Military Rule of Evidence (MRE) 412 prohibits the admission of evidence offered 1) to prove that an alleged victim of a non-consensual sex offense engaged in other sexual behavior, or 2) to prove an alleged victim’s sexual predisposition. MRE 412(b)(1) delineates the exceptions to this general rule.
Most of the “constitutionally required” cases have been decided in favor of the accused when the defense clearly articulated 1) its theory of the innocence and 2) how the proffered evidence advanced that theory. In such cases, the defense counsels were very candid as to which facts and inferences constituted the defense theory of innocence. Furthermore, defense counsel in these cases logically tied the proffered MRE 412 evidence to the theory of innocence. This not only increases the likelihood that the military judge will admit the evidence at trial, it also provides appellate courts with a crystal clear record as to why the evidence is indeed “relevant, material, and favorable,” and required to be admitted under the Constitution.