Yesterday CAAF granted review of an oddly-worded issue involving Mil. R. Evid. 412 – the military’s rape shield rule:
No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN LIMITING THE CROSS-EXAMINATION OF THE COMPLAINING WITNESS UNDER MILITARY RULE OF EVIDENCE 412 ON AN ISSUE SHOWING THAT APPELLANT’S SUBJECTIVE MISTAKE OF FACT AS TO THE COMPLAINING WITNESS’S AGE WAS OBJECTIVELY REASONABLE.
Briefs will be filed under Rule 25.
The CCA’s opinion is available here and reveals that the appellant was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. The appellant’s defense was that he mistakenly believed the boy was 16. To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts soliciting sexual encounters in which he claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:
the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.
Slip op. at 5. The CCA concluded that:
We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.
Slip op. at 6.
Considering this, it’s strange that the granted issue challenges both the CCA’s limitation of cross-examination (when it was the judge) and the invocation of Mil. R. Evid. 412 (when the real issue seems to be relevance).
Another 412 issue on CAAF’s docket for next term is the constitutionally-required exception to the rule, which will be considered in United States v. Robinson, No. 17-0231/AR (grant discussed here).