. 284 (C.M.A. 1987). Acts and statements to show intent to engage in intercourse are admissible.
    2. United States v. Kelly, 33 M.J. 878 (A.C.M.R 1991) Excluding evidence of an alleged rape, along with the victims alleged flirtatious and sexually provocative conduct was an error on behalf of the judge. The accused must show that the evidence is relevant, material, and favorable to the defense in order to be admitted. The victim’s past sexual conduct met those requirements. The findings and sentence were set aside once the court found that the rape shield law was meant to protect the victim from harassment and humiliation, not exclude evidence of sexually forceful behavior.
  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 to the defense. According to United States v. Banker, supra, this is a test for necessity or vitality in the military courts-marshal.
    1. In United States v. Williams, 37 M.J. 352 (C.M.A. 1993), the military judge denied a defense motion to for a rehearing based on newly discovered evidence that went directly to the victim’s credibility as a witness. The evidence suggested that the victim had a motive to fabricate testimony and showed that a major prosecution expert witness based his opinion based on “deceitful and misleading” evidence put forth by the victim. Since the evidence was relevant, material, and favorable to the defense it was constitutionally required to be admitted.
    2. In United States v. Grey, 40 M.J. 77 (C.M.A. 1994), evidence of a child’s sexual contact with another child was admissible to show that the child may have initiated the sexual contact that was the subject of the accusation.
    3. In United States v. Harris, 41 M.J. 890 (Army Ct. Crim. App. 1995), evidence of the victim’s history as a prostitute was admissible to prove that the sexual contact was consensual in exchange for money for a bus ticket and that the accusation was only made after the accused called the victim a rude name.
  4. Note: The victim’s past history must be relevant to the accused’s theory before it becomes admissible
    1. United States v. Velez, 48 M.J. 220 (1998). The defendant was accused of rape and maintained that it had never happened. Introducing evidence of the victim’s past sexual history was inappropriate because it had no bearing on the defense.
    2. United States v. Grant, 49 M.J. 295 (1998). The sexual orientation of the victim has no bearing on the issue of consent.
    3. United States v. Coates, 203 CCA Lexis 124 (N-M Ct. Crim. App. 2003). In a rape case where the accused allegedly raped the intoxicated victim in her barracks, the allegation that she may have once had sex with a stranger was inadmissible when the accused could offer no explanation to why it was relevant.

MRE 412