Sexual Assault At Coast Guard Academy, The Webster Smith Case Appendix 8

Appendix 8

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

No. 08-0719

Crim. App. No. 1275

UNITED STATES,

Appellee,

v.

WEBSTER M. SMITH, CADET, U.S. COAST GUARD,

Appellant,

Argued: November 10, 2009

Decided: March 29, 2010

[68 M.J. 445]

[446] STUCKY,  J.,  delivered the judgment of the Court, in which RYAN, J., joined. BAKER, J., filed a separate opinion concurring in the result.  ERDMANN, J., filed a separate   opinion concurring in part and dis- senting in part, in which EFFRON, C.J., joined.

*       *      *

Judge STUCKY delivered the judgment of the Court.

At trial,  the military  judge limited Appellant’s cross-examination of Cadet SR,  the Government’s only witness on his three convictions related to sexual mis- conduct.  We granted review to decide whether Appel- lant was denied his right to confront his accuser on

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those three specifications.  We hold that Appellant was not denied his right to confront his accuser, and affirm.

I.

A general court-martial  consisting  of members con- victed Appellant, contrary to his pleas, of attempting to disobey an order, going from his place of duty, sodomy, extortion, and  indecent assault.                                                 Articles 80, 86, 125, 127, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 925, 927, 934 (2006). The conven- ing authority approved the sentence the members  ad- judged:         a  dismissal, confinement for six  months,  and forfeiture of all pay and allowances.   The United States Coast Guard  Court of Criminal  Appeals affirmed  on April 9, 2008. United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App. 2008). Appellant  filed a motion for reconsideration  which was denied  on  May 14, 2008.

Appellant petitioned this Court for review on July 14, 2008.

II.

As a preliminary matter, the Government contends that  Appellant’s  petition for  review was not timely filed, and that therefore the grant of review should  be dismissed as  improvidently granted.                                     Article  67(b), UCMJ, 10 U.S.C. § 867(b) (2006), provides  that an ac- cused  has sixty  days to petition this Court for review from the earlier of “(1) the date on which  the accused is notified  of the decision  of  the Court of Criminal  Ap- peals; or (2) the date on which a copy of the decision …, after being served on appellate counsel of record for the accused … is deposited in the United States mails for delivery by first class certified mail to the accused.” In United States v. Rodriguez,  we held that the sixty-day statutory period for filing petitions for review was ju-

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risdictional  and could not be waived. 67 M.J. 110, 116 (C.A.A.F. 2009).

Before filing a  petition for review  at this  Court, Appellant timely sought reconsideration of the CCA’s decision.  Until  the CCA  rendered a decision on the re- consideration  request, either by denying reconsidera- tion or by granting  reconsideration   and rendering a new decision, there  was no CCA decision for [447] this Court to review.

We hold that Appellant’s  sixty-day period for filing at this Court began on the date the de- fense was formally notified, under the provisions of Ar- ticle 67(b),  UCMJ, of the CCA’s decision  on reconsid- eration. The evidence of record  does not support the Government’s contention that the appeal was untimely filed.

III.

Appellant  and Cadet SR  were cadets at the United

States Coast Guard Academy.  During the summer of 2005, Cadet SR   and   Appellant were assigned to neighboring  Coast Guard cutters in Norfolk, Virginia. While there, Cadet SR  committed an indiscretion  that could  have jeopardized  her ranking as a  cadet  and threatened her Coast Guard career.  Shortly thereafter, Appellant sent her a text message saying that he hoped the rumors he was hearing were not true.  Cadet SR discussed the situation with Appellant but lied about some of the details. Appellant  “said he’d try to squash rumors, and that it would be okay.”

In October of that year, after both had returned  to the Academy, Appellant notified Cadet SR  that the rumors were  persisting.               She then truthfully  dis- closed  the details of her indiscretion.

Appellant said he would  continue to try  to suppress the ru- mors, but that he needed motivation to do so. Ap-

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pellant  denied  he  was seeking sexual favors but suggested the couple take a photograph   of them- selves  naked together  to build “trust  in one  an- other.”

After  the  photo, Appellant  left  but re- turned to her room later that evening. On this oc- casion,  he  inserted his  fingers in her  vagina  and placed his tongue  on her clitoris.   Cadet SR  then performed fellatio on him.

IV.

Appellant  alleged that Cadet SR’s  indiscretion in- volved engaging in sex with an enlisted member  and, pursuant               to Military   Rule              of           Evidence (M.R.E.) 412(c)(1), Appellant  moved to admit evidence  of this prior sexual   conduct.   

That     rule                   provides that  “[e]vidence offered to prove that any alleged victim en-

gaged in other sexual behavior” is not generally admis- sible.  M.R.E.  412(a)(1). However, “evidence the exclu-sion of which would violate the constitutional rights of the accused” is admissible.  M.R.E. 412(b)(1)(C).

During  a  closed   hearing  conducted  pursuant to M.R.E.  412(c)(2), Appellant  testified that in May 2005 Cadet SR  told him that she had had nonconsensual sex- ual encounters with an enlisted  member, but that in Oc- tober 2005 she admitted that those sexual encounters had actually  been consensual.     Cadet SR  invoked her right  against self-incrimination  and did not testify  at the hearing.           Appellant  argued that he should  be al- lowed to question  Cadet SR  about the encounters for “the specific purpose of establishing a pattern   of lying about sexual  events.”

The military judge sustained the Government’s ob- jection to  the admission of this evidence, but allowed the “members [to] be informed  that [Cadet SR’s] secret was information that if revealed could have an adverse

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impact on her Coast Guard career, including  possibly disciplinary action  under the UCMJ.”                                                                          The CCA af- firmed this decision.  Smith, 66 M.J. at 560-61. Appel- lant asserts that the military judge erred in not admit- ting the sexual nature of Cadet SR’s  indiscretion, and requests that we set aside his convictions for extortion, sodomy, and indecent acts.

V.

The Sixth Amendment provides that “[i]n all crimi- nal prosecutions, the accused shall enjoy the right … to be confronted  with the witnesses against him.”    

U.S. Const.  amend VI.   The right to confrontation includes the right  of a  military  accused  to cross-examine  ad- verse witnesses.  See United States v. Clayton, 67 M.J. 283, 287 (C.A.A.F. 2009). Uncovering and presenting to court members  “a witness’ motivation in testifying is a proper  and important  function  of the constitutionally protected right of cross-examination.”   Davis v. Alaska, 415 U.S.  308, 316 (1974) (citation omitted).

“Through cross-examination, an accused can ‘expose  to the jury the facts from which jurors … could appropriately  draw inferences relating to the reliability  of the witness.’ ” [448] United  States v.  Collier,  67  M.J.  347, 352 (C.A.A.F. 2009) (quoting Davis, 415 U.S. at 318).

Typically, we review a military judge’s decision to admit  or exclude  evidence for an abuse  of discretion.  See United States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009).     We have  also applied  the abuse  of discretion standard to alleged violations  of the Sixth  Amendment Confrontation Clause. United States v. Moss, 63 M.J. 233, 236 (C.A.A.F.  2006); United States v. Israel,  60 M.J. 485, 488 (C.A.A.F. 2005).

Appellant has the burden under M.R.E.  412 of es- tablishing his entitlement to any exception to the pro-

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hibition on the admission of evidence “offered  to prove that any  alleged victim engaged  in other sexual con- duct.” United States v. Banker, 607 M.J. 216, 218, 223 (C.A.A.F.  2004) (citation  omitted).                 To  establish  that the excluded evidence “would violate the constitutional  rights of the accused,” M.R.E. 412(b)(1)(C), an accused must demonstrate that the evidence is relevant, mate- rial, and favorable  to his defense, “and thus whether it is  ‘necessary.’ ”      Id. at 222 (quoting  United States v. Williams, 37 M.J. 352, 361 (C.M.A. 1993).   The  term “ ‘favorable’ ” as used in both Supreme  Court and mili- tary precedent is synonymous with “ ‘vital.’ ”  Id. (quot- ing United States v. Valenzuela-Bernal, 458 U.S.  858,

867 (1982); United States v. Dorsey, 16 M.J. 1, 8 (C.M.A. 1983)).

Appellant  contends  that  his  inability  to  cross- examine  Cadet SR  about the nature of the secret  af- fected his convictions for sodomy, extortion, and com- mitting an  indecent  act.    We conclude  that further cross-examination of Cadet SR  was not “constitution- ally required.” Assuming arguendo that the exact na- ture of the  indiscretion—that  it  involved consensual sexual relations with  an  enlisted  member—was rele- vant, it  was neither material  nor  vital to Appellant’s defense.

Testimony is material if it was “ ‘of consequence to the determination of’ appellant’s  guilt.” Dorsey, 16 M.J. at 6 (quoting M.R.E.  401). In determining whether evi- dence is of consequence to the determination of Appel- lant’s guilt, we “consider the importance of the issue for which the evidence was offered in relation to the other issues in this case; the  extent to which this issue is in dispute;  and the nature of other evidence in the case pertaining to this issue.” Id. (citation omitted).  In this case, the evidence was offered on a significant issue, the

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alleged victim’s credibility, which was in dispute. Nev- ertheless, knowledge of the exact nature of her indis- cretion in relation to the other issues in the case was not important. The military judge allowed Appellant to present  a fairly precise and plausible theory of bias, i.e., that she lied to preserve a  secret which “if  revealed could have an adverse  impact  on her Coast  Guard  ca- reer, including possibly disciplinary action  under the UCMJ.”            While Cadet SR’s  credibility was in conten- tion, it is unclear why the lurid nuances of her sexual  past would have added much to Appellant’s extant the- ory of fabrication.

Nor is cross-examining Cadet SR  about her sexual past “ ‘vital’ ” under Banker, 60 M.J. at 222 (quoting Valenzuela-Bernal, 458 U.S.  at 867; Dorsey, 16 M.J. at

8). The “vital” issue is not whether  Cadet SR  engaged in consensual sex with an enlisted  member or whether she lied to Appellant  about it, but rather whether she lied about an important  issue that would  impeach her credibility.  Cadet SR  admitted that she had  been in a “situation” that could have jeopardized  her career and her ranking as a cadet; that the “situation” was in viola- tion of cadet regulations  and possibly a violation  of the UCMJ; and that she initially lied to Appellant about the “situation.” All  of this was before the members. The military judge did not abuse his discretion;  he provided Appellant what he  was due  under the Confrontation Clause:     an  opportunity to impeach the complainant’s credibility.

Finally, Appellant argues that Cadet SR’s  past in- discretion and her lies about it gave her similar motive to lie  about  her relationship  with Appellant.        

We de- cline to embrace such  a broad, cumulative   reading  of M.R.E.  412 and its case law. Even according to Appel- lant’s own theory, Cadet SR  lied about her sexual past

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to protect herself, not a [449]  relationship with another, unlike United States v. Williams,  37 M.J. 352 (C.M.A. 1993), or Olden v. Kentucky, 488 U.S.  227 (1988). This is not a case like Collier in which the appellant asserted she was framed for larceny by her gay lover after the breakup of the relationship. 67 M.J. at 351. Nor does this case involve recent extramarital sex or rejection  and  invective which might have caused the victim to falsely claim rape, as in Dorsey, 16 M.J. at 6. To the ex- tent Appellant might have tried to introduce some non- sexual aspects of his theory of bias via M.R.E.  608(c),

he failed to frame or raise this issue as such at trial.

VI.

The decision  of the United  States Coast Guard

Court of Criminal Appeals is affirmed.

BAKER, Judge (concurring in the result):

I concur in the result.  In my view, this case is gov- erned by  United States v. Banker, 60 M.J. 216, 225 (C.A.A.F. 2004). In Banker, we concluded that in the context of Military  Rule of Evidence (M.R.E.) 412, it is “within the judge’s discretion to determine that such  a cursory argument [does] not sufficiently articulate how the testimony  reasonably established a motive  to fabri- cate….        [It is]  within  the discretion of the military judge  to conclude that the offered testimony was not relevant.” Id. at 225. The burden is on the appellant to prove why the M.R.E.  412 prohibition  should  be lifted. Id.

Appellant’s theory of admission was that SR, hav- ing lied to Appellant  about her prior sexual misconduct with an enlisted  member of the Coast Guard, demon- strated a propensity to lie about her sex life generally and in particular to make false  allegations  to law en-

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forcement authorities to conceal  her own sexual mis- conduct.         Appellant argues that SR’s  misconduct also included engaging in consensual sexual activities with Appellant in the Cadet barracks.  Therefore, Appellant  argues,  he had a constitutional right to cross-examine SR about her prior sexual  conduct, notwithstanding the general prohibition on such examination enshrined  in M.R.E. 412.

The problem for Appellant is that his theory of ad- mission  is  too far-fetched  to pass constitutional  and M.R.E.  403 muster.  First, SR  had no obligation  to tell Appellant about her sexual life and misconduct.   It does not logically follow that someone who would lie to pro- tect her privacy from a probing acquaintance would  lie to the police and commit  perjury.   Second, it  was SR herself who reported her sexual contact  with  Appel- lant; this cuts against Appellant’s theory that SR would lie  to conceal her own misconduct. Third,  to support this theory of admission the members  needed to know that SR  had “lied” to Appellant  about her sexual mis- conduct; they did not  need to know the details  of the prior  sexual conduct.   This  much  the military  judge permitted.

In my view, Appellant might have  a different ap- pellate case if he had argued  to this Court that mem- bers needed to know the nature of “the secret” in order to assess beyond  a reasonable doubt whether SR  might succumb to pressure to protect the secret. This  alter- native theory was not the basis of  Appellant’s appeal before this Court. In any event, it should be noted that the military judge rejected this theory at trial, his con- clusions of law stating:

While the importance of her secret would   be relevant in this fashion, I do not think that the

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members would need to know the specifics.  At the  Article 39(a) session, the Government  of- fered a generic formulation that would impress upon the  members the seriousness of the se- cret.         In  essence,  the members   could  be  in- formed that the secret was information that if revealed  could have an adverse impact  on her Coast Guard career, including possibly discipli- nary action under the UCMJ.

Reasonable judges might disagree  on whether  ad- ditional detail  about “the  secret”  was needed for mem- bers to fairly  assess whether this Coast  Guard  cadet was coerced into sexual conduct to safeguard that se- cret.  But I am not persuaded that it was plain error. The military judge informed the members that the se- cret exposed the witness to criminal liability and vio- lated academy regulations. This  is the very sort of bal- ancing  military  judges are supposed to conduct [450] when they weigh an accused’s rights and a victim’s  pri- vacy under M.R.E. 412.

ERDMANN,  Judge, with  whom EFFRON,  Chief

Judge, joins (concurring in part and dissenting in part):

While I concur with the majority opinion as to the jurisdictional issue raised by the Government,  I re- spectfully dissent from the majority’s conclusion as to the granted issue.                                    In  a case where   credibility of the complainant was fundamental, the military  judge pre- vented the defense from presenting to the panel an ex- planation  of the circumstances  that would have  pro- vided a motive  for the complainant to make a false  alle- gation of rape.

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Background

Cadet Webster Smith was initially  charged  with twenty-two specifications,  the majority of  which re- lated to his sexual relationships with female  cadets at the United States  Coast Guard Academy.                                    Eleven of those charges were dismissed  before trial.  At a general court-martial composed of members, Smith was found not guilty of six of the remaining charges. Contrary to his  pleas,  the  members  found  him guilty  of absence without leave, attempted failure to obey a lawful order, sodomy, extortion, and indecent assault. The sodomy, extortion,  and indecent assault charges arose out of al- legations made by SR, a female cadet.

In  this  appeal,  Smith  asserts  that the military judge   erred  by  preventing him  from  fully   cross- examining SR  as to her motive  and credibility in viola- tion of his Sixth Amendment right to confrontation  and the “constitutionally  required” exception  to Military Rule of Evidence (M.R.E.)  412. M.R.E.  412(b)(1)(C). At trial the defense filed a motion   pursuant to M.R.E. 412 requesting permission to cross-examine SR  about her  alleged  statements  to Smith  concerning   a  prior sexual encounter she had with an enlisted  servicemem- ber. The factual basis for the motion was summarized by the military judge in his findings of fact:

During the  summer training program  at the start of their first class year, Cadet Smith and  [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 [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

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member assigned to the Station. [SR] told him that this was true, but that it was not a consen- sual encounter.  Cadet Smith then informed the enlisted personnel  who were spreading the ru- mors that the conduct was not consensual.

On or about 19 October 2005, Cadet Smith again approached [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 en- counter with the enlisted man  had  continued. This  time she told him that the incident  with the enlisted man had been a consensual  encoun- ter  and  that the scope  of the encounter  had been   greater than she  had   previously  de- scribed.

At  the Article  32 hearing,  [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 con- cerned 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 cunni- lingus on  her  then she performed  fellatio on him.

In the defense motion,  Smith argued that the evi- dence was constitutionally  required because “[t]he  fact that the alleged victim lied to Cadet Smith about her sexual  activity  and has misled CGIS about that activity tends to show the alleged victim  as untruthful about her sexual conduct generally and specifically  has mo-

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tive to lie about the specific sexual rumors underlying the charge—the very issue before the trier of fact.”

The Government  opposed the admission of the evi- dence arguing that the substance of SR’s secret was not relevant, material, or vital to Smith’s defense.  In deny- ing the motion the military judge concluded that: [451] while the evidence was relevant, the members did not need to know the specifics,  but could be provided  with a non-specific    summary;1   although  the  evidence   could show that SR  had  a propensity to bring false  accusa- tions against men with whom she had consensual sexual encounters,  the evidence  was not strong  since the source of the allegation, Smith, was biased; there was a significant difference between SR  making   a false alle- gation to Smith and making a false allegation to law en- forcement authorities; and the  probative value of the evidence  was outweighed  by  the  danger of  unfair prejudice.

The United States Coast Guard Court of Criminal Appeals  affirmed the findings and  sentence.                                                                      

United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App. 2008). We review a military judge’s decision to admit or exclude evidence for an abuse of discretion. United States v.  Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). In doing so, we review findings of fact under the clearly erroneous standard and conclusions of law under the de novo standard.  Id.

1 The military  judge found that “the members  could  be  in- formed that the secret was information that if revealed could have an adverse impact on [SR’s] Coast Guard career, including possi- bly disciplinary action under the UCMJ.”

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Discussion

The evidence at issue was proffered to attack SR’s credibility by establishing that she had earlier made  a false allegation of a nonconsensual  sexual encounter to protect her Coast Guard career.  Before addressing the M.R.E.  412 issue, it is worth noting that there is some question as to whether M.R.E. 412 even applies to this type of evidence. The Drafters’ Analysis to M.R.E. 412 states “[e]vidence of past false complaints of sexual of- fenses by an alleged  victim of a  sexual offense is not within the scope of this  Rule and is  not objectionable when otherwise   admissible.”                                        Manual  for  Courts- Martial, United States, Analysis of the Military  Rules of  Evidence  app. 22 at A22-36 (2008 ed.).2 However, given the posture of this case on appeal, and assuming  that M.R.E.  412 does apply, the evidence is clearly  ad- missible under the M.R.E. 412 analysis.

1.    Objections Under M.R.E. 412

“[A] criminal defendant  states a  violation of the Confrontation  Clause by showing that he was prohib- ited from  engaging  in  otherwise appropriate  cross- examination  designed  to show a prototypical   form of bias on the part of the witness, and thereby  ‘to expose to the jury  the facts from which jurors  … could appro- priately draw inferences relating  to the reliability  of the witness.’ ”  Delaware v. Van Arsdall, 475 U.S.  673,

680 (1986) (citing Davis v. Alaska, 415 U.S.  308, 318 (1974)).  “[E]xposure of a witness’ motivation in testify-

2 See also Fed. R. Evid. 412 advisory committee’s  note on pro- posed 1994 amendment (“Evidence offered to prove allegedly false prior claims by the victim is not barred by Rule 412.  However, the evidence is subject to the requirements of Rule 404.”).

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ing is a proper  and important  function  of the constitu- tionally  protected right of cross-examination.” Id. At 678-79. “The question is  whether ‘[a] reasonable  jury might  have received a significantly different impression of [the witness’s] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.’” United  States v. Collier,  67 M.J. 347, 352 (C.A.A.F. 2009) (brackets in original) (quoting Van Arsdall, 475 U.S. at 680).

“M.R.E. 412 was intended to protect victims of sex- ual offenses from the degrading and embarrassing  dis- closure of  intimate details  of their private lives while preserving the  constitutional rights  of the accused to present a  defense.”   United States v. Banker, 60 M.J.

216, 219 (C.A.A.F 2004). There are, however, three ex- ceptions to the exclusionary provisions of M.R.E.  412.

Smith relied  on the third exception that requires the admission  of evidence  “the exclusion of which would violate       the         constitutional  rights   of         the         accused.” M.R.E.  412(b)(1)(C).  “This  exception addresses an ac- cused’s  Sixth  Amendment right  of confrontation   and Fifth Amendment right to a fair trial.”  Banker, 60 M.J. at 221  (citations  omitted)  (emphasis  added).   Banker requires that “where  evidence [452]  is offered pursuant to this exception, it is important for defense counsel to detail an  accused’s  theory of relevance  and constitu-tional necessity.” 60 M.J. at 221.  Smith’s counsel did just that in this case.

2.         Relevance and Materiality

In order to properly determine whether evidence is admissible  under the constitutionally required excep- tion the military judge must evaluate whether the prof- fered evidence is  relevant,  material,  and favorable to the defense. Id. at 222.  “[T]he relevancy portion of this

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test is the same as that employed for the other two ex- ceptions of the rule,” which is that “[e]vidence is rele- vant if it has ‘any  tendency to make the existence  of any fact …  more probable  or less  probable  than it would  be without the evidence.’

M.R.E.  401.” Id. At 222. The proffered  evidence could have impacted SR’s credibility  by allowing the defense to provide   a com-

monsense explanation for SR  to give false testimony.

That is, when SR  learned of the investigation of Smith for alleged sexual offenses, she became concerned that  the  investigation  would produce allegations  that she had engaged in prohibited sexual activity3  with Smith in  their  dormitory  at   the  Coast Guard Academy, thereby  jeopardizing  her own career. Thus, she fabri- cated the charges against Smith to protect her career, as she had in the past for the same reason.  The military judge found that the evidence would  be relevant  and I agree.

Having found the evidence relevant,  the next step for the  military  judge was to determine  whether  the evidence was “material  and favorable to the accused’s defense,  and thus whether it is ‘necessary’ ”  Id. at 222 (citing United States v.  Williams,   37 M.J. 352, 361 (C.M.A. 1993)).

In determining whether evidence is  material, the military judge looks at “the importance of the issue for which the evidence was offered in relation to the other issues in this case; the ex- tent to which this issue  is in  dispute;  and the

3 Pursuant to Regulations for the  Code of Cadets 4-5-05.a.3, sexual conduct is prohibited on Coast Guard Academy installations even if it is between consenting cadets.  Cadets found guilty of con- sensual sexual misconduct can be disenrolled. Id. at 4-5-05.a.4.

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nature of the other evidence in the case per- taining to this issue.”

Id. (quoting United States v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A. 1983)).

There can be no dispute  that testing the credibility of a witness through cross-examination is crucial to the right of confrontation.

A more particular attack on the witness’ credi- bility is effected by means of cross-examination directed        toward revealing          

possible     biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personali- ties in the case at hand.  The partiality of a wit- ness is  subject to exploration at  trial, and is “always relevant as discrediting the  witness and affecting the weight of his testimony.” 3A J. Wigmore,  Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the expo- sure of a witness’ motivation in testifying is a proper   and important  function of the constitu- tionally protected right of cross-examination.

Davis v. Alaska, 415 U.S. 308, 316 (1974) (citation omit- ted).

As in United States v. Dorsey, 16 M.J. 1, 7 (C.M.A. 1983), this  was a “he  said-she   said” case and  for the charges at issue in this appeal,4 the critical question for the members was the credibility of the sole prosecution witness. Evidence  of a motive to fabricate and that SR  had alleged that  an earlier consensual sexual encounter was nonconsensual in an attempt to protect her career

4 Sodomy, extortion, and    indecent assault.

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bears directly on SR’s  credibility as to the allegations she made against Smith.  It may have shown  that SR  had a propensity to lie about consensual sexual  encoun- ters when her career was on the line.  The materiality of this evidence is not the “lurid nuances of the victim’s sexual past” as noted by the majority, but rather the allegation that SR  had previously lied about  a sexual encounter under similar circumstances. [453]

3.         Balancing

Once the military  judge  has determined that the proffered  evidence is  relevant  and material,  the mili- tary judge must  undertake the M.R.E.  412 balancing test to determine if the evidence is favorable to the ac- cused’s defense.5 Banker, 60 M.J. at 222. The term fa- vorable is synonymous with vital.  Id.  “[W]hen  balanc- ing the probative  value of the evidence  against  the danger of unfair prejudice under M.R.E.  412, the mili- tary judge must consider … factors such as confusion of the issues, misleading the members, undue delay, waste of time, needless presentation  of cumulative  evidence, [and] also  prejudice to the victim’s legitimate privacy

5 Commentators  have noted  that the  “constitutionally re- quired”  exception may be unnecessary since once it is established that the evidence is constitutionally required, there can be no fur- ther limitation on its admission. See 1 Stephen A. Saltzburg et al., Military Rules of Evidence Manual § 412.02[4], at 4-194 (6th ed. 2006) (“Any limitation on  a  constitutional  right  would be  disre- garded  whether or not  such  a  Rule  existed.”);  Christopher B. Mueller & Laird C. Kirkpatrick,  Federal Evidence  § 4:81, at 306 (3d  ed.  2007) (“The  exception  is  arguably  unnecessary  because Fed. R. Evid. 412 is subordinate to the Constitution  anyway, but perhaps including  it diminishes the sense of conflict between the two legal standards.”).

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interests.”  Id. at 223.  The M.R.E.  412 balancing test weighs  in Smith’s favor.                                                 Under the circumstances  of this case, any risk  of confusion of the issues, misleading the members,  wasting time, or presenting  cumulative evidence was minimal  and is outweighed by the high probative value of this evidence.

In Dorsey the court found evidence favorable when it  “undermined the credibility of the sole prosecution witness who directly testified to appellant’s guilt of the charged offense.”   Dorsey, 16 M.J. at 7.                   In  a  similar fashion, admission of a  prior false allegation of a non- consensual   sexual encounter  could  have undermined the credibility of SR,  the only witness who  testified against Smith on the extortion, sodomy,  and indecent assault charges.

While the evidence of SR’s  earlier allegation of a false  nonconsensual  sexual encounter  and her subse- quent admission  that the encounter  was consensual would have impacted her privacy interests, withholding this constitutionally required  evidence from the panel deprived Smith of his best opportunity to provide  a mo- tive for SR’s allegations  and to challenge her credibil- ity.  The fact that the military judge allowed the panel to hear that SR had a secret that, if revealed could have an adverse impact on her Coast Guard career, including possibly disciplinary action under the UCMJ, was sim- ply not sufficient. With this limited information  about SR’s   secret, the  members were left   to  speculate whether  the secret was a minor disciplinary infraction or a more  serious charge, but they  had no idea that the

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proffered  evidence directly implicated SR’s motive  and credibility.6

In Collier this court found the military judge erred in  limiting  cross-examination   of the complaining  wit- ness for possible bias.   Collier, 67 M.J. at 349. There, the defendant attempted to establish bias by present- ing evidence of the existence of a romantic  relationship that ended badly  between  the accused  and  the com- plaining  witness.  Id. at 351.  The military  judge only allowed  cross-examination   as to  the  “breakup  of a friendship.” Id. at 351-52. This  court found that there was a qualitative  difference between the two situations and  if  the members   had been shown evidence of the romantic  relationship they might have  had  a  signifi- cantly different  impression  of the accusing witness’ credibility. Id. at 352, 353.  Similarly, there is a qualita-  tive difference  between  an  undisclosed situation  that “could  have  had an  adverse  impact  on  [SR’s]  Coast Guard career” and an allegation that SR had previously made  a false allegation of a nonconsensual   sexual en- counter to protect her career.

[454] While the military judge found that the evi- dence was not strong because it came from Smith, who had an obvious  bias, it is well established that “[t]he weight and credibility of the … witness are matters for

6 Trial counsel  illustrated  the range  of incidents that the members could have speculated on when,  at one point  during his argument on the motion,  he stated that while the existence of the secret was extremely relevant, the content of the secret was not. Trial counsel argued, “[t]he extortion charge is that there was a secret.  It doesn’t  matter  if  that secret  was whether she  liked Smarties.  It doesn’t matter if she had committed some other fel- ony ….”

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the members  alone to decide.”   United States v. Moss,

63 M.J. 233, 239 (C.A.A.F. 2006) (citing United States v. Bins,  43  M.J. 79, 85 (C.A.A.F. 1995)).

The court in Banker noted that the role of the military judge is to assure  that the evidence meets  the usual evidentiary standards.  Banker, 60 M.J. at 224 (citing United States

v. Platero, 72 F.3d 806, 812 (10th Cir. 1995)). The court in Platero  went on  to say, “when the Judge  decides whether or not a defense  is true or false and decides that on the basis of the credibility of the witnesses, the Judge is doing what the jury is supposed to do in a seri-

ous criminal  case covered  by the Sixth  Amendment.” Platero, 72 F.3d at 812.

Smith  had  a  commonsense  explanation   for  SR’s claim  that the sexual activity was nonconsensual  and the military  judge’s ruling  prevented  the members from considering this theory. The alleged false  accusa- tion was close in time to the  allegation  made against Smith, both allegations involved military members  and both situations presented  a motive  for SR  to lie about the consensual nature of her sexual activities to protect her career.  Putting aside the fact that M.R.E.  412 may not even apply  to this type of evidence, I would  con- clude that the evidence should  have been admitted un- der M.R.E. 412. I would further find that the error was not harmless beyond  a reasonable   doubt  as it  essen- tially deprived Smith of his best defense  and “the ex- cluded evidence may have tipped the credibility balance in [Smith’s] favor.” Moss, 63 M.J. at 239.

I would reverse the decision of the United States Coast Guard Court of Criminal Appeals  and set aside the findings  and  sentence  for  Additional Charge I, Specification 1 of Additional Charge II, and Additional Charge III, and remand the case for further proceed- ings, if any.

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