Rule 412. Requirements for admission

  1. militarydefenselawyers374As a foundational matter the proponent must show: The act is relevant for one of the specified purposes in Rule 412(b); where the act occurred; when the act occurred; AND who was present;
  2. Proponent (typically the defense) must show that its probative value outweighs the danger of unfair prejudice to the alleged victim’s privacy.
    1. United States v. Sanchez, 44 M.J. 174 (1996). As offer of proof failed to identify the significance and theory of admissibility of the victim’s prior sexual behavior, accused was not entitled to hearing on the admissibility of Rule 412 evidence. Judge Everett claims that, where alleged motive is commonly understood and obvious from the facts, it is unnecessary for
      the defense to produce expert testimony. However, where the proffered
      motive is highly speculative and not commonly understood, expert
      testimony is essential to understand the connection between the motive to
      lie and the prior consensual behavior.
    2. United States v. Banker, 60 M.J. 216 (2004). In applying Rule 412, the
      military judge is not asked to determine if the proffered evidence is true.
      Rather, the military judge serves as a gatekeeper by deciding first
      whether the evidence is relevant and next whether it is admissible under
      the Rule. The members weigh the evidence and determine its veracity.
      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 her to properly assess the
      threshold requirement of relevance.
    3. United States v. Zak, 65 M.J. 786 (A. Ct. Crim. App. 2007). The military
      judge abused her discretion in excluding evidence of the victim’s prior
      sexual behavior towards appellant (i.e., a mostly nude massage) because
      she did not believe that the incident occurred. Based on Banker, the
      ACCA reiterated that the military judge only determines whether the
      evidence is relevant and meets one of the exceptions under MRE 412 (b),
      not whether the evidence is true.
  3. Evidence admissible under Rule 412 is still subject to challenge under Rule 403.
    (Note that the 2007 Amendment to 412 (c) specifically states, “Such evidence is
    still subject to challenge under Mil. R. Evid. 403.”) Hence, evidence admissible
    under Rule 412 may nevertheless be excluded under Rule 403.
  4. Procedural Requirements for admission. Rule 412(c) imposes procedural and
    notice requirements that must be implemented before a defense counsel may use
    one of the exceptions. The defense must file a written motion at least five days
    prior to entering a plea. The motion must specifically describe the desired
    evidence and the purpose for which it is being offered. The defense must serve
    the motion on the government, the military judge, and notify the alleged victim.
    The military judge, if necessary, conducts a closed Article 39(a) session. During
    this proceeding both parties may call witnesses, including the alleged victim and
    offer other evidence. The alleged victim must be afforded a reasonable
    opportunity to attend and be heard. The defense is required to establish that its
    evidence satisfies one of the stated exceptions. The military judge must
    determine whether, on the basis of the hearing, the evidence the defense seeks to
    admit is relevant. Evidence admissible under Rule 412 is still subject to
    challenge under Rule 403.

United States v. Banker

United States v. Zak