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