RESTRICTIONS ON CONFRONTATION IMPOSED BY LAW

In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) the issue was whether Smith was denied his right to confront the accuser. Webster Smith, a Coast Guard Academy Cadet, was convicted, contrary to his pleas, of attempting to disobey an order, going from his place of duty, sodomy, extortion, and indecent assault. The charges stemmed from an allegedly nonconsensual sexual encounter Smith had with Cadet SR while both were stationed at the Academy in October 2005.The Coast Guard Court of Criminal Appeals, 66 M.J. 556, affirmed. C.A.A.F. granted review.

The CAAF held that Smith was not denied his right to confront SR. Citing United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004), the court concluded that Smith did not meet his burden under M.R.E. 412 of establishing that his constitutional rights were violated by the exclusion of evidence of SR's prior sexual behavior. The Banker decision requires that an accused demonstrate that the evidence in question is relevant, material, and vital to his defense in order to be entitled to the M.R.E. 412(b)(1)(C) exception. The court assumed "that the exact nature of

[SR's] indiscretion – that it involved consensual sexual relations with an enlisted member – was relevant" but determined that it was "neither material nor vital to [Smith's] defense." In so concluding, the court asserted that the issue in dispute was SR's credibility. The court found that the military judge, by permitting Smith to present evidence that SR had lied about an important "secret," adequately protected Smith's confrontation rights by giving Smith an opportunity to impeach SR's credibility. b) Concurring opinion: Judge Baker concurred in the result, also citing

Banker, but concluded that the evidence sought to be introduced by Smith was irrelevant because his "theory of admission is too farfetched to pass constitutional and M.R.E. 403 muster."