CAAF ruled 3-2 in United States v. Ellerbrock that a military judge abused her discretion in denying an accused the ability to cross-examine his accused victim about an extramarital affair she had had two-and-a-half years before.

The alleged victim, CL, had a long-term affair with a male roommate in Jacksonville, Florida, while her husband was stationed at Fort Stewart.  CL’s husband, who described himself as “hot tempered,” kicked down the door of his wife’s lover.  Nevertheless, at the time of trial, both CL and her husband described their marriage as good.

CL’s husband deployed, asking a family friend, Specialist Jackson, to look after his wife.  After CL put her child to bed one night, and while Jackson was at the home, CL consumed three to four shots of gin.  She had also been taking Xanax and Effexor. 

Several other friends came over, including appellant.  CL continued to drink.  Jackson and the other friends (except Appellant) left the house.  Eventually the friends went back into the apartment where they heard the bed squeaking and people moaning.  The lights came on to reveal CL and appellant have sex.  Someone told appellant to get off CL.  Appellant allegedly responded by telling the friends to leave because he was “almost done.”  The friends left.  Witnesses gave conflicting testimony as to the CL’s apparent level of intoxication and her reaction when the lights came on.  The next morning CL remembered having sex with Appellant, stating something to the effect of, “I can’t believe I did that” and “I fe[el] horrible.”

The defense sought to cross-examine CL about the prior affair, arguing that this information showed that CL had a motive to lie about having consensual sex with appellant.  CL wanted her marriage to continue, and, according to the defense, the previous incident, and her husband’s reaction, shed light on why CL might claim she had been raped.

The military judge excluded testimony about the previous affair under M.R.E. 412, finding that the probative value of the evidence did not outweigh its dangers to CL’s privacy interests, and that the dangers of unfair prejudice substantially outweighed the probative value of the evidence.  ACCA affirmed. 

CAAF reversed, in a fact-intensive opinion that has, in my mind, hints of factual sufficiency doubts throughout; reading the opinion, the case seems like the kind of sexual assault not usually won by the government.  The court held that it was a “fair inference” that a second consensual sexual dalliances would be more damaging than one, and that the defense should have been able to explore the potential effect of the first affair on CL’s willingness to tell the truth.  

The case, in my view, doesn’t mark any sea changes in M.R.E. 412 law; it seems to be an as-applied opinion in a case with a fact pattern that will ring familiar to anyone who has deployed with a military unit a few times.   

Judges Baker and Ryan dissented.

21 Responses to “CAAF rules for accused in M.R.E. 412 case”

  1. stewie says:

    “it seems to be an as-applied opinion in a case with a fact pattern that will ring familiar to anyone who has deployed with a military unit a few times.”

    With respect, it’s hard to see this as an “as applied” opinion when as you correctly point out, this is a fact pattern that arises often. Particularly when the court in this case talked about the constitutional standard as being a little more vigorous then previously believed.

    Not a sea change no, but a very good case that I would expect defense counsel to cite in all bias arguments in the future.

  2. Ama Goste says:

    Deployment experience is optional on this fact pattern. I’d say a version of this encompasses a large percentage of rape claims in the military. I’ve seen it for years and years. You could insert “on a 1-year remote assignment” or “TAD/TDY” for “deployed.”

  3. Cap'n Crunch says:

    I don’t see anything shocking in this — I think it is fair game under the facts and circumstances of the case. You can’t have an affair, know your spouse is a crazy lunatic about it, then have a sexual incident where consent is in question by every witness involved, and then say the prior affair and the spouse’s reaction to it aren’t a motive to lie. As an aside, my view is that it is best to err on the side of letting too much evidence in, versus not enough.

  4. Maybe, Maybe Not says:

    Cap’n, if you let too much evidence in, the government might get an acquittal. They didn’t prefer it, Art 32 it, and refer it to court to get an acquittal. That would cost the taxpayer too much and the government has to be good stewards of the public’s funds.

  5. k fischer says:

    Cap’n and m/m/n,

    Also, letting too much evidence in would trample on the Constitutional rights of the victim to privacy and to a fair trial against her assailant, both of which is the bedrock of our Country’s criminal jurisdprudence, i.e. the presumptive victim’s rights.

    Where have you two been hiding for the past two years?


  6. Just Sayin' says:

    k fischer, don’t even get me started on the imaginary rights of victims.

  7. Ama Goste says:

    KSF, do you work for a certain member of Congress? I believe (hope?) you made your comment in jest. If certain folks had it their way, we would skip preferrals, Art 32 investigations, and revoke commanders’ discretion to choose how to dispose of sexual assault cases by simply giving accuseds automatic life sentences.

  8. k fischer says:


    I would imagine you were referring to Congressman Bruce Braley. I hope he’s falsely accused one day, so he can get thrown into the machine. Perhaps, then he would take a little time to think about the legislation he proposes and how it affects innocent people accused of criminal acts.

    If you knew me, then you would know for a fact that those comments were made in jest because I am a card carrying, kool-aid stirring/drinking member of the defense bar.

    However, I understand your confusion because in today’s Army, with its 23 SVP’s and zero Special Victim Trial Defense Service attorneys, statements like the one I made are becoming less and less farcical, and more and more the rallying cry.

    JS, did you notice in the DSK case, the “victim’s” attorney had some sort of standing to oppose the DA’s motion to dismiss? Those rights are becoming less and less imaginary, my friend. Mark my words, that tidal wave will hit the Military soon, and the JAG Corps will have to be further expanded to include a “Victim’s Division.”

    Seriously, I would really like to know if General Chipman sees any problem whatsoever with the fact that two SVP’s who try nothing but rape cases, and have at least 10 each under their belt, are allowed to gang up on two TDS counsel with zero contested courts martial, let alone a contested rape court martial. Moreover, the SVP’s really don’t care about what the truth is. They just want to win. And, that’s fine when you are the defense counsel, but when you have that attitude as a Government attorney, there will be innocent people in jail.

    Add to the facts of this case where a military judge can’t seem to connect the dots on how a woman whose husband has anger management issues might fabricate a rape charge when her husband’s best friend walks in on her having sex with another man while he is deployed. “Uhhhhhhhhh, defense counsel, please explain again how that might be relevant………so, he kicked in the paramour’s door? But, he didn’t do anything to her? Well, I really don’t see how that’s relevant…….I mean, it was two and a half years ago and she testified that her last infidelity actually made their marriage stronger, so this alleged infidelity would not have affected their marriage one bit…..” Seriously?

    And it’s not just at that post, I actually had a judge at another post ask me what a “golden shower” was in an 802. As I am explaining it to him, I’m sitting in his chambers thinking, “So, this is the guy that the Army has chosen to ferret out the relevance of 412 evidence in a rape case?”

    The most scary thing, is that US v. Ellerbrock is a split decision. It should have been unanimous, shouldn’t it? I guess I’m not surprised that the judge wouldn’t let the 412 evidence in, and I can see how ACCA affirmed because, let’s be frank, when was the last time they reversed? But, I would have expected CAAF to be unanimous on reversing as this was the Defense’s only logical theory to explain why she is fabricating a rape allegation. And, the Defense counsel did a great job at connecting the dots in this case.

    But, this case is a perfect example of how the tide is turning with regards to the accused vs. the accuser’s rights. All they needed was one more judge and some really bad law would have been made.

    k fischer

  9. stewie says:

    I think you are painting with a broad brush, and I say that as someone who spent a lot of time being one of those “TDS counsel” with only a handful of contested cases, but the ones I had (almost all rapes) I got acquittals (for the rapes) every single time.

    Most TDS counsel are a decent match for SVPs in my experience. I also see a wide variety of “attitudes” among SVPs, some are as you say but others are quite quick to say drop that charge if it merits it.

    I don’t think knowledge of golden showers is required to rule on these issues by judges or panels.

    I just think it’s fairer to attack the idea of SVPs in general instead of blanket attacking SVPs as individual attorneys.

  10. k fischer says:

    Stewie, I was one of those TDS counsel on my first rape defense, as well.

    I’m still waiting to meet the SVP who changes my mind about the program. I agree that the sample from which I am choosing is small. I think the concept of SVP’s for victims is ridiculous when no special considerations are made for the Servicemember accused.

    The lack of knowledge of what a golden shower is, to me, indicates a lack of experience in the way things work in the area of sex. And when your client is a sexual deviant who likes women who are sexual deviants, then you would want a judge who knows a little about sex. That’s all I’m saying.

    For instance, if it were Judge Fischer on the bench in Ellerbrock, it would have been a no brainer for me to admit the evidence of the previous affair and the accuser’s husband’s reaction to it because I understand that would be exactly why she was fabricating a rape charge. And, I know what a golden shower is.

  11. stewie says:

    Well, I can be a judge and not understand what an 8-ball is and still judge a drug case. It’s incumbent upon the government to prove their case such that a factfinder is not required to come in with specialized knowledge whether the military judge or the panel.

    I don’t think the formula changes with sex cases.
    And I also know, second-hand, by accident, just recently, with no personal experience whatsoever, what a golden shower is.

  12. Ama Goste says:

    I thought I detected the sarcasm in the original post, KSF, but, as the No Man says, that doesn’t always translate. The wave of the future is truly frightening for sex cases in the military, and I say that as a defense counsel who never lost a rape case and a prosecutor who never lost a sex assault case (that went to trial–and I didn’t just prosecute the slam dunks).

  13. k fischer says:


    What does playing pool have to do with a drug case? I guess if the cue ball was made out of pure crack rock, then I could see that, but an 8-ball looks nothing like crack, unless of course you put some black dye in it, then it could look like an 8 ball, but you would have to still have a small circle of white crack with a little 8 inside of it to make it look like an 8 ball, and how would that affect the testing of the crack if it was filled with black dye, but are those the facts of this case because if it isn’t then I don’t see how an 8 ball would be relevant in a drug case……….

    Now, how would you like it if I was your defense counsel or military judge?

    Nonetheless, as I always do after reading your well reasoned responses, I will back down off my high horse and agree with you that it is not a disqualifier, as any judge is going to be unfamiliar with certain aspects of barracks vernacular, but would still be competent to learn and rule on evidentiary issues. But, as a defense counsel I would still prefer to have a judge who knew a little about the crazy sex that some people, not me, engage in, that’s all.

    Ama, I wish I had your record. I lost one as a TC and I have lost two as a TDS/CDC. Hopefully, the most recent one will be overturned on appeal. I have defended some tough ones, too, that I was ‘advised’ I shouldn’t have taken.

  14. stewie says:

    Well if I were a defense counsel, I’d probably want a judge who was well-versed in drugs, and who subscribed secretly to High Times! ;)

    I was just talking about whether they were basically competent to rule or not.

  15. k fischer says:


    Come to think of it, my two losses in sexual assault cases were the results of courts-martial where the charges involved three victims. So, good rule of thumb: when there are three alleged victims, there is a good chance that you are going to lose.

    I agree with you. It is a brave new world in military sexual assault defense. The SVP’s are well trained at what they do.

  16. Phil Cave says:

    kf, disagree about the quality of the SVP’s.

  17. Michael Korte says:

    SVP’s, the ones who are currently doing the job, appear to be experienced counsel who will no doubt do a great job in their respective roles.

    But there is no need to panic, in my opinion, that they are going to “gang up” on TDS counsel. Even an outstanding knowledge of the rules of evidence, the experience to navigate cases from start to finish, and sharp advocacy will not change the facts of the weak sexual assault cases we’ve seen in our various jurisdictions. You give me an inexperienced defense counsel and a sex assault case featuring the checklist of common “oh, this case is b.s.” traits — and even the most outstanding svp will not be able to stop the inevitable acquittal.

    …unless the MJ blocks the insanely relevant evidence during the 412 hearing…which is the real point here.

  18. stewie says:

    Agreed, a great lawyer can push bad facts only so far, and a bad lawyer with great facts will still beat a great one with poor facts more times than not.

    Are we seeing a grossly higher conviction rate for sexual assaults? I don’t believe we are.

  19. Silence Dogood says:

    “Inevitable acquittal”? Really? Even with the panels we now send into courts-martial, properly re-educated by the Legal Dominance Feminist-inspired sexual assault training we get, and consequently, predisposed to convictions simply by reason of being accused?

    Couple that with a few other things: 1) the notion that the putative victim’s past promiscuity is off limits, but the American citizen whose liberty is actually in jeopardy will have his promiscuity used as propensity evidence against him, 2) CA’s and SJA’s who sleep soundly at night after disregarding an Article 32’s result in order to refer charges and save Big Brother’s public image, and 3) an “arguably absurdly constructed” statute that leaves MJ’s at a loss for how to instruct consistent with both the statute and the Constitution, and defense counsel at a loss for what judicial procedures and standards to expect during trial.

    Given these things, and ignoring all other social and legal prejudicial elements not mentioned, and we are far closer to needless loss of liberty than we are to the “inevitable acquittal.”

    I am willing to say neither that the “inevitable acquittal” is the rule, and the wrongful conviction is the exception, nor vice versa. But I am willing to say that, even as a woman, and despite how difficult it may be to bring justice to other women who are truly victims, stacking the deck against Americans who are presumed to be innocent is not the way to preserve the integrity of criminal justice.

    As it stands now, the playing field is not level for both men and women in sexual assault cases. Today’s playing field allows us to be promiscuous when we want, and then ex post facto to pass the blame to the man when the consequences of our actions are not palatable.

    If we demand to be treated as equals in American society simply because we are female, then we should stop demanding to be treated differently simply because we are women.

  20. stewie says:

    I agree that some of the rules are at best and charitably slanted in favor of the accuser in sexual assault cases, but you seem to take the tone that being promiscuous is somehow a factor in rape.

    Perhaps you meant a different word, I don’t know. However, I think it true that even a prostitute can be raped, and I don’t believe that a woman who really likes sex, or is even a little flirty gives up all ability to say no.

    The reality is there is not a perfect line here. We’ve been struggling to find the balance for awhile, and will continue to do so.

  21. k fischer says:


    Very well said.