CAAF decided the Air Force case of United States v. Bowen, 76 M.J. 83, No. 16-0229/AF (CAAFlog case page) (link to slip op.) on Wednesday, February 8, 2017.  Concluding that the military judge failed to properly consider the condition of the appellant’s wife when admitting her non-verbal response as an excited utterance, CAAF reverses the findings and the decision of the Air Force CCA, authorizing a rehearing.

Chief Judge Erdmann writes for a unanimous court.

Airman First Class (E-3) Bowen was convicted contrary to his pleas of not guilty, by a general court martial composed of officer members, of aggravated assault of his wife and also of assault of another airman, both in violation of Article 128. He was sentenced to confinement for one year and reduction to E-1.

The evidence admitted at trial included testimony by Air Force security personnel who entered Bowen’s house and found his wife unconscious and badly injured in the bathtub. An investigator testified – over defense objection – that the wife was partially conscious when she was asked if “her husband ‘did this’ to her,” and that in response the wife nodded her head indicating a positive response. Slip op. at 4. The Air Force CCA found no error.

CAAF specified an issue for review questioning the military judge’s ruling that permitted this testimony:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. SeeM.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

In yesterday’s decision, CAAF determines that the military judge did abuse his discretion in admitting the head nod because he failed to properly consider the wife’s mental capacity. The court does not reach the separate question of whether the prejudicial effect of the head nod outweighed its probative value. Considering the impact the evidence had in the case – including that the defense asserted that the other airman (the other alleged victim) was the true source of the wife’s injuries – CAAF concludes that the erroneous admission affected both assault convictions.

Outlining the facts of the case, Chief Judge Erdmann writes:

Security Forces responded to the residence and were let into the house by Bowen, who appeared disoriented. Technical Sergeant (TSgt) VAC inspected the house and found Mrs. MB [the wife] unconscious in the bathtub of the master bedroom. Mrs. MB’s head was leaning against the faucet and her hair was covering her face. Her eyes were swollen and there was a gash over one eye. TSgt VAC initially thought Mrs. MB was dead, but realized she was still alive when she heard her groan. TSgt VAC and Staff Sergeant (SSgt) T lifted Mrs. MB out of the bathtub and placed her on the bed in the master bedroom. At that point Mrs. MB was only partially conscious. SSgt T asked Mrs. MB if her husband “did this” to her. Mrs. MB nodded her head, which indicated an affirmative response to the law enforcement personnel. Mrs. MB was taken to the hospital where her blood alcohol level was registered at “221.” As a result of the assault, Mrs. MB suffered a subdural hematoma, a traumatic brain injury, seventy percent visual loss, the loss of her sense of smell, and other lesser physical injuries. A craniotomy was required to reduce the swelling in her brain.

Slip op. at 4. The wife also testified, explaining that she “had no memory of speaking with investigators and stated that, if she had any conversations with Security Forces, her statements were not reliable since she was “[a]bsolutely not” in her right state of mind.” Slip op. at 6 (marks in original).

Bowen’s defense focused on the theory that the other airman was the true source of his wife’s injuries. The other airman, however, testified against Bowen under a grant of immunity.

Reviewing the requirements for admission of an out-of-court statement under the excited utterance exception to the rule against hearsay, Chief Judge Erdmann explains that:

“A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” is admissible as an exception to the general prohibition on hearsay. . . . This court’s predecessor adopted a three-pronged test to determine whether a hearsay statement qualifies as an excited utterance: (1) the statement must be “spontaneous, excited or impulsive rather than the product of reflection and deliberation”; (2) the event prompting the utterance must be “startling”; and (3) the declarant must be “under the stress of excitement caused by the event.” Relevant to the third prong of this inquiry is “the physical and mental condition of the declarant.”

Slip op. at 7-8 (citatioms omitted). A footnote adds that the parties stipulated that the head nod qualified as a statement for the purpose of this analysis. Slip op. at 7 n.5.

Applying this test, Chief Judge Erdmann focuses on the third factor and “whether the military judge adequately considered [the wife’s] physical and mental condition.” Slip op. at 8. He finds that the military judge did not:

[W]e are unable to conclude that the military judge properly considered Mrs. MB’s mental capacity as it pertained to the admissibility of the head nod. Quite to the contrary, the military judge’s recognition that Mrs. MB was “in no position to testify about her own mental state [on the night in question] and, certainly, was in no physical condition to manifest outward expressions of excitement,” undermines the conclusion that the declarant was under the stress of excitement caused by the event. Furthermore, as even Mrs. MB testified, her memory of the events on the night in question was vague and, if she had any conversations with Security Forces personnel that night her statements were unreliable since she was “[a]bsolutely not” in her right state of mind.

For these reasons, the military judge’s brief reference to Mrs. MB’s mental capacity is insufficient to assure us that he properly considered whether the head nod satisfied the third prong of the Arnold test. By failing to adequately address Mrs. MB’s mental capacity—a critical aspect of the admissibility determination under these circumstances—the military judge committed legal error and, thus, abused his discretion.

Slip op. at 9-10. This conclusions isn’t burdened much by the highly-deferential standard of review applied to such rulings by a military judge: abuse of discretion. That standard requires more than just disagreement with the military judge’s decision. Rather, “an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016) (CAAFlog case page) (marks and citation omitted). I don’t think this case signals a shift in the court’s treatment of such rulings, however, because Chief Judge Erdmann’s conclusion turns on the military judge’s lack of analysis (a factor that reduces the degree of deference):

[T]he military judge’s brief reference to Mrs. MB’s mental capacity is insufficient to assure us that he properly considered whether the head nod satisfied the third prong of the Arnold test. By failing to adequately address Mrs. MB’s mental capacity—a critical aspect of the admissibility determination under these circumstances—the military judge committed legal error and, thus, abused his discretion.

Slip op. at 9-10.

Having concluded that the head nod was improperly admitted, Chief Judge Erdmann turns to prejudice:

The hearsay evidence was also likely material to the panel’s resolution of key issues in the case. In particular, the identity of the perpetrator was a central issue at the court-martial. Thus, the introduction of TSgt VAC’s testimony that Mrs. MB responded to the question of whether her husband “did this” to her with a head nod in affirmation—opposed to her simply groaning and making sounds—was presumably a compelling piece of evidence in the minds of the panel members. Moreover, trial counsel emphasized this evidence during closing statements. . . Moreover, we conclude that the evidence had a prejudicial impact on Bowen’s conviction for assault against SrA BB. SrA BB—the Government’s key witness—had apparent motives to lie about the events during the hours in question. Coupled with trial defense counsel’s credibility attacks against this witness, without Mrs. MB’s head nod tending to support SrA BB’s version of events, it is unclear if the members would have deemed SrA BB credible enough to convict Bowen of the assault against his fellow airman.

Slip op. at 11. This conclusion is primarily based on the prosecution’s over-reliance on this hotlycontested piece of evidence, and it highlights the danger of such a tactic.

Case Links:
AFCCA opinion
Blog post: Two interesting CAAF grants involving the hearsay rule
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Amicus in support of Appellant
Amicus in support of Government
Blog post: Argument preview
Oral argument audio
CAAF Opinion
Blog Post: Opinion Analysis

34 Responses to “Opinion Analysis: Clarifying the mental state required for an excited utterance in United States v. Bowen, No. 16-0229/AF”

  1. stewie says:

    No pun intended, but I don’t get how this got up to CAAF as it seems a no-brainer, as in she wasn’t in any mental state to be able to answer that question given she doesn’t remember it and pretty clear was, at best, severely concussed.  I don’t know how it made it past a basic competency for a witness standard, particularly when she said “I don’t remember and wasn’t in my right state of mind.”

  2. k fischer says:

    You don’t get how that happened?  Is it possible that the Military Judge wanted the Accused to get convicted so badly that he went ahead and let it in because otherwise, he would not have?  Maybe Congressional pressure has reached critical mass on those in charge of the UCMJ process that the last sentinel left his or her post?  I don’t know who the particular judge is on this case, but I don’t need to know who the judge is on any case that leaves one shaking their head to throw out that possibility because there is always an appearance that this is why prosecutors make recommendations that dumb cases get referred, Convening Authorities refer dumb case, and some prosecutors and Judges think that the Accused’s constitutional rights to a fair trial take a backseat to the victim’s constitutional rights provided for in the……..wait a second….the Constitution doesn’t mention victim protection… take a backseat to the victim.

  3. stewie says:

    Unlike you, I don’t jump to malice or intentional acts before considering incompetence or other similar venues because usually those are the right answers.
    No I don’t think the MJ “wanted the accused to get convicted so badly.” I do think the MJ had a brain fart that would clear a large plaza though.

  4. k fischer says:

    Oh, ‘incompetence” you say?  Well then, I stand corrected and feel so much better…….  Thank you, Sir, may I have another?

  5. stewie says:

    kf name me the legal system that doesn’t have instances of incompetence in it.

  6. Tami a/k/a Princess Leia says:

    I’m not sure the head nod even passes the first prong.  It problematic that the statement is in response to a suggestive question.

  7. Vulture says:

    Stewie.  Any legal system instituted under autocratic authority.  Just ask the autocrat, he will tell you it is perfect every time.  In the case of a justice system in place of an inherent autocratic society, the index of suspicion concerning error should be higher, not lower.  A general failure to effect that results from, IMHO, poor information to Congress, impunity on Commanders, and, yes, partisan judges.

  8. John O'Connor says:

    Agree with Tami.  I have a hard time seeing how an answer to a question can qualify as an excited utterance.  Those tend to be unprompted utterances.

  9. Advocaat says:

    My understanding of TBI impact on memory is that the wife’s head nod in the moments following her attack (other dude at SFS at 6 a.m., screams at 6:04 a.m., but exact SFS arrival time is not stated; it might be in the briefs, but it wasn’t in the opinion–good job, CAAF) is more reliable than her long-term memory at trial.  In its second bite, the govt should get an expert and consider adding arguments under 803(4), 804(b)(3) (it’s a stretch) and 807.  There’s also the possibility of using it as a prior inconsistent statement depending on what the wife says at the new trial.  Even without the nod, I’d rather be TC than DC in this one.

  10. stewie says:

    But we aren’t talking about memory per se, we are talking about asking a question of someone who is in the literal midst of head trauma, getting a hazy response, and then calling that an excited utterance that means it’s so reliable and trustworthy that we let it in as a hearsay exception.
    Vulture I’m not sure what your point is. No one is suggesting our system or any system known to man is 100% competent 100% of the time. But when there are errors in the system they are usually either systematic or individual. This wasn’t a systematic problem, it was a bad ruling by a judge, so we are dealing with an individual error. And those are usually caused by ignorance, incompetence, missing something, or what have you rather than “partisanship” or a desire to get a conviction (because a competent judge in this case would know that any conviction gained would be temporary because there would be a high likelihood of appellate relief in this case).
    I’m just not prone to accuse folks of intentionally doing wrong when it’s much more likely that they did wrong unintentionally.

  11. Vulture says:

    Yeah, I got it.  In another thread I was posting that it depends on what kind of tool the military justice system is.  It seemed like you where saying it was something of a Swiss army knife (my words not yours).  I see it a something of a hammer.  A lot of unintentional harms find their way to consequence and when the Courts, or Congress, doesn’t adequately provide a remedy, we are inevitably left with this switchblade.

  12. stewie says:

    It’s more a machine than tool in my eyes. It makes food in the end. Does a decent job of it, but rat and insect parts get in sometimes, and some parts of it work better than others. And a whole lot of people are ignoring the parts that need to be fixed and trying to fix parts that are perfectly fine, making it worse.
    It still works a good chunk of the time, but it could definitely get better if folks stop trying to fix the parts that work and start trying to fix the parts that don’t.

  13. k fischer says:

    I’m just not prone to accuse folks of intentionally doing wrong when it’s much more likely that they did wrong unintentionally.

    I guess I’m more inclined to believe that a MJ who is an O5 or an O6 has the knowledge and experience to make good rulings and would not be so ignorant to have a brain fart that would clear a large plaza, thereby, leaving the only motivator for such a ruling as partisanship, whether it be intentional or subconsciously.  By “subconsciously”, I recognize that the past 9 years of brainwashing you green-suiters have experienced by members of the victim grievance industry who were permitted to infiltrate the DoD and indoctrinate y’all with bs statistics and notions has come to fruition.  Maybe I should be more condescending, ala Jabba the Hutt to Bib Fortuna, and call MJ having brain farts weak minded fools for falling for these Sexual assault Jedi’s mind tricks.
    But, I assume MJ’s know what they are doing.  Just like I also don’t understand how a female SSG could drink so much that she would lose her faculties, resulting in her having sex whilst on top of the Accused, then accuse him of rape, walk out to the balcony to smoke a cigarette, then go out to the beach where she runs into the ocean.  I tend to believe that women do not lose their agency when they have alcoholic beverages.  But, I guess that’s just me because some Army NCO went to jail for that crap after being convicted by a panel.  So, yes, across the board, I tend to believe that people intend the consequences of their actions to fit their agenda or biases.  Such as effectuating the statement that “the military needs to be tough on military sexual assault” or “I don’t want anyone to think I’m a skank when the lights come on and I’m on top of the guy, so I’m going to claim rape.”  (By the way, anybody catch the 400th episode of L&O:SVU last Wednesday?  Borderline female shrink having affair with two 15 year old males screamed rape when one of the males was having intercourse, which was interrupted by her son holding a hunting rifle.  If you missed it, HULU it. My last two false rape allegations resulting in acquittals involved a BPD and a Bipolar mother who coached her daughter.)
    I admit that I don’t practice a whole lot of military law because I’m the Jerry McGuire of military justice, i.e. lousy business model of less clients with good cases and good service, but most of the rulings I’ve seen in the past 9 years in assault and sex abuse cases, save for an AF case last September and an Army case in January 2012 [come to think of it, both judge were female by the way], have been very favorable to the Government.  Then again, I could be an idiot and I don’t argue the right things, so since I don’t invoke the correct incantation of case law and rules, the MJ rules against me.  Although in that case in 2012, the MJ sua sponte overruled the Government’s motion in limine before I could say “MRE 608, your honor” by exclaiming “Oh no!  That’s motive to fabricate.  That’s coming in.”
    Maybe I’m an outlier, but it seems like it has really gotten hard on Defense counsel and accused in that MJ’s now balance the rights of the accused to a fair trial against the complaining witnesses right to a conviction.  You are a military guy, so you might not have actually practiced criminal law for the past 15 years, but I would posit to civilian defense counsel posting on this blog who do a large volume of military work’s opinion.  If they have practiced military justice since 2002 like I have and noticed a paradigm shift in the past 9 years, then perhaps statements by our previous POTUS, Congress, and media has been influential in creating a certain bias that have become systemic.  I say that it has.  What say you, Phil, Bill, Charles Gittens, and anonymous civilian DC posters?
    And, I’m starting to like this Vulture guy/gal……

  14. stewie says:

    What if that O5/O6 has very little crim law?
    Or what if they have some crim law, but didn’t really come across an issue like this?
    Or what if they simply aren’t a very good judge. Great TC/SVC, great DSJA or SJA, but just not a great judge?
    Or what if they just had a brain fart? Or misunderstood the issue? Or misread case law?
    I assume MJs generally know what they are doing, but it’s rebuttable is it not? Particularly when we have a system that does not reward with promotion specializing in crim law very often or for very long. So the odds are heavy that this was a “broadly skilled” JA who had a little bit of everything, but no deep dive in anything. And so it’s pretty believable such a person might make a mistake in an area with a lot of complexity like criminal law.
    As for whether it’s gotten really hard for the defense and the accused? It’s gotten hard-er true, but that’s because of systemic changes forced by Congress as much as anything else…and that pesky old conviction rate for sex assault cases still seems unable to get any higher than the low to mid-50s it’s always been.  So that would seem to suggest that defense counsel are more than holding their own.
    I’ve practiced criminal law the vast majority of time on active duty (and I started a year after you). I’m that weird outlier who somehow got promoted in spite of my multiple defense tours and criminal law time. Fortune favored me, or maybe it was the 50 bucks I slipped the promo board members. Regardless, up until this current assignment, I was in a pretty good position to see at least across the Army the state of play. I don’t have a problem seeing that everything since 07 on has made things worse, but I also don’t embrace the type of cynicism that assumes all MJs are evil, willing pawns trying to get everyone convicted as opposed to folks trying to do their job without perhaps the proper amount of experience and time needed to do it because they were required to be “broadly skilled” to be promoted to that level in the first place.
    But hey, I’m probably just brainwashed too.

  15. k fischer says:

    But hey, I’m probably just brainwashed too.

    I am literally verklempt as I type this, Stewie.  This acknowledgment is the first step in your recovery.  I’m glad we have finally made this breakthrough.  Come down to Columbus where I will assist you in the completion of your deprogramming by watching “A Few Good Men” 100 times until you finally admit the Marine Corps’ dirty little secret that Smilin’ Jack Ross knew all about the Code Red and tried to cover it up with sweetheart deals and frivolous objections.  I have plenty of 100 mph tape for your eyelids if you get sleepy…………or try to get up from your chair……….

  16. Charlie Gittins says:

    Kyle:  The paradigm shift you speak of is the reason I got out of the MJ business.  I could see the way the winds were blowing and I didn’t like it, particularly after I experienced a panel that had been brain washed with the “women never lie about rape” SVP crap being spewed in mandatory training that resulted in a conviction in US v. Stewart.  The President of the Court was ready to vote for conviction after opening statements.  The most bizarre thing I have experienced in trial practice. 

  17. stewie says:

    kf, I’ll pass…no means no.

  18. k fischer says:

    It’s safe to come back.  I believe that the pendulum has begun swinging the other way.  If you decide to do that and forego the serious bank you are currently making, then please let me know if and when your firm will be looking to replace you……then again, are y’all looking for attorneys in the Columbus, Georgia area?  I gotta a two-month old boy to put through college.

  19. Tami a/k/a Princess Leia says:

    I think gone are the days of presuming the judge knows the law, based on the cases in which convictions get reversed and the reasons convictions get reversed.  I think I agree with Stewie about creating a rebuttable presumption.  But what happens when there is a successful rebuttal?  Do you ask the MJ to recuse himself/herself?  Go to the chief judge for that circuit?
    A quick glance thru the opinion, based on the neighbors’ testimony, it suggests the “other guy” was the assailant.  Loud boom, screams of pain, then a man asking “what are you doing naked?”  But I don’t have access to the transcript, so I can’t say if this question was repeated.

  20. Lurker says:

    I was on the defense team in this case.  I don’t think the opinion quite gets across how the neighbors’ testimony was presented or how persuasive it was to the members.  At trial, we thought the testimony of the neighbors was the hurdle we couldn’t leap.  Victim’s head nod, while hurtful to our case, was mitigated through cross of the responder and victim’s testimony.  We had few options when it came to the neighbors.
    The neighbors actually shared a wall with the Bowens.  The wall was between the Bowens’ master bathroom (where Victim was found) and the neighbors’ bedroom.  They had heard screaming matches and fights between the couple on prior occasions, so they were fairly familiar with how Bowen’s voice sounded when he was angry and yelling.  
    The difficulty with the neighbors was that the male voice was not one of concern or alarm – they testified that the voice was extremely angry and/or accusatory.  At the same time as this yelling, the neighbors heard heavy crashing sounds and running shower water from the bathroom.  Another problem was the timing of the events.  The sounds in the bathroom were occurring roughly at the same time that the other male was arriving at security forces reporting the incident.  Finally, our client was soaking wet when SF arrived at the house, while the other guy was relatively dry.
    An interesting twist now is that I do not believe the government can re-try Bowen.  After their failure to obtain a punitive discharge, the government immediately pursued an administrative discharge board to get a UOTHC.  They won the discharge, but it was only a general.  The legal office then pushed a request to TJAG to have Bowen’s discharge executed despite the pending appeal.  The request was approved and Bowen was discharged.  I haven’t looked into it closely, but I think Bowen is untouchable now.  The government’s rush to get him out of the Air Force likely has terminated their jurisdiction over him.

  21. Ed says:

    Is there any possibility the retrial could take place in USDC or does the original election by government preclude that?

  22. JustAnotherADC says:

    So-called “Lurker” who claims to be on the trial defense team for Bowen.  Let me kindly remind you of your continuing duty of loyalty and confidentiality to your client, and advise you to not post information on a public blog relating to his representation.  If you did indeed represent Bowen at trial, good on you for your efforts.  Don’t try to insert yourself into a post-trial process that appears to have benefited your client in an effort to obtain blog-glory for your brilliant trial strategy or your difficulties in developing a defense strategy.

  23. Philip D Cave says:

    Let me kindly remind you of your continuing duty of loyalty and confidentiality to your client

    That was my reaction too, although I might have worded that comment differently (example, I did not take the comment to be seeking further glory).  For all of us with cases pending in the system–either trial or on appeal–I would recommend we not post comments about that case here unless the case is final.  We all of us are tempted to add “facts” to aid the discussion.  But community knowledge is trumped by the duty.
    Remember the wording of MRE 801(d)(2)(A)(C)(D).  This rule is one of the reasons I’ve been trying to get military judge’s to consider a complaining witness a de facto party.

  24. No Means No says:

    Stewie is right.  Some of you folks should remember this basic precept.

  25. k fischer says:

    Lurker did not expose any attorney client communications.  He just discussed the evidence and said that the appellant was out of the military.
    So, when the US military follows the lead of the Canadian system and allows the Government to appeal acquittals, notwithstanding double jeopardy, then I guess DC can’t brag about their victories, either, because they won’t be final?  Dang!
    Speaking of the Canadians, this is pretty scary.  Seems like over the past 4 years, there has been a 25% unfounded rate in the approximately 5,000 sexual assault reports in the military per year.  Perhaps, the SecDef should order NCIS, CID, and AFOSI to scrub the 5,000 unfounded reports to make sure the victim’s rights to a fair trial in the………..whatever that Amendment is that escapes me right now……are protected.  An interesting study in the Army would be to track unfounded rates according to SVP’s who are stationed at a particular post during a particular time period.  They would probably be quite similar to what they found in the different jurisdictions in Canada.  I’m available and still waiting on an invitation to speak at one of those Judicial panels.  Another interesting study would be to look at the unfounded rates in Family Advocacy reports of physical and sexual abuse.  I would imagine it is <1%.

  26. JustAnotherADC says:

    k fischer – recommend you pick up your MPRE materials from the second year of law school, and check out this thing called the ethical duty of confidentiality, which is broader than “expos[ing] any attorney client communications.”  Also, if you’ve ever defended a client at a discharge board you might have learned that these proceedings are protected by the Privacy Act.  I’m not saying that “Lurker” has definitively violated either of these, but it is likely wise that he or she has chosen not to continue discussing the matter on a public blog.  Identifying oneself as a trial defense counsel for a specific client puts one in a small set of people that is somewhat identifiable.  Best not to even approach the line of what is or is not covered by the duty of confidentiality (which is broader than “privilege”).  Also, best not for other defense counsel here to think it’s ok to do so in this online community. So, as Phil pointed out, if my rebuke was stronger than necessary, my apologies to “Lurker.”  But it was well intended, and it’s a correct statement of the perils for defense counsel when they openly discuss trial strategy or details about a case in a public forum.

  27. k fischer says:

    You assume that my wife has allowed me to keep my law school 2L study materials in my attic.  Plus, why go through all that trouble when I can just Google it
    I stand corrected.  And, thank you for calling me out and providing this much needed lesson to an old dog who still is open minded enough to learn tricks.  You Air Force JAG’s are pretty squared away.

  28. stewie says:

    No Means No: It’s always good to have a secret stalker admirer on Valentine’s Day.

  29. k fischer says:

    Actually, according to this article at Footnote 46, 60% of women studied admitted to engaging in token resistance.  By the way, for those SVP’s who have little experience with the way things work in the world by way of coitus, alcohol, and alcohol and coitus, I highly recommend that you read this article.  It’s pretty well written and easy to understand.  I recommend that EVERY defense counsel reads it.
    Hat tip to Don Rehkopf for sending me this article.  This would be a good Scholarship Saturday article…..hint……Zeke……..

  30. stewie says:

    I believe in hard science very much, but soft/social science studies? Sorry I’m a little more skeptical. You can find one to fit your paradigm/bias either way. You can have one that says only 2% of all women false report sex assault (which is pretty clearly not right), or that almost half of all women false report (which is also pretty clearly not right).  What the right number is? I have no real clue, just guesses based on my limited experience…probably double digits, but probably not bigger than 20%. 
    I don’t think I’ve ever had a sexual encounter that involved “token resistance.”  Of course, I’m pretty clear about letting the woman take the lead to erase any doubts in that area, so maybe that’s why, don’t know. I have no doubt it happens, and more than infrequently, and I have no doubt that plenty of “old school” women engage in a “courtship dance” that involves maintaining the illusion of virginal chastity. But 60%? Yeah, no clue and it’s certainly not hard science.

  31. DCGoneGalt says:

    I was excited about this discussion until I realized you weren’t talking about the Fellowship of the Ring with the analysis of “Tolkien Resistance”.

  32. cjb762 says:

    Charlie Gittinssays:
    February 10, 2017 at 2:55 PM

    Kyle:  The paradigm shift you speak of is the reason I got out of the MJ business.  I could see the way the winds were blowing and I didn’t like it, particularly after I experienced a panel that had been brain washed with the “women never lie about rape” SVP crap being spewed in mandatory training that resulted in a conviction in US v. Stewart.  The President of the Court was ready to vote for conviction after opening statements.  The most bizarre thing I have experienced in trial practice.

    Charlie, you need to stop beating yourself up about Stewart.  He was convicted because he was guilty – he admitted as much to the victim’s brother.  A jury of his peers looked at all of the evidence and decided that he was guilty of having sexual intercourse with a woman who was passed out and unconscious at the time.  The evidence would have resulted in a rape conviction under the old article 120 before all the SVC crap as well.  I also don’t recall the president being “ready to vote for conviction after opening statements,” and I’m not sure how one would be able to determine that anyway.

  33. cjb762 says:

    Charlie – I apologize.  I was just reminded that you completely waived the defense opening statement in the Stewart case, so it may very well have been that the president was ready to “vote for conviction” after opening statements  (or “statement”) since they only heard from the government.