Available here. United States v. Gaddis, __ M.J. __, No. 10-0512/AR (C.A.A.F. Aug. 10, 2011). Judge Ryan wrote for the majority, joined by Judges Erdmann and Stucky. Chief Judge Effron concurred in part and concurred in the result. Judge Baker joined Chief Judge Effron’s separate opinion. CAAF affirmed the outcome from ACCA.
While rejecting a facial constitutional challenge to MRE 412, the majority opinion is critical of its language, which creates a danger of excluding required evidence:
We hold that the balancing test in Military Rule of Evidence (M.R.E.) 412(c)(3) is not facially unconstitutional. However, its current iteration — which purports to balance the “alleged victim’s privacy” against the probative value of the evidence — is needlessly confusing and could lead a military judge to exclude constitutionally required evidence. The “alleged victim’s privacy” interests cannot preclude the admission of evidence “the exclusion of which would violate the constitutional rights of the accused.” See M.R.E. 412(b)(1)(C). We interpret M.R.E. 412 to preclude the exclusion of any constitutionally required evidence.
The majority reasons: “Although Congress has authorized the President to prescribe the rules of evidence for courts-martial, M.R.E. 412 cannot limit the introduction of evidence that is required to be admitted by the Constitution.” Gaddis, No. 10-0512/AR, slip op. at 10-11 (internal citation omitted. The majority noted that in some cases, M.R.E. 412 could result in an unconstitutional limitation on defense evidence: “The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy. In those circumstances, the test would be unconstitutional as applied.” Id., slip op. at 11-12.
The Court explained that “because of the confusing structure of M.R.E. 412, the test has the potential to lead military judges to exclude constitutionally required evidence merely because its probative value does not outweigh the danger of prejudice to the alleged victim’s privacy, which would violate the Constitution.” Id., slip op. at 12. The majority continued, “And the test is a problem of our own devise, since it was enacted in response to this Court’s decision in Banker.” Id.; see United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004).
In what appears to be an invitation to the President to revoke the 2007 amendment to M.R.E. 412, the majority continued, “M.R.E. 412 cannot limit the introductino of evidence required by the Constitution — although the text of the rule seems to permit such a limitation. And the explanation in Banker — suggesting that balancing constitutionally required evidence against the privacy interest of the victim before admitting it is necessary to further the purpose of the rule — is simply wrong.” Gaddis, No. 10-0512/AR, slip op. at 17 (internal citation omitted). “The purposes of M.R.E. 412 are served by the rule itself, which prohibits all evidence of an alleged victim’s sexual behavior or predisposition unless, for example, it is constitutionally required.” Id., slip op. at 17-18. “If after application of M.R.E. 403 factors the military judge determines that the probative value outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim.” Id., slip op. at 18. “Likewise, if a military judge determines that the evidence is not constitutionally required, the military judge must exclude the evidence under M.R.E. 412 — regardless of how minimal the alleged victim’s privacy interest might be — because it does not fall under an exception to the general rule of exclusion. At best the balancing test under M.R.E. 412(c)(3), as currently written, is a nullity with respect to the constitutionally required exception set out in M.R.E. 412(b)(1)(C); at worst it has the potential to cause military judges to unconstitutionally exclude evidence that is constitutionally required to admit evidence that is not.” Id.
The majority went on to hold that the evidence that the defense sought to admit in this case wasn’t constitutionally required and was thus properly excluded under M.R.E. 412.