GENERAL
COURT-MARTIAL
UNITED
STATES COAST GUARD
UNITED
STATES
v.
WEBSTER
M. SMITH, CADET, U.S. COAST GUARD
FILED
UNDER SEAL[*]
MEMORANDUM
ORDER AND OPINION
M.R.E. 413
[sic] EVIDENCE CADET [SR]
The Defense
has provided notice that it intends to introduce evidence of specific instances
of sexual behavior involving then Cadet, now Ensign [SR]. This alleged sexual
behavior is the subject of the secret that Cadet Smith is charged with
threatening to expose in Specification I of Additional Charge II. The
Government seeks to bar the introduction of such evidence pursuant to M.R.E.
412. At the Article 39(a) session held on 23 May 2006, Ensign [SR] did not
testify because she invoked her right under Article 31(b) to consult with an
attorney. The accused testified as to the content of his conversations with
Cadet [SR] on this subject. The Defense also submitted a written statement
dated 15 February 2006 that Cadet [SR] provided to the Coast Guard
Investigative Service.
FINDINGS OF FACT
During the
summer training program at the start
of their first
class year, Cadet Smith and Cadet [SR] were both assigned to patrol boats that
moored at Station Little Creek. Both lived in barracks rooms at the Station. In
May 2005, Cadet Smith approached Cadet [SR] to inform her that he was hearing
rumors from the enlisted personnel assigned to the Station that she had
a sexual
encounter with an enlisted member assigned to the Station. Cadet [SR] told him
that this was true, but that it was not a consensual encounter. Cadet Smith
then informed the enlisted personnel who were spreading the rumors that the
conduct was not consensual.
On or about 19
October 2005, Cadet Smith again approached Cadet [SR]. He told her that he had
remained in contact with some of the enlisted personnel assigned to Station
Little Creek and that the rumors surrounding her sexual encounter with the
enlisted man had continued. This time she told him that the incident with the
enlisted man had been a consensual encounter and that scope of the encounter
had been greater than she had previously described.
At the Article
32 hearing, Cadet [SR] merely stated that she had confided a secret to Cadet
Smith.
In her 15
February 2006 statement, she merely stated that a situation occurred which led
to rumors. On both occasions, she went on to state that on October 19th, she
was concerned enough that Cadet Smith would expose this secret that she agreed to pose for a picture with him
in which both of them were nude, and later that night allowed him to perform
cunnilingus on her then she performed fellatio on him.
CONCLUSIONS OF LAW
1. Generally, evidence that an alleged victim of
a sexual offense engaged in other sexual behavior or evidence of the alleged
victim’s sexual predisposition is not admissible. M.R.E. 412(a). There are
three exceptions to this general rule, but only one may be relevant here:
evidence of the sexual behavior of the victim is admissible if excluding the
evidence would violate the constitutional rights of the accused. M.R.E.
412(b)(1)(C). This exception protects the accused’s Sixth Amendment right to
confront witnesses and Fifth Amendment right to a fair trial. United States
v. Banker, 60 M.J. 216, 221 (2004). In other words, the accused has a right
to produce relevant evidence that is material and favorable to his defense. Id.
Evidence is relevant if it tends to make the existence of any fact more or
less probable than it would be without the evidence. M.R.E. 401. Assuming these
requirements are met, the accused must also demonstrate that the probative
value of the evidence outweighs the danger of unfair prejudice. M.R.E.
412(c)(3). In this context, the unfair prejudice is, in part, to the privacy
interests of the alleged victim. Banker, 60 M.J. at 223. M.R.E. 412 is a
legislative recognition of the high value we as a society place on keeping our
sexual behavior private.
2. The Defense
offered several theories of why this evidence is admissible. First, the Defense
wanted to introduce this evidence to impeach the credibility of Ensign [SR]
when she testifies. The general rule is that a witness’ credibility may be
attacked in the form of an opinion or by reputation concerning the witness’
character for truthfulness. M.R.E. 608(a). Specific instances of conduct of
witness may be admitted, at the discretion of the military judge, if probative
of truthfulness. I decline to exercise that discretion in this case because I
believe that, under these circumstances, the probative value of this evidence
is substantially outweighed by the danger of unfair prejudice. Then Cadet [SR]
was under no duty to be completely forthcoming with Cadet Smith concerning her
private life, particularly under these circumstances since her rumored conduct
would be in violation of Coast Guard regulations and could subject her to
disciplinary action or other adverse consequences. More important, despite any
limiting instruction, members might consider this evidence less for its
tendency to prove Ensign [SR]’s character for truthfulness than for its
tendency to prove that she is a bad person. Finally, conflicting testimony on
this point from Ensign [SR] and Cadet Smith could easily sidetrack members from
testimony regarding the charged offenses which the member’s should be focusing
on.
3. The Defense also argued that the members must
know the substance of Cadet [SR]’s secret in order for them to independently
assess whether or not she would feel coerced into taking a nude photograph with
Cadet Smith and later engaging in mutual oral sex in order to protect that secret.
While the importance of her secret would be relevant in this fashion, I do not
think that the members would need to know the specifics. At the Article 39(a)
session, the Government offered a generic formulation that would impress upon
the members the seriousness of the secret. In essence, the members could be
informed that the secret was information that if revealed could have an adverse
impact on her Coast Guard career, including possibly disciplinary action under
the UCMJ.
4. The final rationale offered by the Defense at
the Article 39(a) hearing is the most persuasive. The Defense argued that if
the members hear that Cadet [SR] originally told Cadet Smith that a sexual
encounter with another man was non-consensual, and then later admitted that it
in fact was consensual, then the members could use this testimony to infer that
the same thing is happening in this case. In other words, the members could
infer that Cadet [SR] has a propensity to bring false accusations against men
with whom she has had consensual sexual encounters. I agree that this theory
would be a valid reason for admitting this evidence under M.R.E. 412(b)(1)(C),
but there are two problems with the Defense proffer. First, the evidence
proffered that Cadet [SR] made these statements is not strong since it comes
from the accuse d, who has an obvious bias. Cadet [SR]’s written statement and
Article 32 testimony on this point is not clear. She admitted at the Article 32
that she only partially confided in Cadet Smith in May and fully confided in
him on October 19th; however, this is far from proof that she initially claimed
that the encounter was non-consensual. In fact, it is consistent with the rest
of Cadet Smith’s Article 39(a) testimony that on October 19th she told him that
the scope of the sexual encounter had been greater than she had previously
described. The probative value of this
evidence is therefore low.
5. More
important, there is no evidence that Cadet [SR] made an official complaint
against the unnamed enlisted man. Even if Cadet [SR] told the accused in May
that the encounter was not consensual, the nature of this confidential
statement is far different from the nature of her statements to law enforcement
personnel that she must have known would result in a public prosecution. Cadet
[SR]’s alleged statement to Cadet Smith was apparently intended to keep more
people from learning about her sexual encounter with the enlisted man. It was
not a false complaint to law enforcement. In contrast, her statements made in
this case were to law enforcement personal and would certainly lead to a public
prosecution. Consequently, even if Cadet [SR] falsely told the accused in
confidence that her sexual encounter with the enlisted man was
nonconsensual in an effort to suppress rumors, this would have little
value in proving that her official allegations against Cadet Smith resulting
in a public trial are also
false. I am convinced that the minimal probative value of this evidence is
outweighed by danger of unfair prejudice to Ensign [SR]’s privacy interests and
the potential danger of sidetracking the member’s attention to a collateral
issue as described in paragraph 2 above.
For the above
reasons, the Government’s objection that this evidence is inadmissible in
accordance with M.R.E. 413 [sic] is SUSTAINED.
EFFECTIVE DATE
This order was
effective on 26 May 2006.
Done at
Washington, DC,
/s/
Brian Judge
Captain, U.S.
Coast Guard
Military Judge
Read more at http://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM
Labels: Cadet Webster Smith.
0 Comments:
Post a Comment
<< Home