CAAF will hear oral argument in the Army case of United States v. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” Gov’t Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

Erikson’s brief makes four arguments. First, it argues that the military judge mis-applied Mil. R. Evid. 412 by balancing the privacy rights of the alleged victim against the Constitutional rights of the accused. App. Br. at 10. Such balancing is required by Mil. R. Evid. 412(c)(3), however CAAF rejected that test in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011), and United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011). Nevertheless, it remains part of the rule more than a half-decade later.

The second argument is that the military judge’s ruling was based on cases that are distinguishable from this case. App. Br. at 11.

The third argument is that the military judge wrongly concluded that introducing evidence of the prior allegation would have required a trial-within-a-trial because “the motive to fabricate both allegations would have required only one additional witness, [the prior alleged offended].” App. Br. at 12.

Finally, Erikson argues that the intended cross-examination was specifically permitted by Mil. R. Evid. 608(b) as an inquiry into the alleged victim’s truthfulness.

The Army Appellate Government Division’s brief argues that the prior allegation is relevant only if it was false:

Similarly, the evidence of the abusive sexual contact accusation against [the other guy] was properly excluded under Mil. R. Evid. 412(a)(l) and was not constitutionally required because it was only relevant if the panel was able to decide the accusation was indeed false and it was not material to appellant’s defense. The sexual assault was alleged by incapacity; therefore, evidence of SPC BG’s prior accusation would only have been relevant to whether SPC BG fabricated her testimony about her own intoxication and fabricated her lack of consent to the sexual act. (JA 5, 70). The importance of impeaching SPC BG on her level of intoxication and lack of consent was lessened by the significant amount of evidence from other witnesses demonstrating that SPC BG was highly intoxicated and unable to consent.

Gov’t Div. Br. at 18. The Division also makes a strong argument that Erikson didn’t need to introduce evidence of the prior allegation in order to present a complete case regarding the alleged victim’s motive to fabricate:

The defense theory during trial was that SPC BG fabricated the sexual assault claim against appellant because she was afraid other people knew she had sex with appellant and she wanted to preempt SSG PG’s discovery of the incident to save their relationship. (SJA 281-84, 286-89, 291-94, 296-97). The defense did not need the evidence of the prior accusation to present its theory of SPC BG having a motive to fabricate. The defense cross-examined SPC BG on her motive to fabricate by questioning her about her relationship with SSG PG and that she reported the sexual assault after she found out that appellant was talking about it. (JA 42-43, 58-59). The defense also called multiple witnesses who testified that SPC BG was an untruthful person. (JA 143, 148). Considering the defense theory and the evidence that was admitted, it was unnecessary for the defense to admit evidence of SPC BG’s prior allegedly false accusation.

Gov’t. Div. Br. at 18-19.

Even if CAAF concludes that the military judge should have allowed the defense to introduce evidence about the prior allegation as additional evidence of the alleged victim’s motive to fabricate the allegations against Erikson, the Army Appellate Government Division’s brief lays the groundwork for a strong argument that any such error was harmless beyond a reasonable doubt.

Case Links:
ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Blog post: Argument preview

25 Responses to “Argument Preview: Considering the admissibility of an alleged victim’s prior allegation in United States v. Erikson, No. 16-0705/AR”

  1. DoubleYale says:

    Surprised this wasn’t a summary reversal.  CAAF must be starved for cases.

  2. k fischer says:

    DoubleYale,
     
    I agree about the summary reversal.  Although I don’t understand how CAAF would have an impact on a MJ’s ruling because it was starved for cases.
     
    I cannot understand how the two false allegations were dissimilar.  They seem to mirror each other:  Convo with boyfriend about relationship–>false allegation of sexual assault–>reports to boyfriend sexual assault with the expectation that he will white knight for her.  This is quite similar to Jackie Coakley with the UVA rape hoax, as well as this recent case where some crazy white girl had sex with two football players in a bathroom with the premeditated intent of falsely accusing them of rape so that she could get the attention of some boy she was interested in.  This appears to be what the defense was going to argue.  I don’t see how her false allegation against SPC Mergen to show that she probably is lying about this sexual assault is any different than the admission of a previous allegation of sexual assault allegedly committed by the Accused under 413.  Does the actual accusation have to be of a similar nature, breast touch while sleeping vs. intercourse while intoxicated.
     
    And, I don’t understand that whole trial within a trial nonsense.  Seems pretty clear cut to me.  What’d she say about you?  Was it true?  Did you face a Court-martial?  What happened?  Do you think she’s an honest person? No further questions.  Then, the Government asks her about whether the accusation was true.
     
    On top of all that, a witness heard her say, “F***me!  F*** me harder!”????????  C’mon!  Where is the factual sufficiency analysis with the CCA on this one?  Does the CCA have to list the facts before summarily affirming a conviction?  Because these facts scream reasonable doubt.
     
    Three other observations from my knowledge of the way things work in the world.  First, this case could have easily been US v. SPC Devon Hunter, instead of US v. Erikson.  Her phone call to DH was probably intended to make him come over for some afternoon delight, so she could falsely accuse him to get SSG PG interested in her with the ancillary benefit of getting back at DH for breaking up with her.  Second, I would venture to guess that she has a Borderline Personality Disorder with narcissistic traits.  Sounds like she has fear of abandonment issues with her boyfriends (BPD), so she seduces then falsely accuses an innocent person of sexual assault (Sociopathic/Narcissist).  Third, SSG PG probably will need a lawyer when he gets sick of her crap and files for divorce; I would bet money that there is an open Family Advocacy file on him.  She will run to CID and claim marital rape.  Hopefully, he has begun recording her craziness and outbursts, so when it goes to a GCM regardless of the IO’s recommendation, he can be acquitted.

  3. RY says:

    I agree with government that key is falsity of prior allegation.  If there is sufficient evidence of falsity, however, that alone should be sufficient for admission, whether the offenses are very similar or not, because it goes to the alleged victim’s credibility.  If it is a similar allegation, that’s gravy on top because the fundamental issue is this:  Members, she made it up.  What kind of person would make this up?  This kind.  She’s done it before.  That alone could be enough to raise reasonable doubt.  It’s exceptionally prejudicial and nearily impossible for Gov’t to overcome.  If there was sufficient evidence of falsity and the jury did not know about it, it takes a lot more evidence than this to call it harmless.

  4. k fischer says:

    RY,
     

    If there is sufficient evidence of falsity, however, that alone should be sufficient for admission, whether the offenses are very similar or not, because it goes to the alleged victim’s credibility.
     

    So, I remember during my last court-martial one of the voire dire questions said words to the effect of “Could each panel member convict based on the alleged victim’s testimony alone if they believed she was credible beyond a reasonable doubt?”
     
    So, why is it that when the burden is PBARD, a person’s testimony that “he assaulted me” enough without any corroboration, but when the burden is less than PBARD, the falsely accused’s testimony that “I didn’t do that; I was falsely accused” is not enough?  And, I wonder how the MJ would have ruled if Erikson had been accused previously of sexual assault by touching a sleeping female’s breast and the Government wanted to get it in under MRE 413?

  5. k fischer says:

    I wonder if the defense called SPC Hunter to the stand for the 412 hearing to testify that BG was an untruthful person.  They obviously did at trial.  Since he was supposed to be the white knight in the false allegation against Mergen and he now believes that she is untruthful, then I think that also adds to the evidence that the allegation was false.

  6. Bill Cassara says:

    So the government can put on other allegations against an accused, but the defense can’t put on other false allegations against an accuser. Thank you Sen McCaskill.

  7. A Random JAG says:

    The effect of an acquittal for the admissibility of evidence under 412 vs 413 is really disturbing

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

    SPC Hunter should consider himself lucky.
     
    Why do people lie about being sexually assaulted?  To gain a white knight.  http://www.ctpost.com/local/article/Police-Football-players-falsely-accused-of-rape-10950934.php

  9. J.M. says:

    Tami, 
    Don’t forgot they also get (usually) a PCS to a better post and immunity for all misconduct in the near future. I sat in on a post trial 39A for a Soldier convicted of rape (was NCOIC of the detail to transport and guard him and pickup the witness). The 39A was to bring in a potential witness (accusers roommate at the time) whose name was not provided to the defense. She testified that the accuser never mentioned a sexual assault until she was in trouble for something else and for weeks the accuser frequently bragged how she was untouchable and could get away with anything.
    The conviction was overturned (he was not recharged) and that night we took the Soldier back to the brig to collect his personal items and brought him back to base. 6 months in the brig, lost literally everything he owned (wife divorced him, took or sold everything he owned and left town) except what he took to the brig with him. And the two duffel bags of personal stuff that his wife left with the unit to be locked in supply were found to contain nothing but trash. Not to mention how our 1SG used to say “Where’s Smith? Where’s our rapist at?” in front of troop formations. When I brought him back, I was told to drop him off at the replacement center (on a Friday night with an expired id and no cash), he wasn’t the units problems anymore. 
    This was also the same unit where our Squadron commander stood in front of a mass formation on Denim Day and told us that if you were accused of sexual assault you would be court martialed no matter what. 

  10. J.M. says:

    Correction: We were ordered to return him to the brig on Friday afternoon to be out processed the following week. His TDS raised hell and we had to return that night to pick him up. 

  11. k fischer says:

    The effect of an acquittal for the admissibility of evidence under 412 vs 413 is really disturbing
     

    It appears that they are congruent in that they are both designed to screw the accused.  If an accused is acquitted of a previous sexual assault charge, then the acquittal doesn’t matter and it comes in under 413.  Remember that US v. Solomon notes that 413 is a rule that inherently favors admission of evidence.  If the complaining witness makes a previous sexual assault allegation where the accused is acquitted and states that the complaining witness lied, then the acquittal doesn’t matter and the evidence is not admissible because 412 is a rule that inherently favors exclusion.
     
    On a positive pendulum swinging reversal note, GA House Bill 51, which is the first piece of legislation I have seen in the last 50 years that takes any step whatsoever to ensure the rights of the accused in a sexual assault investigation by colleges, is being voted on today.  Of course, Atlanta Women for Equality is against it because giving the accused the right to present evidence or cross examine a witness accuser makes it too onerous for victims of sexual assault to come forward.  Considering that these sexual assault victims are virtually all female, I’m not sure that their use of the word “Equality” is fitting.

  12. stewie says:

    1. Not every acquittal comes in under 413. I’ve kept them out, I’m sure you and others have as well. 403 still applies.
    2. A true claim of another sex assault isn’t relevant unless it is offered as part of MO, identity, etc etc. So what we are really talking about here is FALSE claims of sex assault. So how do we determine that? To me there are a couple of paths:
     
    a. Use conviction/acquittals/retractions. If there’s an acquittal (or retraction) then that’s enough evidence to make a credible argument it was a false report.
     
    b. Just let the other prior accused testify it wasn’t true regardless of other indicia of truth/falsity. Of course, that means abandoning any means of testing that veracity OTHER than a yes “trial within a trial” through direct and cross of the other prior accused, perhaps even calling other witnesses to establish facts on whether she was or was not lying.
     
    The problem with b. is that we are in fact mixing in a trial within a trial with all the confusion that can generate. The problem with a is it might be too narrow because cases don’t go to resolution for all sorts of reasons (AV is lying, or the jurisdiction refuses to go forward, or some other reasons that may not mean the AV is lying or that it’s a “false report.”).
     
    I don’t think it’s an easy answer because there are issues/problems that go both ways. I don’t think the answer should be as rigid as it is now when you seemingly almost never allow a prior allegation to be examined, but I also don’t think the answer is as wide open as some of you suggest either.

  13. k fischer says:

    Why is an allegation of sexual assault where the accused was acquitted even addressed under MRE 412?   The acquitted third party, i.e. Mergen, is saying that no contact occurred in that he never touched BG’s breast.  So, the defense isn’t arguing that sexual contact occurred.  Defense counsel is arguing that no sexual contact actually occurred, Mergen will testify that no contact occurred, Mergen was acquitted, and boyfriend at the time SPC Hunter thinks that BG is a liar.
     
    I am hoping that CAAF will find a clear abuse of discretion as it did in the 413 case of US v. Solomon where the accused was acquitted and had an alibi, which the judge did not address, and reverse.  But, one of the questions I would like answered is whether or not an offer of proof that an allegation was false in that there was no sexual contact at all is actually 412 evidence.  I can see where if Mergen’s issue was consent, then it would be 412 because there was actual sexual contact.

  14. stewie says:

    Well, 412 is where the gov wants to put allegations that an AV made a false prior SA allegation. I agree with the defense view that it’s not a 412 issue, it’s a relevancy and 403 issue/determination, but thus far, it seems the courts and the GOV agree that it’s a 412 issue.
     
     

  15. DoubleYale says:

    You guys keep arguing if you want, but just refer to my first post.  That’s all you need to know.  This is not a close case.  Shocking waste of resources to brief and argue it, really.

  16. k fischer says:

    DoubleYale,
     
    Has there ever been a summary reversal in a Sexual Assault case, particularly by ACCA?  I would imagine that ACCA, if it did reverse in a sexual assault case, would provide analysis with painstaking detail.
     
    But, I’m curious.  Would it be a summary reversal for factual insufficiency or for abuse of discretion with the judge’s ruling on the prior false allegation?

  17. k fischer says:

    Stewie,
     
    I know that US v. Smith indicates that MRE applies, but that was a case where there was sexual conduct between the vic and another party with the issue being consent.  Are there any cases that address the applicability of MRE 412 where the issue isn’t a false allegation in terms of consent, but rather, where the defense was that no previous contact happened between the vic and third party?
     
    Also, I find it curious that the Court would depart from the Drafter’s analysis for MRE 412:

    The Drafters’ Analysis to M.R.E. 412 states “[e]vidence of past false complaints of sexual offenses by an alleged victim of a sexual offense is not within the scope of this Rule and is not objectionable when otherwise admissible.” Manual for Courts–Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22–36 (2008 ed.).2

    U.S. v. Smith, 68 M.J. 445, 451 (App. Armed Forces 2010)(Erdmann, dissenting in case where the alleged victim had sexual contact, but issue was consent) 

     

  18. stewie says:

    Your distinction just doesn’t have much of a difference to me because usually just talking about a false rape allegation gets you into 412 before you even get to the details of whether it is false because it never happened at all, or it’s false because it was consensual.
     
    I’m just saying that’s what I’ve seen in practice.

  19. RY says:

    Stewie – I agree that judges often lump it together in practice, but I don’t agree that makes it the right answer.  I’ve often questioned how it is MRE 412 and several CAAF judges (I think four of the five) seemed to specifically agree during oral argument that, in essence, if the alleged victim asserts the previous incident at issue was nonconsensual, then it is not victim’s sexual behavior – she didn’t willingly engage in the act, it’s what someone did to her.  I think trial judges have been way too conservative here.  I had a judge characterize pregnancy as MRE 412 because saying someone was pregnant means they engaged in sexual behavior…well so too would be saying they have kids. 

  20. stewie says:

    I’m pretty sure I said it wasn’t the right answer. To me the right answer is it’s simply a relevance and 403 issue, nothing more, nothing less.  Does it make a fact of consequence more or less likely? Does it pass a 403 analysis?

  21. Michael Korte says:

    For those who think this is a slam dunk for the defense, I encourage you to listen to the audio and/or read the briefs — not because I want to convince anyone to change their mind, but just so you aren’t stunned and hurt when CAAF comes back with an opinion that isn’t a summary reversal.  
    This wasn’t as clear cut as the summaries make it out to be.  If you remember that OJ Simpson fellow, you’ll understand the basic principle that Not Guilty does not equal Innocent. Similarly, when your sex assault allegation results in an acquittal it does not mean you made a false report (but go ahead and tell your client and friends that, because if believe it was false – your guess is as good as any for the reason for the result). 

  22. k fischer says:

    MK,
     
    (tldr/CAAF better not summarily reverse!  This could be one of the most important opinions they will write for sexual assault cases.)
     
    I don’t know. Froggy voiced male judge seems like he wants to lend some weight to the acquittal when he was questioning the Government Appellate Counsel.  Froggy voiced male judge wants to know why this is a 412 case.  Government made a good point that if the MJ determines that it is not demonstrably false, then the event happened and would fall under 412.  If the MJ found that the event was demonstrably false, then it wouldn’t be 412.  FroggyVMAJ also seemed to want to lend some weight to the acquittal and I got the opinion that he possibly felt an acquittal at a Summary Court sometimes is more difficult than an acquittal at a panel CM.
     
    I would look at this under the Defense point of view.  If the previous assault allegation was purported by the Defense to not have occurred at all, then its not 412 in that the evidence is not being used to show predisposition for sexual behavior or previous sexual behavior.  If the previous sexual behavior in the assault allegation was purported by the Defense to have occurred, but it was consensual and that she lied about the consensual nature of the behavior, then I would probably think it applies under 412(a)(1) because you would be offering evidence to prove prior sexual behavior, that it occurred, but it was consensual.  That is evidence of sexual behavior.  I would imagine that might even buttress the 403 analysis for the Government, as there is a higher possibility that the panel would think that she engaged in consensual conduct there, then she must have consented here.  I think it would be a pretty high bar, like a recantation by the alleged victim, that the acts were consensual in order to get it admitted, a video showing the acts were consensual, a direct eyewitness to overcome that burden under 412 and 403.
     
    My money says they are going to say that the MJ erred by applying 412, but the MJ’s ruling under 403 will not be reversed because it wasn’t demonstrably shown that the allegation was false. 
     
    I found the female judge’s question that were words to the effect of, “Well, didn’t the defense have plenty of tools to impeach the alleged victim” typical in today’s environment, and troubling.  When you go to trial defending the accused, you are up against a panel who has been misindoctrinated in many different ways by SHARP regarding sexual assault, you have incredible pressure from Congress to convict by holding promotions, you have a panel who is hand selected by the CG, you have an SVP who practices only sex cases, who has a team of prosecutors and investigators at his disposal, and your attorney has the other TDS attorney.  Defense attorneys need every piece of admissible evidence to protect their client.  So, when I hear government counsel make argument in their motions in limine that the defense has all it needs to impeach a witness, or an MJ tell the defense how to try its case because it has plenty of tools to impeach, or an appellate judge say, “Well, didn’t the DC have other ways it could have impeached the witness?” it is incredibly frustrating.  The issue is admissibility.  If the MJ erred on the ruling regarding the admissibility of evidence particularly in a weak case, then it is reversible error unless the evidence on the other side was so overwhelming that the Accused would have been convicted, which seems to be a very high burden to overcome by the defense, as well.  And, I think that MJ’s have grown lazy and accustomed to limiting the Defense from trying their case by erring on admissibility because they know the appellate courts will find that it was harmless beyond a reasonable doubt.
     
    And, I will be disappointed if CAAF reverses summarily.  In this case, CAAF has the opportunity to provide some clear analysis on the interplay between 412 and defense’s attempts to get prior false allegations into evidence.  This is something that has the potential to occur more and more, particularly where people falsely claim victimhood to game the system. CAAF can answer questions like:
     
    Is a prior false allegation sexual assault covered by 412, or isn’t it, or is it sometimes but not others? 
    Is it modus operandi or is it motive to fabricate or could it be a hybrid type I will term “motive operandi,” which it appears to be in this case?  I.e. Every time you get this female in this situation where she has a similar motive to fabricate, her modus operandi is to lie and falsely accuse someone of sexual assault? 
    How much evidence does the defense have to put on to show the allegation was false? 
    Does the denial by the previous falsely accused individual have limited weight because that’s what you would expect them to do, i.e. deny that the assault occurred?  Doesn’t a person who falsely accused another individual have the same motives to deny that they are lying?
     
    This could be one of the most important opinions that CAAF writes for sexual assault cases that will provide clear guidance on sexual assault cases where there is evidence that the alleged vic previously made a false allegation.  I hope they agree and knock it out of the park, so we can have some guidance on how to put these pieces of the puzzle together in accordance with the military rules of evidence at Courts-martial.

  23. k fischer says:

    RY,
     
    I had a case where one of the charges was marital rape, the wife was engaged to another Ranger within a week of leaving my client and told him she wanted a divorce, and she wrote my client’s mother a Facebook message saying words to the effect of, “If [Accused] doesn’t agree to the terms of the divorce, then I’m going to have to fight dirty.”  The next day when he didn’t agree, she went down to CID.
     
    I tried to question her regarding her engagement with the Ranger because that was her motive to fabricate.  She wanted him to divorce her, fought dirty by making a false allegation to facilitate her divorce, so she could marry this other Ranger who she was engaged to.  Government objected to me asking her about being engaged to another Ranger under 412.  Judge sustained the objection.  I argued that being engaged has nothing to do with sexual behavior, but the MJ did not agree.

  24. stewie says:

    I don’t agree with the analysis that says if it’s lying about consensual sex that it falls under 412.  412 was intended to get rid of the “she’s a slut and wanted it” defense that was used prior to 1980.  It was intended to protect the alleged victim, rightfully, from having to prove her chastity in order to be able to be believed on a sex assault claim.
     
    Lying about a prior claim of rape is not about sexual conduct. It is true that tangentially it involves sex but it’s not the part that is going to be presented to the panel, and it’s not being presented to the panel in a manner meant to subvert the protection 412 was designed for.

  25. DoublePrinceton says:

    DoubleYale, I have to disagree.  This is well worth the briefing and argument.  And these fine folks wouldn’t be bickering so much if there wasn’t very much something to all this hubbub.

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