The Full Story. Setting the Record straight. First Black Coast Guard cadets in Chase Hall.: Sexual Assault At Coast Guard Academy, The Webster Smith Case Appendix 10 (Continued)

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

I concur with the majority decision on Assignments II, IV, V, and VI. I dissent from the decision on As- signments I and III.

I agree with the majority opinion that admission of the underlying details of SR’s secret—namely, her prior sexual encounter with an enlisted member—was subject to some limitation under Military Rule of Evi- dence (M.R.E.) 412. I would find, however, that the military judge abused his discretion when he prohibited the defense from cross-examining SR on her false statement to Appellant that the encounter was noncon- sensual, since this evidence was highly probative of the defense theory that SR engaged in a pattern of fabrica- tion to avoid discipline. As discussed below, I believe that the military judge erred when he decided the ad- missibility of this evidence based on his own credibili-

[564]ty determination of the only two witnesses in- volved. The military judge also erred in not consider- ing important factors that favored admission of the de- fense evidence, including that the Government made first use of evidence of SR’s secret in its case-in-chief to prove that she was extorted and coerced into sexual relations with Appellant; that SR’s credibility was a key element in an otherwise uncorroborated case; and that the strength of the Government’s case turned on the members finding the presence of subtle psychologi- cal influences that overcame SR’s will. The excessive restrictions imposed on Appellant’s Sixth Amendment confrontation rights allowed SR to testify through non- factual euphemisms on critical issues related to the Government’s proof and her own credibility, and al- lowed the Government to create a substantially differ- ent impression of her truthfulness than what the de- fense had sought to show through the excluded evi- dence.

It is well-settled that “a primary interest secured by [the confrontation clause of the Sixth Amendment] is the right of cross-examination.” Douglas v. Ala- bama, 380 U.S. 415, 418 (1965). “Cross-examination is the principal means by which the believability of a wit- ness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). Moreover, “the ex- posure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Id. at 316-17. In military courts-martial, the right to attack the partiality of a witness is primarily secured under M.R.E. 608(c), which provides for the admission of evidence that shows bias, prejudice, or any motive to misrepresent through cross-examination of witnesses or extrinsic evidence. See United States v. Hunter, 21 M.J. 240, 242

(C.M.A. 1986); United States v. Saferite, 59 M.J. 270 (C.A.A.F. 2004).

Although trial judges have broad discretion to im- pose reasonable limits on cross-examination to address concerns over harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is re- petitive or only marginally relevant, this discretion is not without boundaries. Where the accuracy and truth- fulness of the witness’ testimony are “key elements” in the Government’s case, a trial court’s refusal to allow the defendant to cross-examine the witness regarding possible bias, motive, or prejudice is a violation of his Sixth Amendment rights. Davis, 415 U.S. at 317-18; see also Saferite, 59 M.J. at 273 (“Evidence of bias can be powerful impeachment.”); United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006) (“When the military judge excludes evidence of bias, the exclusion raises issues regarding an accused’s Sixth Amendment right to con-frontation.”); United States v. Bins, 43 M.J. 79, 84 (C.A.A.F. 1995) (“When the defense offers this evi- dence, it may deny confrontation rights to exclude it.”);

United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993) (“The more important the witness to the govern- ment’s case, the more important the defendant’s right, derived from the Confrontation Clause of the Sixth Amendment, to cross-examine the witness.”).

Evidence that SR had made a prior false claim of sexual assault to Appellant should have been admissi- ble at trial because the central issue was whether SR consented during their sexual encounter on 19 October 2005, and SR was the only Government witness on the issue of consent. The defense should have been able to show that because SR had falsely informed Appellant that her prohibited sexual encounter with an enlisted member was nonconsensual, members could infer that

she had followed a similar scheme in fabricating a false complaint of indecent assault against Appellant, where the motive underlying each statement was SR’s fear of being disciplined. Here, the record of trial shows that SR relied on Appellant to contain rumors that were cir- culating over what prosecutors cryptically referred to as her “bad situation” or “secret.” (R. at 881, 901, 922- 23.) Both SR’s “bad situation” and her encounter with Appellant in Chase Hall involved a military nexus that, if disclosed, subjected SR to discipline. Both incidents were connected, in that the encounter in Chase Hall

apparently was meant to secure Appellant’s continued assistance in “suppressing” rumors regarding the ear-lier encounter.

[565] I find it significant that the Government made first use of evidence of SR’s secret during its case-in-chief. Although the prosecution was able to present evidence that SR was coerced into unwanted sexual relations with Appellant by the implied threat that he would reveal the facts of her “bad situation,” the defense was prohibited from showing that this same fear of disclosure weighed so heavily in SR’s mind that she relied on Appellant to disseminate false infor- mation concerning her secret. The anomalous result was that the members heard only the Government’s evidence on the question of SR’s motivation in submit- ting to Appellant’s advances, while the defense was un- able to complete the picture by showing the depths of her fear and the lengths she allegedly had gone—and was prepared to go—to shield the facts of her miscon- duct.

I disagree that the cross-examination allowed the defense was adequate to develop SR’s motive to testify falsely against Appellant. The sexual encounter be- tween SR and Appellant had many outward appear-

ances of being consensual. The Government’s case of indecent assault was not strong and turned on the members finding the existence of coercion that was suf- ficient to overcome the victim’s will. Resolving this is- sue necessarily required the members to carefully evaluate the potentially subtle psychological pressure that resulted from Appellant’s veiled threat to reveal the truth about SR’s secret—a threat that Appellant denied making. Certainly, one explanation for SR’s en- counter with Appellant was that she felt coerced into unwanted sexual relations. Another entirely plausible explanation was that the encounter resulted from her own calculation that Appellant needed additional “mo- tivation” to continue spreading false information on her behalf.1 Both scenarios would account for the consider- able pressure SR was under after Appellant informed her that rumors still were circulating about her secret, but the latter would not necessarily describe extortion or an indecent assault.2 Appellant could not develop this alternate scenario at trial because he was prohib- ited from adequately addressing SR’s prior false state- ment.

In addition, the Government offered no evidence of a fresh complaint and no other evidence to support SR’s

1 The defense attempted to develop this alternate theory dur- ing cross-examination of SR, but was hamstrung by its inability to speak directly to the facts of the prior false allegation. (R. at 903.)

2 In fact, the Government, in apparent acknowledgment of the subtle psychological pressures at work, responsibly determined that it would not charge Appellant with forcible sodomy. In its answer and brief, the Government explained, “[a]s a practical mat- ter, it would be difficult to convict someone of forcible sodomy on these facts, however, that does not mean that the conduct was con- sensual.” (Government Br. 7.)

account of the incident involving Appellant.

SR was the Government’s key witness against Appellant—in fact, SR’s testimony was the only evidence supporting Appellant’s conviction on extortion and indecent as- sault. Moreover, her own testimony on the question of consent was far from conclusive. For example, al- though SR testified that at one point during their en- counter she pushed Appellant’s head aside and told him, “Please don’t,” she also testified that they kissed each other and exchanged back massages; that he told her, “You don’t have to if you don’t want to”; and that she thanked him for his support—presumably in refer- ence to his assistance in defusing rumors regarding her secret. (R. at 885-86, 889-92, 914-17.) On the unusual facts of this case, it was essential that the defense be given wide latitude to explore SR’s credibility, and to fully develop any motive reasonably raised by the evi- dence that she would bring a false allegation of sexual assault against Appellant. See Moss, 63 M.J. at 236 (“rules of evidence should be read to allow liberal ad- mission of bias-type evidence”).

The members eventually did hear SR admit that her secret involved a violation of Cadet Regulations (R. at 899), and that she had misled Appellant about the circumstances, saying, “Yes, I did lie to him” (R. at 901). In addition, defense counsel argued in closing that SR “admitted she lied to Cadet Smith.” (R. at 1510.) This limited impeachment allowed the defense was in- adequate given that a general attack on a witness’

credibility is not the same as a showing of bias or mo-tive. See Davis, 415 U.S. at 316-[566]17.

Here, the members never were able to place SR’s admission that she had lied to Appellant in any factual context, be- cause they never heard what the secret was or what she had lied about. The members only heard that SR

had lied to Appellant in the past, not why she would have lied in bringing allegations against Appellant.

More importantly, SR was able to minimize her lie to Appellant by testifying that she had only omitted certain details from her account, saying, “I just didn’t tell him all that occurred,” and also that she told him, “I’m not gonna ask you to lie for me.” (R. at 902-03.) Her testimony on this point created a substantially dif- ferent impression of her credibility than what the de- fense had tried to show—namely, that SR had know- ingly provided Appellant with false information, which he then used to counter a career-threatening rumor. See Olden v. Kentucky, 488 U.S. 227, 232 (1988) (defen- dant states a violation of Confrontation Clause if a “reasonable jury might have received a significantly different impression of [the witness’] credibility” had excluded line of cross-examination been allowed). Es- tablishing this point was essential, as the crux of Appel- lant’s defense was that SR had followed a pattern of fabrication to avoid discipline that was revealed by like motives from a prior scheme. Given this record, where SR was able to downplay her lie as a mere omission of details, and the defense was not allowed to inform the members what SR had lied about or the lengths she was prepared to go to protect her career, the members may well have concluded that the defense was engaged in a “speculative and baseless line of attack on the credibility of an apparently blameless witness.” Davis, 415 U.S. at 318.

The military judge issued his ruling under M.R.E.

412, which broadly prohibits the introduction of evi- dence of a victim’s past sexual behavior or sexual pre-disposition, unless the evidence fits into one of three

narrow exceptions.3 Appellant moved to admit the facts of SR’s secret under M.R.E. 412(b)(1)(C), which provides an exception for “evidence the exclusion of which would violate the constitutional rights of the ac- cused.”4 Evidence that is offered under an enumerated exception to M.R.E. 412 shall be admitted if the mili- tary judge determines that the evidence is relevant and that the probative value outweighs the danger of unfair prejudice—i.e., prejudice to the privacy interests of the alleged victim. See M.R.E. 412(c)(3); United States v. Sanchez, 44 M.J. 174, 178 (C.A.A.F. 1996). In addition, relevant evidence that is offered under the constitu- tionally required exception must be admitted if it is ma- terial and favorable to the defense, and therefore is necessary. United States v. Banker, 60 M.J. 216, 222 (C.A.A.F. 2004).

3 M.R.E. 412 is modeled after Federal Rule of Evidence 412 and is intended to protect victims of sexual offenses from degrad- ing and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a defense. Appendix 22 at A22-36, Manual for Courts- Martial, United States (2005 ed.).

4 I agree with the majority that the trial defense team did not precisely address the admissibility of the evidence in terms of SR’s “motive” to fabricate. Indeed, it appears that the defense objec- tion has assumed greater clarity and focus on appeal. The defense, however, did argue at trial that the evidence implicated Appel- lant’s confrontation rights to show the witness’s “biases and … credibility,” in that it revealed SR’s “pattern” of claiming that pro- hibited consensual relations were coerced when disclosure could be damaging to her career. (R. at 97-98.) By focusing on SR’s con- scious decision to lie under similar circumstances in order to avoid punishment, the defense adequately raised the issue of SR’s mo- tive to fabricate allegations against Appellant.

In a detailed ruling, the military judge correctly determined that evidence of a prior false claim of sexual assault was relevant evidence of SR’s motive to make a false claim of indecent assault against Appellant, stat- ing, “I agree that this theory would be a valid reason for admitting this evidence under M.R.E. 412(b)(1)(C)

….” (Appellate Ex. CLIII at 3.)

The military judge reasoned:

[I]f the members hear that [SR] originally told Cadet Smith that a sexual encounter with an- other man was non-consensual, and then later admitted that it in fact was consensual, then the members could … infer that the same thing is happening in this case. Id.

However, the military judge then went on to con-

clude that the evidence had “low” probative value be- cause:

[567] [T]he evidence proffered that [SR] made these statements is not strong since it comes from the accused, who has an obvious bias. [SR]’s written statement and Article 32 testi- mony 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) tes- timony that on October 19th she told him the scope of the sexual encounter had been greater than she had previously described. Id.

I would find that the military judge erred when he decided the probative value of motive evidence based on his evaluation of the credibility of the only two wit- nesses involved. It is the members’ role to determine whether a witness’ testimony is credible or biased. Bins, 43 M.J. at 85. “In applying M.R.E. 412, the judge is not asked to determine if the proffered evidence is true; it is for the members to weigh the evidence and determine its veracity.” Banker, 60 M.J. at 224. Ac- cordingly, relevant and material evidence of a prior false allegation of sexual assault is no less admissible merely because it is offered through the testimony of the criminal accused.

This is particularly so here, where SR—the only other witness to the conversation in issue—secured her unavailability to testify at the motions hearing by invoking her rights against self- incrimination.5 (R. at 79.) In a credibility contest be- tween Appellant and SR, it should have been up to the members to resolve discrepancies in their respective accounts and decide whom to believe.

As a second basis for excluding the defense evi- dence, the military judge concluded that SR’s state-

5 Because SR refused to testify, the military judge based his findings on Appellant’s in-court testimony, SR’s prior written statement, and the non-verbatim summary of her Article 32 testi- mony. Based on my review of the complete record, I would find that there was at least a reasonable probability that SR provided Appellant with a false account of her secret—namely that the en- counter was non-consensual—which he then used to counter ru- mors on her behalf. Appellant’s testimony concerning their initial conversation was partially corroborated in several key respects by SR’s trial testimony, including her admission that the conversation took place, that she had “lied” to Appellant by omitting details that presented her in a “bad light,” and that Appellant had assisted her by “squashing” rumors of her secret. (R. at 878, 901-02.)

ment to Appellant was materially different from a re- port that she subsequently provided to investigators. The military judge stated:

[E]ven if [SR] falsely told the accused in confi- dence that her sexual encounter with the enlisted man was non-consensual 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.

(Appellate Ex. CLIII at 3.)

The military judge then concluded, “[T]he minimal probative value of this evidence is outweighed by dan- ger of unfair prejudice to [SR’s] privacy interests and the potential danger of sidetracking the member’s [sic] attention to a collateral issue ….” Id.

In a trial on charges of extortion and coerced sex- ual relations, I do not agree that the defense intrudes in a collateral matter by making an inquiry into facts that describe the victim’s fear that her secret will be re- vealed. Proof of the secret’s existence and the genu- ineness of SR’s fear of disclosure were key issues in the Government’s case against Appellant, and the defense had a right to explore them, subject to carefully tai- lored restrictions respecting SR’s privacy.6 Moreover,

6 The military judge clearly recognized the relevance of the content of the secret to the extortion and indecent assault offenses, observing, “[I]f the secret is about something that is completely inconsequential, it makes it less likely that [SR] would have been willing to do something against her will.” (R. at 112.) Ultimately, however, the Government was able to prove both the existence and importance of the secret through the witness’s layering on of additional conclusory statements.

by focusing on the confidential versus official nature of SR’s two statements, the military judge overlooked the greater significance of the defense proffer. The defense theory was that SR’s ultimate motive in avoiding disci- pline was revealed in her expectation that Appellant would place his reputation on the line and communicate false information to counter rumors then in circulation about her secret.7 The defense argued that [568] this same motive was also present in her complaint against Appellant, and it seems an artificial distinction to say that the formality of the complaint process somehow altered SR’s overriding concern for protecting her ca- reer. Compare United States v. Bahr, 33 M.J. 228, 233 (C.M.A. 1991) (error to exclude evidence of witness’ prior false statements to classmates that she had been sexually assaulted; evidence was admissible to show witness’ motive to testify falsely against accused in or- der to call attention to herself).

The majority largely sidesteps the problems with the M.R.E. 412 order and under its Article 66(c), Uni- form Code of Military Justice (UCMJ), authority con- cludes that the instant case involves non-parallel statements—an earlier statement to Appellant where avoiding discipline was a factor in SR’s motivation to lie, and a second statement to law enforcement investi-

7 There is no dispute that SR did not actively seek out Appel- lant to lie for her concerning her secret. However, after furnishing Appellant with an allegedly false account of her secret, SR appar- ently did nothing to discourage Appellant from using that informa- tion to counter rumors that were in circulation. In fact, SR’s ap- proval of Appellant’s efforts to “help her” by suppressing rumors was reflected in her own trial testimony (R. at 901, 922-23, 926), and Appellant’s threatened withholding of that assistance ulti- mately formed the basis of the Government’s extortion charge.

else knew about the encounter and SR had no reason to fear UCMJ action. The majority emphatically con- cludes that because SR had no possible motive to fabri- cate her allegations against Appellant, the earlier statement was not relevant and therefore was inadmis- sible at trial. The flaw in the majority’s argument is the implicit assumption that no circumstances other than the actual disclosure of the facts surrounding the Chase Hall encounter could have provided SR with the motive to fabricate allegations of sexual assault. In my view, the timing, content, and circumstances surround- ing SR’s initial report to investigators all point to the making of an intrinsically unreliable statement, and provide sufficient grounds to question SR’s motives in bringing her allegations against Appellant.

The record reveals that on 5 December 2005, Coast Guard Investigative Service (CGIS) agents inter- viewed Appellant—the other person who knew of the Chase Hall encounter—as part of a large-scale probe into allegations of his sexual misconduct at the Coast Guard Academy. SR was not interviewed by CGIS un- til almost two months later, on 9 February 2006,8 at which time she discussed her allegations against Appel- lant but specifically refused to address the details of her secret. SR’s self-censored initial report reveals that she had made the gators where no such motive existed because nobody understandable but nevertheless calculated decision to limit the disclosure of information that could be harmful to her career.9 Such a decision on

8 The record does not disclose whether SR voluntarily came forward or was first approached by CGIS.

9 In her signed statement to CGIS dated 15 February 2006, SR also indicated, “A situation occurred, that I do not which [sic]

SR’s part following a considerable opportunity for re- flection necessarily calls into question the completeness and reliability of her contemporaneous allegations against Appellant. Given the visibility of this dragnet investigation, the four-month delay between the Chase Hall encounter and SR’s initial report, and her selective and continued withholding of facts that did not reflect favorably on her, it certainly was possible that SR fab- ricated or embellished details of her allegation against Appellant as a preemptive strike to avoid discipline, based on her fear or expectation that the true facts of their encounter, if not already known by investigators, likely would be discovered.10 Accord-[569]ingly, the two statements were “parallel” not because anyone else knew the facts, but because of the illegality of the en- counters and SR’s fear that the true facts could be dis- covered. Whether or not SR actually formed the mo- tive to fabricate allegations against Appellant was an

to discuss, which led to rumors (which were grossly exaggerated).” (Appellate Ex. XVII, Enclosure 13 at 1; Appellate Ex. XXI at 2.) SR’s clear attempt to downplay the rumors while at the same time refusing to address them indicates, in my mind at least, a concern for UCMJ or administrative action, if not a desire to deflect official interest in her own behavior.

10 Given the ongoing CGIS investigation, there certainly would have been risks to SR in not stepping forward at all. SR likely had no way of knowing if Appellant had already reported their encounter to CGIS agents, leaving the possibility of an unre- butted, potentially career-threatening allegation of sexual miscon- duct in the hands of authorities. There also was the risk that Ap- pellant might decide to cooperate with authorities and make a pre- emptive disclosure at a future time. The argument that the record completely foreclosed the possibility of fabrication by SR would make more sense if SR had made a prompt and complete report of her allegations against Appellant at a time prior to the CGIS in- vestigation. That did not happen in this case

issue that that the members should have decided at trial.

Faced with a recalcitrant key witness who refused to testify at the motions hearing, the Government ob- tained a windfall through the erroneous application of M.R.E. 412.

At trial, SR provided conclusory testi- mony regarding her “bad situation” and Appellant’s prior role in “squashing” career-threatening rumors, for the purpose of showing that she was coerced into unwanted sexual relations after Appellant impliedly threatened to reveal the truth about her secret.

On cross-examination, the defense was prohibited from ad- dressing the facts of SR’s “bad situation” or “secret,” and similarly was prohibited from eliciting factual tes- timony that would inform the members that Appel- lant’s efforts to “squash” and “suppress” rumors spe- cifically meant spreading false information provided by SR, on SR’s behalf.11 The result was that the Govern- ment was allowed to portray SR as an innocent victim of an extortionist plot, while the defense was not al- lowed to portray the witness as the architect of a scheme of false allegations intended to cover up her own misconduct. I cannot agree that SR’s privacy in- terest in shielding her alleged false statements from inquiry was so important that it justified denying Ap- pellant the opportunity to pierce the veneer of the Gov- ernment’s conclusory assertions that were used to con- vict him. I disagree with the notion that M.R.E. 412 was intended to allow the Government to prove the corpus delicti of the offenses through a witness indulg- ing in euphemisms of doubtful legal sufficiency, particu-

11 The record of trial is devoid of any facts that would have explained to the members what these words actually meant.

larly when they obscure facts that raise serious ques- tions concerning her own credibility.12

When a constitutional violation is shown, a case must be reversed unless the error is harmless beyond a reasonable doubt. United States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005). In deciding whether or not the er- roneous exclusion of evidence is harmless, the court must consider “the importance of the witness’ testi-

mony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on materials points, the extent of cross- examination otherwise permitted, and … the strength of the prosecution’s case.” United States v. Moss, 63 M.J. 233, 238 (C.A.A.F. 2006) (quoting Bahr, 33 M.J. 228 at 234 (quoting Delaware v. Van Arsdall, 465 U.S. 673, 684 (1986))). At trial, SR testified that on 19 October 2005, she had discussed her secret with Appellant in the mailroom; that Appellant had responded by indicat-

ing he needed “motivation” to keep “helping her” by

continuing to suppress rumors that were circulating about her; that she had replied by asking whether by

“motivation” he meant sex—a suggestion she says

12 Certainly there were less burdensome remedies available to the military judge that could have protected the legitimate pri- vacy interests of the victim in this case. The military judge could have fashioned an order restricting the defense from probing the intimate and personal details of the secret, focusing instead on the nature of the encounter and the alleged false claim of sexual as- sault. In addition, the military judge could have closed the pro- ceeding during testimony on the May 2005 incident to protect the victim from undue embarrassment or humiliation. The military judge also could have provided instructions to the members limit- ing the improper use of the evidence.

made him bristle; that Appellant later appeared in her room in Chase Hall on three separate occasions, where they posed together nude for a photograph and en- gaged in sexual activity; that the sexual encounter had in her mind provided the “motivation” Appellant needed to continue to suppress her secret; and that al- though she never told Appellant to stop, she partici- pated only out of fear that he would not keep her se- cret.

Appellant presented his case upon his own testi- mony, stating in substance that while he met SR in the mailroom on 19 October, he never extorted sexual fa- vors from her and denied saying that he needed “moti- vation” to continue suppressing rumors about SR’s se- [570]cret. Appellant testified that they discussed get- ting together to pose for a nude photograph in her room; that after arriving in her room that evening, he took two digital photographs of them together, which he kept for safekeeping; and that he subsequently re- turned to her room on two additional occasions to ex- change massages and perform consensual oral sodomy. Appellant admitted that SR was “tense” and “stressed” but claimed that the entire sexual encounter with SR was consensual. (R. at 1325.)

The difficulty accepting Appellant’s account of a consensual encounter with SR is that it makes little in- tuitive sense given the lack of any evidence of a rela- tionship or any rational explanation for its spontaneous nature. In short, Appellant’s testimony is remarkable in its failure to explain SR’s actions in the absence of at least some undue influence. In this failure, however, lies the major flaw in the military judge’s M.R.E. 412 order. Appellant’s account of an almost spontaneous consensual encounter with SR would be difficult to be- lieve unless the members were informed of SR’s prior

false claim and were able to understand the depths of her concern for protecting her career. Only if informed of SR’s prior scheme would the members have consid- ered the possibility that her encounter with Appellant in October 2005 resulted not so much from coercion, but rather from her own calculation that she needed to en- sure his continued cooperation in keeping her prior misconduct secret. Only then would the members have considered the possibility that SR might have fabri- cated a false claim of sexual assault against Appellant as a preemptive strike, out of fear that the encounter would be discovered through an ongoing investigation. The erroneous M.R.E. 412 order deprived Appellant of his best defense to the charges involving SR.

See United States v. Gray, 40 M.J. 77, 80 (C.M.A. 1994) (military judge committed reversible error by exclud- ing evidence of victim’s past sexual behavior under M.R.E. 412; case came down to a credibility contest be- tween witnesses, and the excluded evidence “could have made [the accused’s] otherwise incredible expla- nation believable”); see also United States v. Williams,

37 M.J. 352, 360 (C.M.A. 1993) (accused’s constitutional right to present evidence of victim’s extramarital affair improperly excluded under M.R.E. 412; excluded evi- dence would have revealed motive to provide false tes- timony in order to protect affair, victim was key wit- ness in government’s case, and evidence of guilt was not overwhelming).

Here, the Government offered no other evidence to support SR’s testimony that her sexual encounter with Appellant, which had many outward indicators of being consensual, actually resulted from coercion.

The ad- mission of evidence that SR had furnished Appellant with false information which he then used to counter a career-threatening rumor may well have cast doubt on

the veracity of SR’s testimony, and tipped the balance in favor of Appellant’s version of events. Accordingly, I would find that the error in excluding this evidence was not harmless beyond a reasonable doubt.

I would affirm the findings of guilty to sodomy, at- tempted failure to obey a lawful order, and unauthor- ized absence. I would set aside the findings of guilty to extortion and indecent assault, and the sentence, and return the case to the Convening Authority for a re- hearing.

For the Court,

Jane R. Lee

Clerk of the Court

APPENDIX C

GENERAL COURT-MARTIAL UNITED STATES COAST GUARD

UNITED STATES

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 be- havior 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 Govern- ment 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 be- cause she invoked her right under Article 31(b) to con- sult 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 state- ment dated 15 February 2006 that Cadet [SR] provided to the Coast Guard Investigative Service.

[* Petitioner notes that by order dated October 29, 2009, the court of appeals unsealed this order. Petitioner has nonetheless changed all uses of the accuser’s name to her initials.]

60a

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 Sta- tion 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 consen- sual.

On or about 19 October 2005, Cadet Smith again approached Cadet [SR]. He told her that he had re- mained 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 in- cident with the enlisted man had been a consensual en- counter 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 ex- pose 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.

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CONCLUSIONS OF LAW

1. Generally, evidence that an alleged victim of a sexual offense engaged in other sexual behavior or evi- dence of the alleged victim’s sexual predisposition is not admissible. M.R.E. 412(a). There are three excep- tions 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 ac-cused 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 evi- dence. M.R.E. 401. Assuming these requirements are met, the accused must also demonstrate that the proba- tive value of the evidence outweighs the danger of un- fair 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 so-

ciety 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 in- stances of conduct of witness may be admitted, at the discretion of the military judge, if probative of truth- fulness. I decline to exercise that discretion in this case

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because I believe that, under these circumstances, the probative value of this evidence is substantially out- weighed by the danger of unfair prejudice. Then Cadet [SR] was under no duty to be completely forthcoming with Cadet Smith concerning her private life, particu- larly under these circumstances since her rumored con- duct would be in violation of Coast Guard regulations and could subject her to disciplinary action or other ad- verse consequences. More important, despite any limit- ing 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 focus- ing on.

3. The Defense also argued that the members must know the substance of Cadet [SR]’s secret in or- der 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 specif- ics. At the Article 39(a) session, the Government of- fered 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 in- formation that if revealed could have an adverse impact on her Coast Guard career, including possibly discipli- nary 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

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[SR] originally told Cadet Smith that a sexual encoun- ter 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 propen- sity 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 accused, who has an ob- vious 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 Ca- det [SR] made an official complaint against the un- named enlisted man. Even if Cadet [SR] told the ac- cused 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

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enforcement. In contrast, her statements made in this case were to law enforcement personal and would cer- tainly 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 non- consensual 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 atten- tion to a collateral issue as described in paragraph 2 above.