CAAF grant.

Appellant was tried by general court-martial composed of members. Contrary to his pleas, Appellant was convicted of one specification of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ); one specification of attempted failure to obey a lawful order, in violation of Article 80, UCMJ; one specification of sodomy, in violation of Article 125, UCMJ; one specification of extortion, in violation of Article 127, UCMJ; and one specification of indecent assault, in violation of Article 134, UCMJ. The court sentenced Appellant to a dismissal, confinement for six months, and forfeiture of all pay and allowances.  The Convening Authority approved the sentence as adjudged.

Early in the trial, a closed Article 39(a) session was held pursuant to Military Rule of Evidence (M.R.E.) 412 to address the details of the story underlying the rumors, on which the defense proposed to cross-examine SR. * * * [REDACTED] * * * The military judge ruled that SR could be cross-examined concerning the lie in May, but that the details, as described in this paragraph, were not to be brought out.

Appellant contends that the military judge’s ruling was a “flagrant violation” of Appellant’s Sixth Amendment right of confrontation. In defense of the extortion, indecent assault, and sodomy charges, Appellant sought to convince the court members that SR was lying about her sexual encounter with  Appellant, in particular falsely contending that it was not consensual, and that she was doing so to protect herself from discipline. This argument, he asserts, would have been much more persuasive had the members known that before 19 October, SR had been lying to Appellant * * * [REDACTED] * * *, and doing so to protect herself from discipline.

I agree with the majority opinion that admission of the underlying details of SR’s secret –* * * [REDACTED] * * * – was subject to some limitation under Military Rule of Evidence (M.R.E.) 412. I would find, however, that the military judge abused his discretion when he prohibited the defense from cross-examining SR on her false statement to Appellant * * *[REDACTED] * * *, since this evidence was highly probative of the defense theory that SR engaged in a pattern of fabrication to avoid discipline. As discussed below, I believe that the military judge erred when he decided the admissibility of this evidence based on his own credibility determination of the only two witnesses involved. The military judge also erred in notconsidering important factors that favored admission of the defense evidence, including that theGovernment made first use of evidence of SR’s secret in its case-in-chief to prove that she was extorted and coerced into sexual relations with Appellant; that SR’s credibility was a key element in an otherwise uncorroborated case; and that the strength of the Government’s case turned on the members finding the presence of subtle psychological influences that overcame SR’s will. The excessive restrictions imposed on Appellant’s Sixth Amendment confrontation rights allowed SR to testify through non-factual euphemisms on critical issues related to the Government’s proof and her own credibility, and allowed the Government to create a substantially different impression of her truthfulness than what the defense had sought to show through the excluded evidence.
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I find it significant that the Government made first use of evidence of SR’s secret during its case-in-chief.
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The result was that the Government was allowed to portray SR as an innocent victim of an extortionist plot, while the defense was not allowed to portray the witness as the architect of a scheme of false allegations intended to cover up her own misconduct. I cannot agree that SR’s privacy interest in shielding her alleged false statements from inquiry was so important that it justified denying Appellant the opportunity to pierce the veneer of the Government’s conclusory assertions that were used to  convict him. I disagree with the notion that M.R.E. 412 was intended to allow the Government to prove the corpus delicti of the offenses through a witness indulging in euphemisms of doubtful legal sufficiency, particularly when they obscure facts that raise serious questions concerning her own credibility.