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
CAAF decided the Army case of United States v. Erikson, __ M.J. __, 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, __ M.J. __ (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.
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