Sunday, April 4, 2010

The Webster Smith Case. Only In America.


ERDMANN, Judge, with whom EFFRON, Chief Judge, joins
(concurring in part and dissenting in part):

(While I concur with the majority opinion as to the
jurisdictional issue raised by the Government, I respectfully
dissent from the majority’s conclusion as to the granted issue.)

In a case where credibility of the complainant was fundamental,
the military judge prevented the defense from presenting to the
panel an explanation of the circumstances that would have
provided a motive for the complainant to make a false allegation
of rape.

Cadet Webster Smith was initially charged with twenty-two
specifications, the majority of which related to his sexual
relationships with female cadets at the United States Coast
Guard Academy. Eleven of those charges were dismissed before
trial. At a general court-martial composed of members, Smith
was found not guilty of six of the remaining charges. Contrary
to his pleas, the members found him guilty of absence without
leave, attempted failure to obey a lawful order, sodomy,
extortion, and indecent assault. The sodomy, extortion, and
indecent assault charges arose out of allegations made by SR, a
female cadet.
In this appeal, Smith asserts that the military judge erred
by preventing him from fully cross-examining SR as to her motive
and credibility in violation of his Sixth Amendment right to
confrontation and the “constitutionally required” exception to
Military Rule of Evidence (M.R.E.) 412. M.R.E. 412(b)(1)(C).
At trial the defense filed a motion pursuant to M.R.E. 412
requesting permission to cross-examine SR about her alleged
statements to Smith concerning a prior sexual encounter she had
with an enlisted servicemember. The factual basis for the
motion was summarized by the military judge in his findings of
During the summer training program at the start
of their first class year, Cadet Smith and [SR] were
both assigned to patrol boats that moored at Station
Little Creek. Both lived in barracks rooms at the
Station. In May 2005, Cadet Smith approached [SR] to
inform her that he was hearing rumors from the
enlisted personnel assigned to the Station that she
had a sexual encounter with an enlisted member
assigned to the Station. [SR] told him that this was
true, but that it was not a consensual encounter.
Cadet Smith then informed the enlisted personnel who
were spreading the rumors that the conduct was not
On or about 19 October 2005, Cadet Smith again
approached [SR]. He told her that he had remained in
contact with some of the enlisted personnel assigned
to Station Little Creek and that the rumors
surrounding her sexual encounter with the enlisted man
had continued. This time she told him that the
incident with the enlisted man had been a consensual
encounter and that the scope of the encounter had been
greater than she had previously described.
At the Article 32 hearing, [SR] merely stated
that she had confided a secret to Cadet Smith. In her
15 February 2006 statement, she merely stated that a
situation occurred which led to rumors. On both
occasions, she went on to state that on October 19th,
she was concerned enough that Cadet Smith would expose
this secret that she agreed to pose for a picture with
him in which both of them were nude, and later that
night allowed him to perform cunnilingus on her then
she performed fellatio on him.
In the defense motion, Smith argued that the evidence was
constitutionally required because “[t]he fact that the alleged
victim lied to Cadet Smith about her sexual activity and has
misled CGIS about that activity tends to show the alleged victim
as untruthful about her sexual conduct generally and
specifically has motive to lie about the specific sexual rumors
underlying the charge -- the very issue before the trier of
The Government opposed the admission of the evidence
arguing that the substance of SR’s secret was not relevant,
material, or vital to Smith’s defense. In denying the motion
the military judge concluded that: while the evidence was
relevant, the members did not need to know the specifics, but
could be provided with a non-specific summary;1 although the
evidence could show that SR had a propensity to bring false
accusations against men with whom she had consensual sexual
encounters, the evidence was not strong since the source of the
allegation, Smith, was biased; there was a significant
(Footnote: 1 The military judge found that “the members could be informed
that the secret was information that if revealed could have an
adverse impact on [SR’s] Coast Guard career, including possibly
disciplinary action under the UCMJ.”)
difference between SR making a false allegation to Smith and
making a false allegation to law enforcement authorities; and
the probative value of the evidence was outweighed by the danger
of unfair prejudice.
The United States Coast Guard Court of Criminal Appeals
affirmed the findings and sentence.
We review a military
judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). In doing so, we review findings of fact under the clearly
erroneous standard and conclusions of law under the de novo

The evidence at issue was proffered to attack SR’s
credibility by establishing that she had earlier made a false
allegation of a nonconsensual sexual encounter to protect her
Coast Guard career. Before addressing the M.R.E. 412 issue, it
is worth noting that there is some question as to whether M.R.E.
412 even applies to this type of evidence. The Drafters’
Analysis to M.R.E. 412 states “[e]vidence of past false
complaints of sexual offenses by an alleged victim of a sexual
offense is not within the scope of this Rule and is not
objectionable when otherwise admissible.”
However, given the
posture of this case on appeal, and assuming that M.R.E. 412
does apply, the evidence is clearly admissible under the M.R.E.
412 analysis.
1. Objections Under M.R.E. 412
“[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby ‘to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability
of the witness.’” Delaware v. Van Arsdall.
“[E]xposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected right
of cross-examination.” “The question is whether
‘[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had [defense
counsel] been permitted to pursue his proposed line of crossexamination.’”
(United States v. Collier).
See also Fed. R. Evid. 412 advisory committee’s note on
proposed 1994 amendment (“Evidence offered to prove allegedly
false prior claims by the victim is not barred by Rule 412.
However, the evidence is subject to the requirements of Rule
(quoting Van Arsdall, 475
U.S. at 680).
“M.R.E. 412 was intended to protect victims of sexual
offenses from the degrading and embarrassing disclosure of
intimate details of their private lives while preserving the
constitutional rights of the accused to present a defense.”
United States v. Banker, 60 M.J. 216, 219 (C.A.A.F 2004). There
are, however, three exceptions to the exclusionary provisions of
M.R.E. 412. Smith relied on the third exception that requires
the admission of evidence “the exclusion of which would violate
the constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
“This exception addresses an accused’s Sixth Amendment right of
confrontation and Fifth Amendment right to a fair trial.”
Banker, 60 M.J. at 221 (citations omitted) (emphasis added).
Banker requires that “where evidence is offered pursuant to this
exception, it is important for defense counsel to detail an
accused’s theory of relevance and constitutional necessity.” 60
M.J. at 221. Smith’s counsel did just that in this case.

(2. Relevance and Materiality)
In order to properly determine whether evidence is
admissible under the constitutionally required exception the
military judge must evaluate whether the proffered evidence is
relevant, material, and favorable to the defense. Id. at 222.
“[T]he relevancy portion of this test is the same as that
employed for the other two exceptions of the rule,” which is
that “[e]vidence is relevant if it has ‘any tendency to make the
existence of any fact . . . more probable or less probable than
it would be without the evidence.’ M.R.E. 401.” Id. at 222.
The proffered evidence could have impacted SR’s credibility by
allowing the defense to provide a commonsense explanation for SR
to give false testimony. That is, when SR learned of the
investigation of Smith for alleged sexual offenses, she became
concerned that the investigation would produce allegations that
she had engaged in prohibited sexual activity3 with Smith in
their dormitory at the Coast Guard Academy, thereby jeopardizing
her own career. Thus, she fabricated the charges against Smith
to protect her career, as she had in the past for the same
reason. The military judge found that the evidence would be
relevant and I agree.
Having found the evidence relevant, the next step for the
military judge was to determine whether the evidence was
“material and favorable to the accused’s defense, and thus
whether it is ‘necessary’.”
3 Pursuant to Regulations for the Code of Cadets 4-5-05.a.3,
sexual conduct is prohibited on Coast Guard Academy
installations even if it is between consenting cadets. Cadets
found guilty of consensual sexual misconduct can be disenrolled.

In determining whether evidence is material, the
military judge looks at “the importance of the issue
for which the evidence was offered in relation to the
other issues in this case; the extent to which this
issue is in dispute; and the nature of the other
evidence in the case pertaining to this issue.”

There can be no dispute that testing the credibility of a
witness through cross-examination is crucial to the right of
A more particular attack on the witness’ credibility
is effected by means of cross-examination directed
toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate
directly to issues or personalities in the case at
hand. The partiality of a witness is subject to
exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of
his testimony.” 3A J. Wigmore, Evidence § 940, p. 775
(Chadbourn rev. 1970). We have recognized that the
exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination,
this was a “he said -- she said” case and for the charges at
issue in this appeal,4 the critical question for the members was
the credibility of the sole prosecution witness. Evidence of a
motive to fabricate and that SR had alleged that an earlier
consensual sexual encounter was nonconsensual in an attempt to
protect her career bears directly on SR’s credibility as to the
allegations she made against Smith. It may have shown that SR
had a propensity to lie about consensual sexual encounters when
her career was on the line. The materiality of this evidence is
not the “lurid nuances of the victim’s sexual past” as noted by
the majority, but rather the allegation that SR had previously
lied about a sexual encounter under similar circumstances.
3. Balancing)
Once the military judge has determined that the proffered
evidence is relevant and material, the military judge must
undertake the M.R.E. 412 balancing test to determine if the
evidence is favorable to the accused’s defense.5 Banker, 60 M.J.
at 222. The term favorable is synonymous with vital. Id.
“[W]hen balancing the probative value of the evidence against
the danger of unfair prejudice under M.R.E. 412, the military
judge must consider . . . factors such as confusion of the
issues, misleading the members, undue delay, waste of time,
5 Commentators have noted that the “constitutionally required”
exception may be unnecessary since once it is established that
the evidence is constitutionally required, there can be no
further limitation on its admission. See 1 Stephen A. Saltzburg
et al., Military Rules of Evidence Manual § 412.02[4], at 4-194
(6th ed. 2006) (“Any limitation on a constitutional right would
be disregarded whether or not such a Rule existed.”);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 4:81, at 306 (3d ed. 2007) (“The exception is arguably
unnecessary because Fed. R. Evid. 412 is subordinate to the
Constitution anyway, but perhaps including it diminishes the
sense of conflict between the two legal standards.”).
United States v. Smith, No. 08-0719/CG
1 0
needless presentation of cumulative evidence, [and] also
prejudice to the victim’s legitimate privacy interests.” Id. at
223. The M.R.E. 412 balancing test weighs in Smith’s favor.
Under the circumstances of this case, any risk of confusion of
the issues, misleading the members, wasting time, or presenting
cumulative evidence was minimal and is outweighed by the high
probative value of this evidence.
In Dorsey the court found evidence favorable when it
“undermined the credibility of the sole prosecution witness who
directly testified to appellant’s guilt of the charged offense.”
Dorsey, 16 M.J. at 7. In a similar fashion, admission of a
prior false allegation of a nonconsensual sexual encounter could
have undermined the credibility of SR, the only witness who
testified against Smith on the extortion, sodomy, and indecent
assault charges.
While the evidence of SR’s earlier allegation of a false
nonconsensual sexual encounter and her subsequent admission that
the encounter was consensual would have impacted her privacy
interests, withholding this constitutionally required evidence
from the panel deprived Smith of his best opportunity to provide
a motive for SR’s allegations and to challenge her credibility.
The fact that the military judge allowed the panel to hear that
SR had a secret that, if revealed could have an adverse impact
on her Coast Guard career, including possibly disciplinary
1 1
action under the UCMJ, was simply not sufficient. With this
limited information about SR’s secret, the members were left to
speculate whether the secret was a minor disciplinary infraction
or a more serious charge, but they had no idea that the
proffered evidence directly implicated SR’s motive and
In Collier this court found the military judge erred in
limiting cross-examination of the complaining witness for
possible bias. Collier, 67 M.J. at 349. There, the defendant
attempted to establish bias by presenting evidence of the
existence of a romantic relationship that ended badly between
the accused and the complaining witness. Id. at 351. The
military judge only allowed cross-examination as to the “breakup
of a friendship.” Id. at 351-52. This court found that there
was a qualitative difference between the two situations and if
the members had been shown evidence of the romantic relationship
they might have had a significantly different impression of the
accusing witness’ credibility. Id. at 352, 353. Similarly,
there is a qualitative difference between an undisclosed
6 Trial counsel illustrated the range of incidents that the
members could have speculated on when, at one point during his
argument on the motion, he stated that while the existence of
the secret was extremely relevant, the content of the secret was
not. Trial counsel argued, “[t]he extortion charge is that
there was a secret. It doesn’t matter if that secret was
whether she liked Smarties. It doesn’t matter if she had
committed some other felony . . . .”
1 2
situation that “could have had an adverse impact on [SR’s] Coast
Guard career” and an allegation that SR had previously made a
false allegation of a nonconsensual sexual encounter to protect
her career.
While the military judge found that the evidence was not
strong because it came from Smith, who had an obvious bias, it
is well established that “[t]he weight and credibility of the .
. . witness are matters for the members alone to decide.”
United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (citing
United States v. Bins, 43 M.J. 79, 85 (C.A.A.F. 1995)). The
court in Banker noted that the role of the military judge is to
assure that the evidence meets the usual evidentiary standards.
Banker, 60 M.J. at 224 (citing United States v. Platero, 72 F.3d
806, 812 (10th Cir. 1995)). The court in Platero went on to
say, “when the Judge decides whether or not a defense is true or
false and decides that on the basis of the credibility of the
witnesses, the Judge is doing what the jury is supposed to do in
a serious criminal case covered by the Sixth Amendment.”
Platero, 72 F.3d at 812.
Smith had a commonsense explanation for SR’s claim that the
sexual activity was nonconsensual and the military judge’s
ruling prevented the members from considering this theory. The
alleged false accusation was close in time to the allegation
made against Smith, both allegations involved military members
1 3
and both situations presented a motive for SR to lie about the
consensual nature of her sexual activities to protect her
career. Putting aside the fact that M.R.E. 412 may not even
apply to this type of evidence, I would conclude that the
evidence should have been admitted under M.R.E. 412. I would
further find that the error was not harmless beyond a reasonable
doubt as it essentially deprived Smith of his best defense and
“the excluded evidence may have tipped the credibility balance
in [Smith’s] favor.” Moss, 63 M.J. at 239.
I would reverse the decision of the United States Coast
Guard Court of Criminal Appeals and set aside the findings and
sentence for Additional Charge I, Specification 1 of Additional
Charge II, and Additional Charge III, and remand the case for
further proceedings, if any.

Insted, we got this.

STUCKY, J., delivered the judgment of the Court, in which RYAN,
J., joined. BAKER, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.

We granted
review to decide whether Appellant was denied his right to
confront his accuser on those three specifications. We hold
that Appellant was not denied his right to confront his accuser,
and affirm.

1 comment:

ichbinalj said...

(A History of American Law, L. M. Friedman, 3rd Ed., 2005, Simon & Schuster)
An amazing piece of work that is not just a history of the American legal system, but a history of America as seen through its laws. It manages to cover everything from the development of equity law to the explosion of torts to the history of commerce and contracts, all without being pedantic or overly general.

Friedman relies on odd laws, great cases, and telling quotes to explain his story. In discussing the battle between civil and common law in California, he quotes an early California legislature which waxed poetic on the wonders of the caveat emptor rule (it apparently caused commerce to "whiten every sea, woo every breeze"). He discusses an early law in Virginia that classified slaves as real estate instead of chattel, highlighting their novel nature in English legal history. He discusses the 1878 case of Hall v. DeCuir, where the Supreme Court overturned a Louisiana state law forbidding racial discrimination on common carriers as an unconstitutional burden on interstate commerce, showing how the Court not only blocked federal anti-discrimination laws, it blocked any state attempts to staunch racial animosity, the Fourteenth Amendment notwithstanding.

Friedman also wades into such complicated debates as the one surrounding the "Field Code," first passed in New York in 1848, which began the "codification" of American law yet could only get as far as clarifying civil procedure. Codes on penal and public law would sometimes have to wait a century for passage, at least outside the so-called Wild West (which he shows was overrun by more lawyers per capita than even the developed East. In this story, the West was filled with litigators, not cowboys.)

I thought that this book might simply recapitulate some of Friedman's work in "Crime and Punishment in American History," but the sections on criminal law are brief, and usually deal with oddities and legal development. Overall, the books compliment each other nicely. Also, despite its broad title, the book focuses overwhelmingly on the nineteenth century (the colonial period is too sketchy and the 20th century is big enough that he deals with it in-depth in another book). Still, this is a great work that gave me a new appreciation for the world of the law