Recent C.A.A.F. Grants Involving M.R.E. 412 and Confrontation

The C.A.A.F. has recently granted review in three cases involving M.R.E. 412(b)(1)(C), which may indicate that the C.A.A.F. is reconsidering its decision in Banker. The cases, and the issues granted, are:

(i) United States v. Gaddis, CCA 20080150, No. 10-0512/AR (September 27, 2010). Issues granted:

a) Whether the Military Judge erred by denying Appellant the opportunity to present evidence that his accuser had a motive to fabricate the allegations against him to hide the accuser's sexual activity with others from the accuser's mother.

b) Whether the balancing test, as articulated in M.R.E. 412(c)(3) and United States v. Banker is Constitutional.

(ii). United States v. Ellerbrock, CCA 20070925, No. 10-0483/AR (September 24, 2010). Issues granted:

a) Whether the Military Judge erred in excluding, under M.R.E. 412, evidence of prior sexual behavior by the alleged victim where the proffered evidence was Constitutionally required.

b) Whether the balancing test, as articulated in M.R.E. 412(c)(3) and United States v. Banker is Constitutional.

(iii). United States v. Savala, CCA 200800818, No. 10-0317/NA (July 8, 2010).

Issue granted:

a) Whether the lower court erred when it held that the denial of

Appellant's right to cross-examine his accuser was harmless beyond a reasonable doubt.

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