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."

Right to Confront

United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) deals with the right to confront. The sodomy, extortion, and indecent assault charges stemmed from an allegedly nonconsensual sexual encounter Smith had with Cadet SR while both were stationed at the Academy in October 2005. SR accused Smith of extorting sexual favors from her by threatening to disclose a secret that SR had revealed to him. The government presented evidence that SR believed the secret, if revealed, could have jeopardized SR's Coast Guard career and may have violated the UCMJ. SR's testimony was the only evidence presented against Smith on these charges. The defense theory was that SR had engaged in consensual sexual activity with Smith and, sexual activity between cadets being prohibited, was lying about it in order to protect her career. In support of this theory, the defense sought the court's permission to cross-examine SR at trial about a prior false claim of sexual assault. Smith testified at a pre-trial motion hearing that during the summer of 2005, while stationed with SR at Norfolk, Virginia, Smith heard rumors from some enlisted personnel that SR had engaged in consensual sexual activity with an enlisted man (which, if true, would violate Coast Guard regulations and the UCMJ). When Smith asked SR about the rumors, SR told him that the sexual activity had occurred, but that it was nonconsensual. Smith then told the enlisted personnel who were spreading the rumors that the sexual activity was nonconsensual. Smith further testified that SR later confessed that she had lied to him, and that she had, in fact, engaged in consensual sexual activity with the enlisted man. Smith's testimony was the only evidence advanced by the defense in support of Smith's version of events. The defense sought to admit this evidence of SR's prior sexual behavior under M.R.E. 412(b)(1)(C) as "evidence the exclusion of which would violate the constitutional rights of the accused." The military judge sustained the government's objection to the evidence, but permitted the defense to inform the members that

SR's secret "was information that if revealed could have an adverse impact on her Coast Guard career, including possibly disciplinary action under the UCMJ."

The CAAF ruled that Smith was not denied his right to confront SR. 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 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."

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