Military Rules of Evidence (MRE) 412 – Requirements for admission

Military Defense Lawyers

As 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;

Proponent (typically the defense) must show that its probative value outweighs the danger of unfair prejudice to the alleged victim’s privacy.

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.

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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.

Military Law Sexual Resources:

Types of Courts Martial in the Military Justice System

Advice Concerning Requirements to Register as a Military Sex Offender

Rape in the Military – Article 120 UCMJ

Military Justice System – Overview

MRE 412: Military Rape Shield Law

Investigation of Military Offenses

Court Martial Jurisdiction

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.

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.

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

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