CAAF decided the Army case of United States v. Erikson, 76 M.J. 231 No. 16-0705/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 9, 2017. CAAF finds that it was not error for the military judge to exclude evidence that the alleged victim made a prior allegation of sexual assault against a different person because the prior allegation was not proven to be false. Accordingly, the court affirms the summary decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of three issues, all of which were personally asserted by 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.

Issues II and III are resolved with a footnote to CAAF’s opinion in United States v. Ortiz, 76 M.J. 189 (C.A.A.F. Apr. 17, 2017) (CAAFlog case page).

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 adjudged sentence.

Judge Ohlson provides the following facts:

The defense moved pretrial to admit evidence that a prior accusation of sexual assault that SPC BG made against another soldier was false. As evidence of the falsity of this prior accusation, the defense primarily cited the acquittal of the other soldier at a summary court-martial. The defense argued that this evidence “provides evidence of [SPC BG’s] modus operandi, or her plan, or her pattern, of why and how she accuses other men of assaulting her even when untrue.” Specifically, the defense asserted that in both instances the victim falsely accused a fellow soldier of sexual assault in order to gain sympathy from a boyfriend and to thereby mend their rocky relationship. The military judge convened a closed Article 39(a), UCMJ, § 10 U.S.C. 839(a) (2012), session to hear the defense’s argument, the government’s response, and testimony on the matter.

The military judge ultimately denied the defense motion, finding that the prior accusation of sexual assault was not admissible under Military Rule of Evidence (M.R.E.) 412 or any other rule. The military judge ruled that the prior accusation was not proven false, even though the accused was acquitted by summary court-martial.

Slip op. at 4 (marks in original). CAAF doubts that Mil. R. Evid. 412 (the military’s rape shield rule) applies to these facts, but Judge Ohlson plays along:

We question whether M.R.E. 412 actually applies in this case. We fail to see how the sexual assault of a victim relates to that victim’s “sexual behavior” or “sexual predisposition.” However, because the parties analyze this case in the M.R.E. 412 context, we preliminarily do so also.

Slip op. at 6 n.2. The falsity of the prior allegation, however, is the crucial factor:

The Drafters’ Analysis of M.R.E. 412 states that: “Evidence 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.” Drafters’ Analysis app. 22 at A22–41 (MCM Supp. 2012 ed.).

Consistent with this principle, in McElhaney we upheld a military judge’s ruling prohibiting defense counsel from calling a witness to testify that the victim’s prior accusation was false, because “defense counsel proffered no evidence showing the complaint to be false, other than the unsurprising denial by [the accused].” 54 M.J. at 130.

Slip op. at 7.

CAAF finds that the defense failed to show that the prior allegation in this case was false.

Judge Ohlson explains that the evidence offered to show that the prior allegation was false consisted of a summary court-martial acquittal, the testimony of the prior accused, and the testimony of an eyewitness (who the military judge found wasn’t actually an eyewitness). Slip op. at 8. The alleged victim, however, testified that the prior allegation was not false. Id.

The military judge considered all of this evidence and concluded that the prior acquittal didn’t decide the issue, and that the alleged victim’s claim that the prior allegation was true was more credible than the prior accused’s denial. CAAF affirms that decision, with Judge Ohlson explaining that:

Upon a de novo review of the military judge’s finding that Appellant did not meet his burden of proving that the prior sexual assault accusation was false, we conclude that the military judge properly stated and considered the law and did not err. First, the military judge was correct in concluding that the summary court-martial acquittal regarding the victim’s prior allegation of sexual assault was not dispositive of the falsity of the allegation. Second, he was correct in concluding that the denial by the prior accused was no more persuasive here than in McElhaney. And third, the military judge did not abuse his discretion in finding that SPC BG was more credible than the witnesses who testified on behalf of the defense. Therefore, because the military judge correctly concluded that SPC BG’s prior sexual assault accusation was not proven false, we hold that he did not err in ruling that this evidence was not admissible at trial.

Slip op.a t 9.

The only-relevant-if-false prerequisite is really the heart of this opinion, and it exposes a significant flaw in the defense theory of admissibility for the prior allegation. Judge Ohlson’s opinion explains that the defense offered the prior allegation to prove the allged victim’s “modus operandi, or her plan, or her pattern, of why and how she accuses other men of assaulting her even when untrue.” Slip op. at 4 (quoting defense counsel). This seems to be a pretty obvious effort to introduce evidence of the alleged victim’s character to prove that she acted in accordance with it on a particular occasion. See Mil. R. Evid. 404(a)(1) (prohibiting this). Modus operandi, for example, is only relevant to prove identity (and the alleged victim’s identity wasn’t at issue). See United States v. Rappaport, 22 M.J. 445, 446 (C.M.A. 1986). A prior false allegation, however, is a specific instance of conduct that attacks character for truthfulness, admissible under Mil. R. Evid. 608(b).

It’s easy to wonder how, then, an accused might ever successfully show that a prior allegation was false, but that’s a highly fact-dependent issue. But considering that Judge Ohlson’s opinion employs a de novo standard of review of the military judge’s ruling that the prior allegation was not proven to be false (reviewing only the credibility determination for an abuse of discretion), it’s clear that CAAF will give limited deference to a military judge’s rulings on this issue.

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

14 Responses to “Opinion Analysis: Prior allegations must be false to be admissible, and the defense failed to prove that prerequisite in United States v. Erikson, No. 16-0705/AR”

  1. stewie says:

    The acquittal in and of itself isn’t enough. But what if the REASON for the acquittal was that the accused in that case had a clear alibi defense let’s say and couldn’t possibly have done it. She says CPT America raped her in 1963, but then we learn he’s been frozen in ice from the late 40s until near-present day and thus could not possibly have done. The evidence would do it, but not the mere fact of an acquittal. I’d say put on evidence from the ROT, particularly if it’s sworn testimony. An admission that the allegation was false would do obviously. Otherwise, if you could put on enough evidence from say witnesses or others in a position to know whether a prior allegation was false maybe that works too.
    But just an acquittal won’t do it.

  2. DCGoneGalt says:

    But wouldn’t that lead to counsel potentially turning it into a re-litigated case of the prior allegation and lead to 403 exclusion?

  3. Zachary D Spilman says:

    Prior bad acts (like making a prior false allegation) to show character for untruthfulness, admissible under Mil. R. Evid. 608(b), may not be proven with extrinsic evidence (because it’s collateral). If the prior allegation is false then counsel can ask about it on cross-examination, but is stuck with the alleged victim’s answers. So, there’s no danger of a trial-within-a-trial. 

    The problem with the effort to admit the prior false allegation in this case is that there doesn’t seem to have been a clear theory of admissibility under the rules. That’s a common problem for both sides in courts-martial when dealing with evidence of other acts (meaning things other than the acts on the charge sheet).

  4. stewie says:

    DCGG, you have to be able to get over the hump in the motions hearing to even ask the question on cross, that is where you’d introduce the evidence, at the motions hearing. No rules of evidence, but if you provided enough evidence at the motions hearing that it was in fact a false allegation then you could convince a judge to let you bring it up on cross at trial.
    Also, character for truthfulness can be shown by other witnesses. So you could also call someone to say she is untruthful. Ostensibly this would be the person who either had the false rape allegation made against them or it could be someone who has knowledge of it.  Assuming you’ve met the bar in the motions hearing, and can establish enough personal knowledge to opine on the trait, the Gov would then have to decide whether they want to get into the false rape allegation part of it, or simply leave it at generic character evidence.
    Point is, I think there are still paths for a good DC to get at this, but it’s by no means easy or certain or even necessarily likely.

  5. The Silver Fox says:

    While the Mil. R. Evid. 404(b) argument is clever (though I wouldn’t have gone with M.O. as my “route around the propensity box”), there’s always Mil. R. Evid. 608(c), which DOES allow extrinsic evidence (“evidence otherwise adduced”).  That said, not clear how there’s “[b]ias, prejudice, or motive to misrepresent . . .” in this case. 

  6. Zachary D Spilman says:

    608(c) is one of many ways to introduce extrinsic evidence of other acts, The Silver Fox. But that’s the wrong (though typical) place to start the analysis. 

    The place to start is with what the other act is (really) offered to prove.

  7. The Silver Fox says:

    Spoken like an appellate lawyer.

  8. Lieber says:

    Silver Fox is right that 608(c) is the mechanism most likely to be successful in the heat of trial.
    I have indeed seen the subject of the prior (allegedly) false allegation called as a character for untruthfulness witness only to have the government then open the door by testing the basis of his opinion.

  9. stewie says:

    Yep Lieber, it puts the Gov in a box if you can get that witness on the stand. Do they just leave it at someone thinks she’s untruthful, or do you poke at it, knowing it’s going to be about a prior false rape allegation?

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

    I agree MRE 608 is the best way to go.  The problem is when the defense brings in another person falsely accused by the same AV to call the AV a liar, if that is the only basis for the witness’ opinion, a military judge may not allow that person to testify, for insufficient basis.
    If the AV recanted a previous allegation, then that can be used as a false allegation, not to prove a pattern of making false allegations, but for character for untruthfulness.  Was a transcript of the summary court-martial submitted as evidence?  I agree an acquittal in and of itself isn’t enough, and I agree with stewie the reason for the acquittal is needed.  Not sure why defense counsel went down the MRE 412/MRE 404 road to begin with.

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

    A related motive to make a false allegation, either intentional or “honest mistake:”  victimhood as a status symbol.  It’s more than just getting certain benefits, it’s a social status thing.  This is an enlightening read:

  12. Lone Bear says:

    so is it necessary to file 412 notice for a prior allegation of sex assault? Without notice you can get it in front of members in cross even if the judge shuts it down. True or not, most members don’t believe lightning strikes the same person twice.

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

    Lone Bear, it’s not necessary to file MRE 412 for a false allegation of sexual assault.  Which is what makes this case kind of perplexing, why litigate an issue you don’t have to?

  14. Neal says:

    IMHO, whether a 412 notice would be required depends on your theory of falseness.  If the prior allegation is false because the sex was consensual then it is evidence of other sexual activity and a 412 notice should be required.  If the prior allegation is false because there was never any sex to begin with then it is not evidence of other sexual activity and no 412 notice should be required.  However, I have no case law to support this opinion.