With a published opinion in United States v. Leonhardt, __ M.J. __, No. 39014 (A.F. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because the military judge applied an improper burden of proof on the defense for the introduction of evidence bearing on the alleged victim’s credibility.

The charges again Second Lieutenant (O-1) Leonhardt arose out of a sexual encounter with a fellow cadet at the Air Force Academy. Leonhardt’s defense wanted to introduce evidence that after the alleged assault, Leonhardt and the alleged victim:

had consensual sex . . . at least twice in his room . . . within approximately a week and a half of the alleged assaults, that he told three other lieutenants about these encounters, and that one of these individuals also saw [the alleged victim] in Appellant’s room during this time frame.

Slip op. at 4. Leonhardt testified to these facts in a pretrial hearing. The alleged victim also testified in the hearing, but she denied any subsequent sexual contact.

The defense sought to introduce this evidence to attack the alleged victim’s credibility, arguing:

[B]ecause she would engage in consensual sex after the fact, you have to question whether or not the allegation she’s making is even a truthful allegation. So, that’s the reason we’re offering it.

Slip op. at 4-5 (quoting record).

But the military judge applied Mil. R. Evid. 412 to prohibit the defense from cross-examining the alleged victim at trial about subsequent contact, ruling that the defense failed to prove that any subsequent contact occurred and failed to prove that any subsequent contact was admissible:

The Defense in this case has the burden to demonstrate the profferred evidence to at least a preponderance of the evidence and to provide a basis for admissibility.

They have failed on both counts. The alleged victim testified credibly that there was no post-event consensual sexual behavior. Additionally, the Defense did not posit a viable reason to admit the evidence. The proffered evidence has no relevance to consent or mistake of fact to consent on the night in question (like arguably pre-assault consensual behavior). The proffered evidence does not offer insight into motive on the part of the alleged victim. Additionally, the proffered evidence is merely an assertion by the accused; completely denied by the alleged victim. There was no corroborative or independent evidence offered to assist this fact finder.

Slip op. at 5 (quoting ruling) (emphases omitted).

Leonhardt did not testify at trial and the defense did not otherwise elicit evidence of sexual contact between him and the alleged victim after the alleged assault. A panel of members convicted him.

The CCA reverses, finding that the military judge’s limitation of cross-examination was error for two reasons.

First, the CCA finds that the military judge made an improper credibility determination:

In [United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010)], the United States Court of Appeals for the Armed Forces held the military judge abused his discretion when he weighed the credibility of defense witnesses in performing a relevancy analysis under Mil. R. Evid. 412. Roberts, 69 M.J. at 27. “‘In applying [Mil. R. Evid.] 412, the judge is not asked to determine if the proffered evidence is true . . . . Rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under [Mil. R. Evid.] 412.’” Id. (ellipsis in original) (quoting United States v. Banker, 60 M.J. 216, 224 (C.A.A.F. 2004)). Similarly, in the instant case it is apparent the military judge’s ruling relied in part on a determination that Appellant’s motion testimony was not sufficiently credible. This was error. “[I]t is for the members to weigh the evidence and determine its veracity.” Banker, 60 M.J. at 224; see also United States v. Zak, 65 M.J. 786, 793 (A. Ct. Crim. App. 2007) (“[T]he military judge’s ruling on the veracity of the evidence [proffered under Mil, R. Evid. 412] usurped the role of the panel members, was clear error, and, as a result, an abuse of discretion.”) (Citation omitted.)

Slip op. at 7 (emphasis added). Put differently, the defense need not prove that subsequent sexual contact actually occurred in order to be allowed to cross-examine the alleged victim about it.

Second, the CCA finds that the military judge’s conclusion that the proffered evidence had no relevance was error:

Although inartfully stated, the Defense motion and argument taken together indicate the evidence was offered to show the charged sexual encounters were in fact consensual. The military judge found the Defense failed to demonstrate “a basis for admissibility” and asserted, inter alia: “The proffered evidence has no relevance to consent . . . on the night in question . . . .” We cannot agree, and we find this conclusion to be an abuse of discretion.

Relevance is a “low threshold.” Roberts, 69 M.J. at 27. Evidence is relevant if it has any tendency to make the existence of a fact more probable or less probable than it would be without the evidence. Mil. R. Evid. 401(a). In general, willingness to engage in consensual sexual activity has some tendency to indicate that recent prior sexual encounters between two individuals were also consensual. See United States v. Sousa, 72 M.J. 643, 648 (A.F. Ct. Crim. App. 2013) (“Evidence that [the victim] engaged in consensual sexual activity with the appellant after the date she alleged she was forcibly sodomized was constitutionally required to be admitted on the issue of consent . . . .”); United States v. Leak, 58 M.J. 869, 876–77 (A. Ct. Crim. App. 2003), rev’d on other grounds, 61 M.J. 234 (C.A.A.F. 2004); United States v. Parker, 54 M.J. 700, 708 (A. Ct. Crim. App. 2001). We find no reason to conclude otherwise in Appellant’s case.

Slip. op at 8 (emphasis added). Put differently, the possibility that subsequent sexual contact occurred was relevant because it could suggest that the alleged assault was actually a consensual encounter.

The CCA concludes:

The Government notes that Ms. MG would presumably have denied the proffered post-offense consensual sexual encounters if she had been cross-examined about them. However, it is possible the members might not have believed her, or might have harbored greater doubts about her testimony and credibility more generally. In addition, if the military judge had not excluded the proffered evidence, Appellant might have testified in findings and the members might have found him credible enough to raise reasonable doubts about Ms. MG’s testimony.

Slip op. at 10.

The CCA authorizes a rehearing.

32 Responses to “The Air Force CCA explains that subsequent consensual sexual contact – even if unproven – could suggest that an alleged assault was actually a consensual encounter”

  1. Bionic Barry Dylan says:

    The MJ used a credibility determination to find evidence irrelevant?  Aside from the fact that any evidence of consent between an alleged victim and an accused is, in my opinion, always relevant, it is troublesome that testimony would be excluded as irrelevant based on a credibility determination.

  2. K fischer says:

     My favorite part of this MJs ruling is:

    Additionally, the proffered evidence is merely an assertion by the accused; completely denied by the alleged victim. There was no corroborative or independent evidence offered to assist this fact finder.

     
    So, if a mere assertion by one party without any corroboration or independent evidence to support it can’t get you to a proponderance, then we should never have a conviction under cases with a mere assertion and no corroboration.  Right?

  3. Scott says:

    I believe there was another similar case involving a 412 hearing where the accused testified about a sensual massage by the alleged victim but she denied it. The judge excluded it based on credibility and it was ultimately reversed. I think it started with a “Z” – it’s cited in the S&S annotated MRE book, which I don’t have handy at the moment. 
     
    The point about the relevance of a line of cross examination, even if denied by the witness is also important. I’ve heard several Judges say that a cross examination question serves no purpose if it is denied by the witness because it results in no substantive evidence, but that is clearly wrong because the fact finder needs to make a determination as to credibility and the denial, even if not substantive evidence, is part of the basis for that credibility determination. 

  4. Charlie Gittins says:

    I am surprised that Judge Spath was the presiding military judge.  He is normally pretty good with the law.  Not so much this time.   
    “Additionally, the proffered evidence is merely an assertion by the accused; completely denied by the alleged victim. There was no corroborative or independent evidence offered to assist this fact finder.”
    The above quote completely blew my mind.  The Judge must have missed the day they taught law in law school.

  5. Brian Bouffard says:

    I am surprised that Judge Spath was the presiding military judge.  He is normally pretty good with the law.  Not so much this time.   “Additionally, the proffered evidence is merely an assertion by the accused; completely denied by the alleged victim. There was no corroborative or independent evidence offered to assist this fact finder.”The above quote completely blew my mind.  The Judge must have missed the day they taught law in law school.

     
    I’m completely poleaxed to hear this was from Judge Spath.  This kind of reasoning, if I’m understanding it correctly, is contrary to his reputation and to my very positive experience with him.  I’d love to know what he was thinking here.

  6. k fischer says:

    I don’t know the MJ, but maybe the accused should have gone Judge Alone because the MJ was telegraphing what the findings would be with the facts of this case, i.e., “Hey!  I believe that an uncorroborated testimony that is refuted by the other side does not rise to the level of proponderance, let alone beyond a reasonable doubt.”

  7. Concerned Defender says:

    Where do some of the MJs and lawyers get their law degrees – cracker jack boxes?!?!  
    The MJ’s logic/reasoning is either asinine or biased because no serious person would make such a determination since probably most witness testimony is precisely what he dis-allowed!!!  Or maybe he was inviting or telegraphing a motion by defense to dismiss the case?!  
    At what point do MJs have their credentials to sit on the bench challenged I wonder?  Does 1 or more bone headed rulings like this initiate such an inquiry? 
     

  8. k fischer says:

    Two other sections are of particular interest:
     

    The Government argues that because Appellant’s motion testimony “lacked corroboration” and was “wholly contested” by Ms. MG, it therefore lacked any probative value as to the charged offenses.

     
    Isn’t that the way the Government always looks at testimony from the Accused?  I once had an SVP object during my opening stating that there were no facts supporting my opening statement.  I looked at the MJ and said, “I believe my client’s testimony will support those facts.”
    And:
     

    Relevance depends on the substance of the evidence, not its relative strength in relation to other evidence in the case. It may be that in extreme cases the content of proffered evidence on a matter of “consequence in determining the action” is so patently improbable that it lacks relevance—for example, if Appellant had claimed the subsequent consensual sexual encounters took place on the moon. But that is not this case; there is nothing inherently incredible about two cadets having consensual sex in a dorm room. 

     
    I’m glad to see that if my “gang rape by the Accused and his Martian friends on their spacecraft” case hypo ever gets referred, DC will be able to use this dicta to support a 917 motion, i.e. the complaining witness’s testimony is so patently improbable that it lacks relevance and therefore should be admissible as evidence against the Accused.

  9. DCGoneGalt says:

    Depending on the trial judge, not surprising.  So, to recap:
     
    Uncorrorborated allegation = Brief members as 98% chance of being true.  Send case to trial, admit into evidence.
     
    Uncorroborated denial of allegation = Brief members of 98% chance of being false.  Send case to trial, do not admit into evidence.  Why?  ‘Cuz muh victim.

  10. Concerned Defender says:

    Apparently only the MJ is a lie detector!  

  11. Law Student says:

    I vote we all chip in on a GoFundMe page to provide an Evidence CLE for Air Force attorneys. 

  12. Kettle Black says:

    Law Student –
    You realize it was the Air Force court that overturned the conviction, right?  I’m fairly certain reading comprehension was an important element of law school.  It would appear that civility no longer is…

  13. J.M. says:

    How much civility was shown LT Leonhardt during his 5 months in prison? I find the lack of civility made by Law Student to be a harmless error.

  14. Annoyed says:

    I’m very surprised this was from Judge Spath, he’s very well respected. 

  15. AFADCAO says:

    With all of your lambasting of the MJ, I think you are all missing the import of this opinion.  As I read the opinion, the CCA is essentially saying there is no burden of proof on a 412 motion.  Normally, unless we are dealing with a motion to suppress or speedy trial motion, the moving party has the burden of establishing any disputed issues of fact.  The CCA here says for 412 there is no burden – if the moving party asserts something is true – the MJ only needs to find if it’s relevant to one of the three exceptions to the rule.  That, in my experience, is a drastic shift that DC ought to start jumping all over if they weren’t already.

  16. Zachary D Spilman says:

    Not so fast, AFADCAO. K fischer cites an important passage in his comment above:

    Relevance depends on the substance of the evidence, not its relative strength in relation to other evidence in the case. It may be that in extreme cases the content of proffered evidence on a matter of “consequence in determining the action” is so patently improbable that it lacks relevance—for example, if Appellant had claimed the subsequent consensual sexual encounters took place on the moon. But that is not this case; there is nothing inherently incredible about two cadets having consensual sex in a dorm room. 

    Slip op. at 9.

    The relevance here was – as I wrote above – in the possibility that subsequent sexual contact occurred, because it could suggest that the alleged assault was actually a consensual encounter. Relevance, of course, being a low bar. 

    The defense did more than merely assert that something was true. It presented evidence (that the military judge decided not to believe). Had the defense litigated this motion without presenting any evidence of subsequent contact, I’d expect the CCA’s decision would have gone the other way.

  17. Bionic Barry Dylan says:

    I concede we don’t have all the facts due to this being an appellate record, but if I were LT Leonhardt, I’d seriously consider taking the huge chunk of back pay I’m about to receive and hire Col. David Riggins’ attorney to sue the complaining witness in this case just as Riggins did.  Many of the facts, including the timing of the allegation and the fact that she wrote him a character letter, lead me to believe she fabricated the consensual sexual encounter into sexual assault to serve her own personal ends, whatever those ends might have been.  Despite this vindication, I can’t imagine Leonhardt’s career and earning potential will ever completely recover.  Not to mention the damage to his reputation, which is likely permanent, and the time he spent in confinement.

  18. Lieber says:

    BBD, since a rehearing is authorized, he’s not entitled to back pay. Unless he is acquitted at a rehearing. 

  19. AFADCAO says:

    Mr. Spilman,
    While I’m sure that is way to argue the court’s ruling in Leonhardt, it’s certainly not how I would argue it if I were representing a client.  I would use this quote:
    [The Government’s] reliance [on RCM 905(c)(1)] is misplaced. R.C.M. 905(c)(1) pro-vides: “Unless otherwise provided in this Manual [for Courts-Martial], the bur-den of proof on any factual issue the resolution of which is necessary to decide a motion shall be by a preponderance of the evidence.” (Emphasis added.) The flaw in the Government’s reasoning, apparent from Roberts, is that a military judge ruling on evidence proffered under Mil. R. Evid. 412 is not required to resolve a factual issue. 69 M.J. at 27. Again, the military judge must decide whether the proffered evidence is relevant and otherwise admissible, not whether it is true.
     
     
     
     
     
     
     
     

  20. Zachary D Spilman says:

    I see your point, AFADCAO, and I don’t think it crazy, but I do think you’re reading too much into the opinion.

    The CCA held that:

    [T]he Defense is not required to convince the military judge that its evidence is true, only that it is relevant. Relevance depends on the substance of the evidence, not its relative strength in relation to other evidence in the case. . . 

    Slip op. at 9. I think that’s a burden of proof.

  21. k fischer says:

    Sounds to me like you to are saying about the same thing.  AFADCAO….EIEIO…..is saying that there is no burden and the Defense merely has to show relevance, for which the burden is that it can’t be impossible.  While Zack is arguing that the burden of showing relevance and that it is not impossible is actually, while miniscule, a burden  
     
    But, I’m about as sharp as a marble, so I could be missing something.

  22. joseph says:

    As I tried this case with now MAJ Boden as my co-counsel, we are very very happy at the outcome the Zimmerman Law firm was able to obtain in this matter.

  23. Annoyed says:

    No one is lambasting Judge Spath, he’s very well respected.  We’re just surprised since he’s usually spot on when there are plenty of USAF MJ’s that aren’t and routinely have their decisions set aside by the AFCCA or CAAF.  He’s not normally in that company.

  24. k fischer says:

    I have to admit, I always thought that the Defense has the burden of proof by a preponderance in factual issues for 412 evidence to be admissible.  I mean they have the burden of bringing the motion, so I just assumed they had the burden of proof under R.C.M. 905.
     
    So, lets say MJ Spath believed that the evidence was 50/50.  She credibly testified that there was no subsequent sexual contact and he testified there was, yet there was no evidence supporting his contention, which he would have the burden of showing if the Defense had the burden of proof by a preponderance. I can see why he might make such a ruling.  It’s his word against hers and nothing supports his word.   To me, the body of law addressing M.R.E. 412 is quite confusing.  Although, this ruling is quite good for the defense.

  25. k fischer says:

    And, not sure Defense counsel should be dancing a jig just yet.  How does this apply to 413 evidence?  Does the Government merely have to show relevance and it comes in?
     
    But, then again, how would this analysis apply to a previous false allegation of sexual assault where the previous falsely accused intercourse participant is available to testify?  If we only take into account the low threshold of relevance when using the constitutionally required exception, then does the defense have the burden of proving that the allegation was false?

  26. Lieber says:

    Kyle, it doesn’t apply to 413 at all.  (There is a lot of confusion about this in the field (see this case for an exemplar), but it’s really been settled law for a bit.). 412 is a rule of relevance, full-stop.  413-414 are exceptions to the prohibition against propensity evidence, not rules of relevance.  Propensity evidence is generally prohibited not because it is not relevant but because it is generally more prejudicial then probative.
    A trial court’s 412 analysis is very simple, a. Is this evidence covered by 412? B. If so, does it fall under an exception making it relevant?
    Once the evidence is deemed relevant under 412 (and 401 implicitly), then the other party could raise the usual objections to foundation, authenticity, hearsay…and the standard tests for those apply.
    But, yes, if the accused takes the stand and says “yeah, she was screwing me after that night”….and it seems implausible, the remedy for the government is cross-examination. No different than any other relevant evidence that survives evidentiary objections.
    I hope this makes sense.  (And apologies for any mis-precision, I’m sitting at a bar typing this, but this is the way I’ve always argued any 412 motion.)

  27. K fischer says:

    Lieber,
     
    Thanks!  I’ve never had anyone explain that to me that way.  Makes more sense. 

  28. k fischer says:

    Wait a second!!!!  Compare the holding in Leonhardt with the holding in US v. Erikson.  CAAF pretty clearly stated that under a 412 analysis, the Accused had to prove by a preponderance that the previous allegation of sexual assault against a third uncharged party was false under a 412 analysis.

  29. Zachary D Spilman says:

    Not the same, k fischer. The prior allegation in United States v. Erikson, 76 M.J. 231 (C.A.A.F. May 9, 2017) (CAAFlog case page), would only have been relevant if it was actually false.

    Also, it wasn’t really 412 evidence:

    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.

    76 M.J. at 235 n.2.

  30. Kevin Reinholz says:

    For those lambasting the MJ’s ruling, we don’t have the benefit of the ROT to parse out exactly what facts and arguments were presented. That said, having practiced a number of times in front of Judge Spath, as a defense counsel, I can say with some confidence that he’s given some of the most well-thought out, well-reasoned opinions I’ve seen from a trial judge, and I always thought he was extremely fair–not “for” the prosecution, not “for” the defense, but fair, and not afraid to make waves if he believed that was what the law required. If I ever found myself the accused facing a court-martial, I’d want him to be the military judge because I know I’d get a fair shake. That’s my level of confidence in this MJ. I even had clients try to change from trial by members to trial by MJ after seeing his courtroom demeanor.
    I’m not saying he’s right and the CCA is wrong. I’m just saying, we weren’t there, 412 is constantly evolving, and be careful about lambasting one of the most well-respected trial judges in the Air Force. No one is infallible, but even if wrong I guarantee you a Judge Spath opinion was a well-reasoned one, and better than you’d get from almost any other judge out there. He’s one of the finest officers and judges/attorneys I’ve served with, and any personal attacks on him as the MJ in this thread are baseless in addition to being in poor taste.

  31. k fischer says:

    Kevin Reinholz, 
     
    That’s why I am asking about Erikson bc it strongly appears that CAAF, while not seeing the point in conducting a 412 analysis, still conducted a 412 analysis using credibility of the false allegation.  This seems to be the same thing Judge Spath did in Leonhardt, except that he looked at whether subsequent sexual contact occurred.  So, I don’t understand why this Judge’s ruling is such a shock.  It doesn’t sound like he made that huge of a mistake.  
     
    My original comment was a statement about the state of the evidence in many sexual assault cases (allegation that is denied by the accused with no corroborating evidence) that I would argue don’t meet a BARD standard, which Judge Spath said doesn’t even meet a preponderance.

  32. Kevin Reinholz says:

    k fischer,
    Sorry for the slow response, but I didn’t think you were lambasting Judge Spath. As is often the case, I enjoyed reading your comments on this thread. I’m more of a “lurker” than a commenter on CAAFLog, but every now and then I feel compelled to open my big mouth, and hearing folks who’ve never practiced before this MJ blasting him was one of those times.