412 Response Motion

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IN A GENERAL COURT-MARTIAL OF THE
UNITED STATES ARMY TRIAL JUDICIARY
FIFTH JUDICIAL CIRCUIT
)
UNITED STATES OF AMERICA )
) SPECIAL VICTIM COUNSEL
v. ) RESPONSE TO DEFENSE MOTION
) TO ADMIT EVIDENCE UNDER
. ) M.R.E. 412
, United States Army )
) 25 January 2015
)
APO AE 09034 )
)
)
______________________________________________________________________________
The Special Victim Counsel submits this Response on behalf of and
respectfully requests that the Court deny in part the Defense Motion to Admit Evidence under
M.R.E. 412. Oral argument is requested.
RELIEF REQUESTED
The Special Victim Counsel respectfully requests that the Court deny in part the Defense
Motion to Admit Evidence under M.R.E. 412.
BURDEN AND STANDARD OF PROOF
The Defense, as the moving party, bears the burden of proof by a preponderance of the
evidence. R.C.M. 905(c)(1), 905 (c)(2)(A).
FACTS
reported a string of sexual assaults suffered at the hands of the accused.
Between 12 June 2014 and 24 October 2014,
The accused committed the first sexual assault on second day in Germany
when borrowed his phone to call home. (Article 32 Transcript of , pg 6).
The accused had been introduced to as a person she could go to for assistance
(Article 32 Transcript of , pg 8).
The accused would enter room under false pretense (Article 32
Transcript of , pg 15, 58), or through her shared bathroom when wouldn’t
open the door (Article 32 Transcript of , pg 55-6). The accused would also enter the
room uninvited after entered (Article 32 Transcript of , pg 59)

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never invited the accused into her room or hung out with him socially unless
it was in a group setting (Article 32 Transcript of , pg 21-2, 35). never
texted the accused to come to her room (Article 32 Transcript of , pg21-2); nor did
ever have consensual sex with the accused (Article 32 Transcript of , pg
52).
would, at times, be under the influence of alcohol during these assaults
(Article 32 Transcript of , pg 21, 34, 43).
had been raped at 16 and because of the nature of the assault she felt fighting
the accused would cause the accused to “snap” and make the assault worse Article 32 Transcript
of , pg 42).
As a result of a pre-trial investigation under Article 32, UCMJ, charges were preferred on
15 January 2015.
LAW
Mil. R. Evid. 403
Mil. R. Evid. 412
United States v. Key, 71 MJ 566 (N.M.C.C.A. 2012)
United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011)
United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011)
United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004)
Anthony Joseph Hart v. Blaine Lafler, U.S. District 2007 (E.D. Mich, June 30, 2008)
Boyd v. Roberts, U.S. Court of Appeals for the 10th Circuit (2005)
United States v. Carter, 47 M.J. 395 (C.A.A.F. 1998)
United States v. Moulton, 47 M.J. 227 (C.A.A.F. 1997)
ARGUMENT
We do not think that the direct observations by on or about the second
week of September 2014, and on or about 20 October 2014, fall under MRE 412 and
therefore do not object to Defense’s motion dated 19 February 2014, to admitting this evidence.
However, testimony regarding the conversation with on or about the
second week of September 2014 is being offered by Defense to provide a blanket statement of
consent and is barred under MRE 412. No exception applies. Furthermore, the testimony of
regarding the “flirting and touching he witnessed on 20 October 2014 is speculative in
nature and also barred under MRE 412.
MRE 412 is “intended to shield victims of sexual assaults from the often embarrassing
and degrading cross-examination and evidence presentations common to [sexual offense
prosecutions].” United States v. Ellerbrock, 70 M.J. 314, 317-318 (C.A.A.F. 2011) (quoting
United States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F. 2011)). “Under MRE 412, not only is

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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.” United
States v. Banker, 60 M.J. 216, 221 (C.A.A.F. 2004). Additionally, Banker stated that the
applicability of MRE 412 hinges on whether the subject of the proffered evidence was the victim
of the alleged sexual misconduct and not on whether the alleged sexual misconduct was
consensual or nonconsensual . As in the case at bar, testimony regarding her
conversation with falls squarely within MRE 412 because it would result in an undue
examination and cross examination of the victim’s sexual history.
If the evidence is covered by MRE 412, as it is here, to be admitted it must fall within an
exception. Based on the following, Defense has failed to meet this requirement.
To overcome the prohibition of MRE 412 and satisfy its burden, the Defense must
establish an adequate foundation demonstrating constitutionally required relevance, such as
“testimony proving the existence of a sexual relationship that would have provided significant
evidence on an issue of major importance to the case.” United States v. Carter, 47 M.J. 395, 396
(C.A.A.F. 1998) (quoting United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997)).
Necessarily, with respect to MRE 412(b)(1)(C), “if a military judge determines the evidence is
not constitutionally required, the military judge must exclude the evidence.” Gaddis 70 M.J. at
256 (C.A.A.F. 2011) (emphasis in original).
Here, the analysis of the Defense Motion to Admit Evidence under MRE 412 fails to
demonstrate why this evidence is constitutionally required. In Banker, CAAF held that the
military judge did not abuse his discretion in refusing to admit victim testimony sought by the
Defense where “a cursory argument did not sufficiently articulate how the testimony reasonably
established a motive to fabricate.” Banker, 60 M.J. at 225 (C.A.A.F. 2004).
The case at bar is similar to Banker in that the Defense here has failed to articulate facts
showing how the evidence at issue would create a bias or motive to lie about the alleged previous
sexual encounters. Nor has Defense elaborated as to how that bias or motivation to lie, to the
extent it exists, is relevant to the case at bar.
Defense argues that “this testimony is vital to the defense because it is eyewitness
testimony of the alleged crimes that will directly impeach the credibility and truthfulness of the
alleged victim.” While not controlling law, Anthony Joseph Hart v. Blaine Lafler, U.S. District
2007 (E.D. Mich, June 30, 2008) is persuasive because it deals with the same issue as the case at
bar. In Hart, the Eastern District of Michigan ruled that the rape shield law, which mirrors
MRE 412, is applicable to impeachment evidence. Here the evidence of the victim’s prior sexual
activity was being offered to impeach the victim, as it was in Hart. The court found “a rape
shield statute is designed to protect victims of rape from being exposed at trial to harassing or
irrelevant questions.” Anthony Joseph Hart v. Blaine Lafler, U.S. District 2007 (E.D. Mich, June
30, 2008). Therefore, because courts retain wide latitude to limit cross –examination, based on
concerns that echo those stated in MRE 412, such as harassment, prejudice, and confusion of the
issues, this denial does not violate the accused constitutional right of confrontation.

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Additionally, the evidence the Defense seeks to introduce is speculative in nature. Again,
although Boyd v. Roberts, U.S. Court of Appeals for the 10th Circuit (2005) is not controlling
law, it is persuasive in nature because it addresses the same issues as in the case at bar. In Boyd,
the Accused wished to introduce evidence of the victim’s sexual history, to include testimony of
witnesses who had occasionally dropped off the accused at night and picked him up in the
morning from the victim’s apartment, as well as testimony that the witness had once seen the
victim doing Boyd’s hair. This evidence was found to be irrelevant and speculative, and
therefore inadmissible.
In the case at bar, the testimony of regarding the “flirting and touching”
between and fails to indicate sexual involvement or establish a
distinctive sexual encounter that mirrors the allegations against that would tend to
prove consent. Therefore, the evidence is speculative and irrelevant in nature and therefore falls
under MRE 412’s rule of exclusion.
Here, there is absolutely nothing that indicates the evidence the Defense seeks to admit is
constitutionally required. Because no exception to MRE 412 applies in this instance, MRE 412,
as a rule of exclusion, necessarily operates to exclude the evidence sought by the Defense
regarding testimony regarding the conversation with on or about the
second week of September 2014 and the testimony of regarding the “flirting and
touching he witnessed on or about 20 October 2014.
Assuming arguendo that one of the exceptions to MRE 412 does apply, the evidence
sought is still inadmissible under MRE 403. Allowing the Defense to inquire as to conversation
between and and the “flirting and touching” witnessed by
between and , would focus the fact-finder on the intimate details of
life instead of on what actually took place between and the accused. Such a
shift would result in unfair prejudice, confuse the issues, and mislead the members, the very
things that MRE 403 is designed to prevent.
The Special Victim Counsel also objects to the Defense calling as a witness
for the purposes of this motion. Requiring the Defense to question in relation to
MRE 412 evidence would frustrate the very purpose of the rule. Furthermore, the Defense has
already had an opportunity to inquire as to these theories at the Article 32 and MRE 513/514
motions hearings. In short, giving the Defense yet another opportunity to inquire as to clearly
inadmissible MRE 412 evidence would serve only to unduly harass and embarrass .
BRIDGET A. KARNS
CPT, JA
Special Victim Counsel

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