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Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer


Information on the limitations on cross-examination:

  1. Cross-examination is an important part of the right to confront witnesses. The right to confrontation, however, is not absolute. The courts balance the competing state interest(s) inherent in rules limiting cross-examination with the accused’s right to confrontation.
    1. “The right of cross-examination is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’”
      Chambers v. Mississippi,410 U.S. 284, 295 (1973).
    2. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.
      Davis v. Alaska, 415 U.S. 308, 316 (1974).
    3. “[W]e have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability – even if the defendant would prefer to see that evidence admitted.”
      Crane v. Kentucky, 476 U.S. 683, 690 (1986).
    4. “[T]he right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”
      Chambers,410 U.S. at 295.
    5. [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.”Delaware v. Van Arsdall
      , 475 U.S. 673, 679 (1986).
    6. Although a criminal defendant waived his rights under the Confrontation Clause to object to the admission of hearsay statements because of his misconduct in intimidating a witness, he did not also forfeit his right to cross-examine that same witness.
      Cotto v. Herbert , 331 F.3d 217 (2d Cir. 2003).
  2. Davis v. Alaska, 415 U.S. 308 (1974). The exposure of a witness’s motivation is a proper and important function of cross-examination, notwithstanding state statutory policy of protecting the anonymity of juvenile offenders.
  3. Chambers v. Mississippi,410 U.S. 284, 295 (1973).The defendant was deprived of a fair trial when he was not allowed to cross-examine a witness who had confessed on numerous occasions that he committed the murder. The Court observed that “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and requires that the competing interest be closely examined (citations omitted).
  4. United States v. Williams , 40 M.J. 216 (C.M.A. 1994). Judge erred in precluding defense from cross-examining government witness (and accomplice) to robbery about drug use the night of the robbery. United States v. George
    1. , 40 M.J. 540 (A.C.M.R. 1994). Judge improperly restricted defense cross-examination of government toxicology expert who owned stock in the lab that tested accused’s urine sample pursuant to a government contract. Questions about the expert’s salary were relevant to explore bias. Judge also erred in preventing defense from asking the defense expert about possible sources of contamination of the urine sample.
    2. United States v. Gray,
      40 M.J. 77 (C.M.A. 1994). Accused was charged with indecent acts with nine-year-old daughter of SGT M and sodomy and adultery with SGT M’s wife. Evidence that DHS had investigated the “victim’s” family was improperly excluded. Mrs. M. could have accused Gray of the offenses to divert attention away from her dysfunctional family and the evidence would have corroborated Gray’s claim that he visited Mrs. M’s home in response to requests for help. This violated accused’s right to present a defense.                                              ucmjarticle1201282 Gonzalez & Waddington - Attorneys at Law
  5. United States. v. Everett,
    41 M.J. 847 (A.F.C.M.R. 1994). The military judge improperly prevented the defense counsel from cross-examining a rape victim about her husband’s infidelity and his physical abuse of her.
  6. United States v. Israel, 60 M.J. 485 (2005). In a urinalysis case, the military judge limited the defense ability to cross- examine witnesses regarding the possibility of error in the testing process by precluding the defense from confronting expert witnesses with material impeachment evidence. The CAAF held that the military judge abused his discretion in limiting the ability of the defense to cross-exam the government experts, and that the error was not harmless beyond a reasonable doubt.
  7.   United States v. Carruthers, 64 M.J. 340 (2007). Appellant was convicted of stealing over a million dollars worth of military property from the Defense Reutilization and Marketing Office (DRMO) at Fort Bragg over a three year period. At trial, one of his coconspirators, SFC Rafferty, testified for the government in return for an agreement to plead guilty in federal court to one count of larceny of government property valued over one thousand dollars. Appellant’s civilian defense counsel cross-examined SFC Rafferty at length about his agreement with the government, however the government objected when the defense counsel attempted to delve further into the possible punishments SFC Raferty might receive at his federal trial. The military judge sustained the objection. The issue was whether appellant was denied his Sixth Amendment right to confrontation when the Global Military Justice Reform Blog military judge limited cross- examination of a key government witness regarding the possible sentence under the witness’s plea agreement. (There were two issues granted, the other involved instructions given by the military judge) The holding was: No, sufficient cross-examination was permitted, and the military judge properly identified and weighed the danger of misleading the members under M.R.E. 403. The military judge in this case had already allowed plenty of inquiry into the witness’s bias as a result of his agreement with the government, and merely limited the defense from further questioning on another aspect of the agreement. Since sufficient cross-examination into bias as a result of the plea agreement was permitted, appellant’s Sixth Amendment right to Confrontation was not violated by the military judge’s limitation.
    1. United States v. James,61 M.J. 132 (2005). Before members, appellant pleaded guilty to using and distributing ecstasy. During the sentencing phase of the trial, appellant sought to cross-exam a witness whom the appellant argued had convinced him to try ecstasy. Specifically, appellant sought to cross-examine the witness concerning the specific terms of the witness’ pretrial agreement with the government. The purpose of the cross-examination into the quantum of the agreement would be to establish that the friend had a reason to lie given the benefit of the deal afforded to him (his agreement was for eighteen months confinement from a maximum of fifty-two years). The military judge precluded cross-examination of the specifics of the agreement, but allowed the defense to cross-examine the witness on the existence and general nature of the agreement, the order by the convening authority to the witness to testify, the grant of immunity to the witness, and the considerations of pending clemency. The court found that that military judge did not err by reasonably limiting the scope of cross-examination to avoid the confusion of the issues.
    1. United States v. Savala,70 M.J. 70 (C.A.A.F. 2011). The military judge denied the accused’s initial MRE 412 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 MRE 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 cross- examination.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.
    2. 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. 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 e-mails 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 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 judge 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.  ucmjarticle1201235 Gonzalez & Waddington - Attorneys at Law
    3. 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.
    4. United States v. Banker , 60 M.J. 216 (C.A.A.F. 2004). 70 M.J. 248 (C.A.A.F. 2011).
      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 defenseit is not out weighed 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.
    5. United States v. Roberts , 69 M.J. 23 (C.A.A.F. 2010). In a marital rape and assault case, the CAAF held that the trial judge’s exclusion of evidence of an alleged sexual relationship between the Accused’s wife and another man did not violate the accused’s constitutional right to confrontation. See also, United States v. Smith
      , 68 M.J. 445 (C.A.A.F. 2010)

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