In United States v. Molina, 68 M.J. 532 (C.G.C.C.A. 2009) the court had to determine if (i) DC was ineffective for telling his client that if he pled guilty, he would not have to register as a sex offender when in actuality he would need to register? (ii) DC was ineffective for not introducing evidence […]
United States v. Arriaga, No. 37439, 2009 WL 289806 (A.F. Ct. Crim. App. May. 07, 2010) deals with outside pressure on members. The issue before the court was did the command safety briefings addressing a series of unrelated sexual assaults unfairly influence appellant’s court-martial for sexual assault. Appellant was charged with sexual misconduct involving two […]
Your military defense lawyer should consider the following to determine consent: 1. What did the PV (purported victim) SAY to the accused before, during, or after the event? Yes (or no) Please do (or don’t) I like (don’t like) that Sounds of pleasure (or displeasure) 2. What did the PV do DURING the event? Removed […]
Consent Under Article 120: The Offense Date Matters The older discussion of “wrongful sexual contact” and paragraph 45b(13) concerns the version of Article 120 governing conduct from 1 October 2007 through 27 June 2012. It is not the current framework. The rules changed again for conduct from 28 June 2012 through 31 December 2018, and […]
United States v. Sutton , 68 M.J. 455 (C.A.A.F. 2010) the accused, while home alone with his two step-daughters, asked his 10-year-old to lift her shirt and show him her chest, offering her $20 to do so. For this misconduct, the accused was charged under Article 134. At trial, the parties and a military judge […]
Admission of Constitutionally Required Evidence 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 […]
Evidence of a Victim’s Sexual History or Predisposition In United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983) the Court of Military Appeals (CMA, now CAAF) directly dealt with the issue of when evidence of a victim’s sexual history or predisposition is required by the Constitution to be admitted. Citing Davis and Valenzuela-Bernal, the CMA […]
When Evidence is Constitutionally Required Three cases – United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), Davis v. Alaska, 415 U.S. 308, and Rock v. Arkansas, 483 U.S. 44 (1987) – form the core of the Supreme Court precedent that defines when evidence is constitutionally required. In all these cases, the Supreme Court held that […]
The Supreme Court’s rulings in United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) and Davis v. Alaska, 415 U.S. 308 (1974) provide insight into the manner in which the court will analyze the issue of the admission of evidence the exclusion of which would violate the constitutional rights of the accused. While Valenzuela-Bernal did not involve the […]