Transcripts For CSPAN Washington This Week 20141012

And a Princeton University talks about the challenges of keeping Nuclear Materials out of the hands of terrorist groups. As ohs, we will take your calls and you can join the conversation at facebook and twitter. Washington journal live on cspan. The Defense Department Judicial Proceedings Panel is responsible for reviewing the military judicial process for Sexual Assault. The five member panel met on friday to look a statute in the uniform code of military justice to determine whether they are clear or must be up aided. This portion is about an hour and 10 minutes. Good morning again. Late. To be a few minutes we will deal with the panel that rules and on military courtmartial proceedings. Witnesses before us. We have highly qualified experts and attorney advisors. Welcome to both of you. Lets start with you, colonel baker. Thank you. Good morning. m that uppity director director. We are here to speak about 412 and 513 and how they are litigated at hearings. To give my comments some perspective, i will note i have as a trial12 and 513 and defense counsel. I have ruled on them as a military judge. I taught classes on how to litigate these issues in court. As a member of the joint Services Committee. We recently recommended a apply thehat would attection of 412 and 513 article general powell at article 2 hearings. Theyve also recommended changes to declare a3 victims right to be reasonably heard includes a right to be. Eard through counsel with this background, i would like to offer a couple of observations in one anecdote to ae i turn the mic over colic will walk you through the procedural rules. When the procedural rules are , 412 and 513ied need toe balance determine the innocence of an accused. Second, over the course of my career, i have seen the increase in 412 mitigation and even larger increase in 513 litigation. I have observed an increase concern for perfecting the privacy rights of the ends. Whenexamining examining these rules, please take into account that Legal Counsel or special victims of predicting the victims privacy rights. They provide are victims a significantly improved right to be heard at article 32 hearings can beicle 39a sessions honest, i was surprised when a look at the agenda because i didnt see someone from the Legal Counsel or special Victims Counsel to address this issue. I will close of the senate [indiscernible] next month. [indiscernible] i will close with this anecdote. I served as a military judge in 20012014 in the early days of 513 litigation. I could remember my first 513 hearing and in camera review of a victims treatment record. The case was a hotly contested allegation. Approached this hearing thinking it would be like any other motion session i have presided over. I was wrong about that. The victims notified about the hearing, she gave a compelling argument. The defense counsel who is representing a young marine made an even more convincing argument that the records could contain material that were required and as a conclusion of the session, i asked them to produce the records under seal for me to review on camera. When the records arrived, i think this was the first time that i really had appreciated how personal and private the communications are reaching the victim and review,he course of my i discovered a piece of critical information i believed needed to be disclosed and eventually back to find it. Young activeduty marines. I became mindful of the discussion that i had as a military judge and that i needed to ask in order to make the proper decision. With that, i will turn the microphone over here and look forward to any questions you have. Members of the panel, good morning. It is a privilege to speak with you this morning about the military rules of evidence that apply in the rape shield rule. My particular emphasis is going inbe on the various ways which the system safeguards the victims privacy at pretrial hearings and during the courtmartial. I speak to you much as colonel baker does as someone who has served in almost every position in the military Justice System. I have been a prosecutor, defense counsel, law professor, policy official, daft judge advocate, and a military judge of both the trial and appellate levels. I alsos be qs on who has worked outside the military system having spent the last five years with the federal judiciary as a senior attorney and court executive. Im very confident and comfortable when i echo colonel baker and see that the military Justice System effectively provides due process for those accused of crime while safeguarding privacy interest of victims of crime, particularly concerning their previous sexual ,ehavior, their predecisions and communications the psychotherapist. Portion ofegin this our time together by an introductory note. It is important to remember when dealing with the military rules of evidence, we are dealing with the body of law that is created by executive order. At president has been authorized by congress in 10 [indiscernible] at rules of evidence. This is a linkage of the statute applying he considers the principles of law and the rules of evidence recognized in the trial of criminal cases in the United States district court. As such, youll notice a fair similarity. Have the first slide, please. Military rule of evidence 412 it laments a rape shield rule in the military justice implement a rape shield role of the military just system. It excludes as irrelevant two broad categories as evidence to prove that a victim engaged in other sexual behavior than that charged and evidence offered to prove the victims sexual predisposition. That is her dress, or lifestyle. It is important to note that this is as id mentioned the rule of evidence. It is not a privilege. The first is that the military ge may admit into evidence offered to demonstrate that another person, person other than the accused, was the source semen, in th less encounter today it when i first began practicing to the advent of sophisticated forensic examining and dna evaluations as well. The second exception is that a military judge may admit evidence of specific instances of extra behavior by the victim with the accused that is offered as a matter and chair to prove consent by the alleged victim in the case. This exception is criticized in that literature on the basis that consent at some past point does it mean consent today. It remains a part of federal and military jurisprudence. Some state have limited application of this provision to mostly statue of limitations. The Sexual Activity with accused must the within a certain period of time like one year or less in some state systems. Exception islast the greatest amount of litigation. This is the exception that would allow evidence in the words of the rule of exclusion of which would violate the Constitutional Rights of the accused. What does that mean . The rule does not define what that means for the practitioner. In my experience, evidence of this sort usually falls into one of several readily recognizable categories. For example, evidence of previous sexual behavior that establishes bias, or do this, or motor to fabricate on part of the legend victim in the case. Victim in the case. The new evidence of demonstrably false allegations of prior sexual behavior by the alleged victim or sexual behaviors or predisposition that is so distinctive and so similar to the sexual offense at issue that it explains or provides content for the instant allegations. Interestingly, many states codify these commonly encountered circumstances in their own rules of evidence for criminal cases. In military practice, this is done on an ad hoc basis by military judge upon request or the defense counsel on a given case. We will return to some issues that are encountered a little bit later in the presentation. I turned to the procedural requirement, it is helpful to look at what this movement evidence is intended to do. Out this rule aims to safeguard the against an invasion of privacy for potential embarrassment and sexual stereotyping that is associated with the Public Disclosure of intimate sexual details and infusion of sexual innuendos into the back finding process factfinding process. The rule also encourages sexual offense to institute and continue to participate in Legal Proceedings against the alleged defenders and under circumstances without which the victim might be tempted to not go forward with her allegation. If i could have the next slide, please. The procedural parliament requirement is so much to those in the federal rule of evidence. I will not read the slide, but i will point out differences in military pack. Where is the federal rules allow a 14 day period in which the typically defense counsel must submit a written motion given notice of an intent to use one of these exceptions, the military Justice System to the applies a much shorter deadline. The defense counsel need only files a motion five days before then she is supposed to 14. This is because of the slightly more rapid pace a military trial work than federal oars date or criminal trials federal courts or criminal trials. It also requires that the victim be notified by the defense counsel or the government of an attempt to use prior sexual behavior or sexual disposition evidence. It allows notification to be provided to the victims representative or counsel. When the military judge receives a motion like this indicating an intent i a party to use evidence of prior sexual behavior or a party usesn evidence of prior sexual behavior or sexual position, that judge must hold a closed hearing from the public. It is typically held in the courtroom, but without the public present. Only the necessary parties and its staff are present court staff are present. They sealed the pleadings and any evidence received during the hearing and the transcript of that hearing and prevent its review unless ordered by the court itself. Usually military judges enter an order that allows exhibit to be ,pened wide the review in court but not necessarily the convening authority or other counsel. They must under this rule specify exactly what evidence is going to be offered and which areas may be explored on direct summarized the judicial decisionmaking under military rule of evidence in this graphic. Depicts and i chose a particular respect to admit evidence of prior sexual behavior orders actual previous position under this rule. There are at least four hurdles that must be jumped by the defense counsel in order to on tame the evidence. They must demonstrate evidence of the victim sexual behavior or sexual predisposition. If not, ordinary rules govern the case. That isnt much of a hurdle. We proceed as to whether one of the three exceptions apply. His evidence relevant to one of the three exceptions that that is other source evidence of previous consent or his evidence constitutionally required . Fits into one of those three categories, the military judge must perform a balancing test that may not be familiar to those of you who have asked in federal jurisdictions, but maybe to those who practice in state jurisdictions. They determine whether the value of this evidence outweighs the danger of unfair edge of this to the victims privacy interest. The president added this layer of protection for the victims privacy. A comparison of the value of evidence sought to be admitted against the danger of unfair prejudice to the victims privacy. The next step is familiar to any litigator and it is found in the military rule of evidence. To be admissible the probative is used by judges, trial trial trial. I would like to make a bit of an observation concerning a practical difficulty in the case and it in practice involves the decisionmaking process. I direct the panels attention to the unique balancing test that was added by the president in 2007 in which they compare the probative value in the danger of unfair prejudice. Appeals has recently in a line of cases cap doubt as to the constitutionality of this provision. Has said of appeals notwithstanding the plaintext of the military rule of evidence which requires the judge to do this balancing test that the privacy interest of a victim, the danger of unfair private it prejudice will never tromp the introduction of evidence that is material to the defense and favorable to the defense at trial. That is the constitutional right to present a defense will always trump the victims privacy interests. Case, is found in volume 70 beginning at page 248. Court, although divided in that opinion is united in its skepticism. Victim privacy interest is ever relevant to the determination of the admissibility of evidence in a courtmartial setting. I do not speak for the judge advocate general, but i do not believe that that result is necessary or appropriate. I do believe, and this is based on anecdotal evidence, that it has created a great deal of uncertainty about the state of the law. Victims privacy interest and the danger of victimprejudice to the may ever be considered a military judge. This puts judges in a conundrum. Law, theyllow the risk and ad hoc evaluation of their decision by the court of it might be perhaps for an inexperienced judge, not to mention the fact that she is considering vivus interests, or to disregard the military rule of evidence and obey the dictum in the court of appeals decision. None of these options are desirable. I would suggest that it may be possible for your panel to explore other state and commonwealth jurisdictions. I believe that test is important to protecting the victims privacy interest in guarding against unfair prejudice. That is the only thing we are looking for in this case. In the case of evidence it might be minimally probative. The next slide i would like to is the psychotherapist ruling under military evidence that i would like to give colonel baker or Panel Members a chance to ask questions. I would like to echo something that mr. Barto talked about. Our cases usually come up in relatively small cases where the population is relatively small and the reason why we have the where we borrowed the civil part of 412 is to account for the fact that in our small privateent, getting sexual behavior on the record and into that community really does have a danger of affecting the victims privacy. Think the test is there and i think it is important at we provide our practitioners more guidance. Thank you colonel baker and i would agree with that. The twin purposes of the military Justice System are not only justice but discipline. And good order and discipline within the armed forces. I think the unique nature of military communities and service may justify the consideration of the privacy interests which perhaps in a federal setting or elsewhere might be constitutionally suspect. In connection with the sychotherapists privilege ask questions on 412 and dont want to let that slip. Maybe you will retract it. Does any member of the panel have questions on 412 . Thank you both for your testimony, mr. Barto you said that in describing the judicial making process, that even if the proposed evidence to be offered passes the 412 scrutiny, that there is still this score of three examinations that take place. Do you know cases where evidence passes scrutiny under 412 but is not under 403 question mark can you comment question mark the military rule of evidence requires judges to analyze evidence under rule 403. Evident the rule of evidence 412c3, i believe, expressly requires that. So it happened in every case. I think the most common scenario i can recollect from my own time as a military judge, and even by reference to gattis, it doesnt necessarily result in the exclusion of an entire incident of prior sexual behavior or sexual predisposition on the part of the victim, but what it frequently results in is a narrowing of the evidence tendered, narrowing of the scope of permissible crossexamination perhaps. And in gattis, thats what the judge did. She narrowed the scope of crossexamination to prevent the defense from going too far afield into the victims previous sexual behavior. So gattis provides one example. But id be happy to provide additional examples from the case law in a written submission after my testimony. But i hope that addresses at least initially your question. Thank you. I could offer ive seen it apply, the 403 balancing test apply when theres going to be some sort of delay where, while the evidence may come over the hurdle of unfair prejudice to the victims privacy right, but its still going to take a while to get the evidence. And the evidence is just not worth delaying the trial to get that evidence into court, particularly as i said, i was a judge and we frequently had witnesses that would have to come out there. If i could just the 403 analysis. Yes, maam. In fact, in a particularly troubling aspect of the concurring opinion in gattis, former chief judge efron proposes a methodology where military rule of evidence 403 would even be overcome by material evidence thats favorable to the defense. He would propose that that constitutional imperative to present a defense would even prevent the operation of 403. Theres no logical constraint on the reasoning of that case. Why not allow hearsay . Why not do away with authentication . I paint that as a worst case scenario, but the former law professor said we cant avoid the slippery slope argument. I dont think the court meant what it said in gattis, yet it is creating a certain amount of anxiety and uncertainty as to how not only 412 but 403 apply in this new universe. Any other questions . No, thank you. I know that i am let me start by saying im speaking from Public Record what ive read in the newspapers, but from what i read about the case at the Naval Academy involving the cadets there, i was not under the impression that the military judge in that case bothered with any of your four hurdles. I didnt see anything about an incamera hearing. I didnt hear the only exception that the judge relied on, i understand, was that it was the constitution that the constitution required it, without explaining how the constitution required it. And as i understand it, when the prosecution tried to resort and it was Victims Counsel in that case tried to resort to the specific Appellate Court over that judge, they did not take the case, and then there were petitions filed with the court of appeals for the armed forces, and they did not take the case. So basically, youre telling me about the four hurdles. Doesnt sound like its being followed. And id like to know if you have some comment on that or if you can tell us as a panel how we can get and review the record in that case, as a very public example that upset an awful lot of people. This is one case in which the army is happy to defer to the Naval Services to provide an answer as to how that courtmartial work. But i would give colonel baker time to prepare, in saying that bad cases make bad law. Every day, throughout the world, military judges are routinely applying the provisions of military rule of evidence 412 and 513 without Media Attention and with solicitous concern for both the Due Process Rights of the accused and the privacy interests of the victim. With that, ill turn it to colonel baker to discuss the particular incidence in the Naval Academy case. Sir, i have not reviewed the record of that case. My knowledge of that is, like you, based upon what ive read in the newspapers. So i cant provide you a comment on whether the rules were or were not followed in that case. Certainly our procedural rules do require the judges to make a very difficult decision. And that very difficult decision is to balance the privacy interests of the victim with the rights of the accused. Im confident in the cases that im confident that, as bill said, across the globe, this happens properly a lot. Are there cases where it doesnt . Yes. But i dont think its because theres a problem with the rules. It may be a problem with the folks that are applying the rules. And im not trying to say that the judge in that case improperly applied the rules. I mean, i just dont know enough about the case to comment on whether they were properly applied or not. I just will note that the judge that presided over that case, i believe, was the chief trial judge of the Navy Marine Corps trial judiciary. I would suspect he did properly apply the rules. Thats kind of the best i can do, sir. I think that m. R. E. 412 and m. R. E. 513 do properly provide practitioners the ability to apply it with some clarity as weve discussed in the added prongs. Lets turn to those rules just for a second, because you opened your testimony, talking about what i thought was a proposed rule to allow victims a right to be heard through counsel. I guess i dont understand currently what the point is of having a closed hearing if it is not currently the practice that victims can be heard through counsel. The victims are the people with the privacy interests during that hearing. The prosecution may care about it, but they have a broader concern, which is to get a case to trial and theyre not going to have to live with the adverse publicity about their sex lives that the victim will. If theres going to be a hearing, you certainly dont expect the victim to be representing themselves. So why is it that the military needs to propose a rule that victims be heard through counsel . Why isnt that already a matter thats accepted across the board . The victims always had a right to be reasonably heard at these proceedings. The purpose of the joint Services Committee proposing that we clarify that that right occurs through counsel was there has frankly been some question about it. The case of burg went up to the court of appeals for the armed forces and we wanted to ensure there was no question about whether the victims right to be reasonably heard at a 412 or 513 hearing included the right to be heard through counsel. I guess i dont see why providing clarity to me is a good thing. It is a good thing. Im pointing out that the fact that you have to provide that clarity is evidence that there are an awful lot of military judges who are not allowing victims to be heard through counsel and theyre expecting young military recruits to speak for themselves on legal issues and not to be heard through the counsel which the services are providing to argue on their behalf about their privacy. And i just think that thats i think its long overdue, frankly, but i think its an indication that theres something wrong. If i could jump in on behalf of the army. Mr. Stone, in the current military rule of evidence, which mirrors the federal rule of evidence in this regard, the victim must be afforded a reasonable opportunity to attend and be heard. So there is, as colonel baker noted, a fundamental right for the victim to be present and be heard. What is recent is the advent of special Victim Counsel or victims Legal Counsel which have been now provided by congress through statute in the National Defense authorization act, i believe, of 2013 that now create a specific attorney position to advocate on behalf of victims. The joint Service Committee change that is being contemplated is in response to this new phenomena of special victims Legal Counsel that are now part of the legal landscape and which need to be accounted for in the rule. Assuming that judges everywhere are not respecting victim rights in the face of a clear mandate from the commander in chief that they do so, thats just not supported by my own experience and i would venture to speak in colonel bakers as well. I guess my response to that is that victims right to counsel have not only been around for decades but they were enshrined into federal law, in 2004, in the crime victims rights act. All youre telling me is that recently congress made Victims Counsel freely available to victims but counsel has been available to victims for ten years. And its long overdue that military judges didnt expect the victim who has counsel to have to get up and make the claim about privacy, him or herself, and not through counsel. Any other comments . No. I was just going to say its true that the federal victims right act talks about counsel. But the reality is most victims do not have counsel in the civilian world or any other world, because they cant afford them. It is a relatively new phenomenon, both in the state so it doesnt surprise me that its also a new phenomenon and a good one in the military. Actually, in the military, you get counsel automatically if you want it, and you dont pay for it. So its gone beyond most of the programs that exist in the civilian world. I was interested in how article 32s are working now. Because i think colonel baker, you started to talk a little bit about it. And did you Say Something about eliminating the constitutional aspect of the rule . Im interested in that too. And thats two different questions, i recognize. Ill start with the second one first, because its easiest. The proposed the other way, if you could. The proposal thats currently before thats out for Public Comment from the joint Services Committee is to specifically exclude the constitution exceptions at article 32 hearings. 412, 513 and 514. So at an article 32 preliminary hearing, the first two exceptions would apply, and the third exception would not. Does that answer your question on that issue, maam . And we can the staff can get you a copy of the proposal. Its on the web. What would the Practical Impact be of taking away the third exception . The Practical Impact of taking away the third exception would be the kind of the debate at an article 32 hearing about such things that bill talked about bias, motive to fabricate, prior false allegations, things that typically are raised under the constitutionally required prong would not be deemed relevant at a preliminary hearing, whose only real purpose is now to determine probable cause, whether the accused should be courtmartialed for a particular offense. In the first two exceptions, they could provide information to the preliminary hearing officer that could make it that there wouldnt be probable cause, if there was valid evidence that someone else was the source of the exception. Removing that exception also kind of reflects the fundamental change to article 32 hearings, which narrowed the limit and scope of the hearings and have made it so its not a discovery tool. Your other question, maam, was how are 32 hearings is the question, how is 412 being applied at 32 hearings now . Yes. Were there always 412 hearings at article 32s or at least were there always supposed to be . There always were supposed to be. Certainly i think that anecdotally i can state they werent always done right. I talked last evening with colonel joist, who runs our Legal Counsel organization and her counsel are actively involved in theyre not calling them motions because its at a preliminary hearing but theyre actively involved in litigating 412 issues at article 32 hearings. So we certainly are applying them now, i think, frankly better than we have in the past. The other change, judge jones, is that judge advocates are now serving as article 32 officers. A military attorney is now presiding over the preliminary investigation preliminary hearing, as we transition terminology and purpose. And the presence of an attorney in the room thats sensitive to these issues makes the system better able to protect victim rights while reaching its probable cause determination as well. And i think i understand this now, because if you eliminate the constitutional analysis, youre really eliminating those types of evidentiary rulings that you may need to make if it goes to trial or would, but that would not be relevant just to look at the facts in a probable cause determination. Is that the idea . You may have answered this already. You opened your remarks, colonel, by saying that these two rules of evidence, when the procedural rules are properly applied, that they work well, words to that effect. Are there some repeated issues with regard to the proper application of procedural rules . Perhaps theyve been addressed by these article 32 changes . One of them kind of historically frankly weve not been very good at applying them at article 32 hearings. A lot of it, because of the wideopen nature of an article 32 proceeding that has really focused on discovery and so, with the judge advocate presiding over an article 32 hearing, and a counsel representing the victim, i think that you have a much better chance at an article 32 hearing that the procedures are followed properly. In a session with the military judge, i think that those have traditionally been done well. Are there exceptions, as mr. Stone brought up . Yes. I cant say weve done it right every time. But i think that, in the vast majority of cases, courtmartials right across the judge, our military judges do a fantastic job of balancing the interests of the victim against the interests of the accused. If i could gently tug the presentation toward the military rule of evidence 513 as well and the psychotherapist privilege, i would candidly tell you that this is a challenging area for investigators, for counsel, and for military judges. And this is, given the Supreme Courts decision in jaffe v. Redmon several years ago, there is no federal rule of evidence, for example, describing a psychotherapist privilege, so this is a relatively new rule. And proper sensitivity to the psychological counseling records of victims is something that everybody is learning as we move forward from investigators, who, in the past might have just gone to the hospital and obtained those records, from counsel who might review them before submitting them to the military judge, to the judge, who didnt have guidance in the past but now has a relatively strictly constructed rule of evidence. All three of the participants in the process are learning. And its getting better. But it places a premium on the ability of military judges to monitor the progress of that learning and to intervene with protective orders when appropriate to safeguard victim privacy concerning her psychological or Mental Health counseling records. For example, much like judge baker, after this rule was enacted, i found myself, as a trial judge, reviewing the Health Counseling records of a child victim of sexual abuse. And not only was it psychology, it was pediatric psychology. Not only was it pediatric psychology, the person writing the notes was a master of social work as well. How they got time to do all these degrees, i dont know. But i, as a layperson, more or less, am attempting to screen psychological counseling records in my chambers, on the road without expert assistance and the like. I know now that i could have appointed an expert to assist me in reviewing those records and making sense of the medical and sociological notations that were in the record. But i think we, as a community, need to realize that judges but i think we, as a community, need to realize that judges discretion is key and judges are not may not be allknowing. If were to be properly sensitive to protecting the right of the privacy interests of the victim and ensuring that potentially exculpatory information is released to the defense counsel. Id like to go back to 412. First of all, mr. Bartow, you talked about the relevance of sexual predisposition of the victim. Why is that a standard . Maam, its a standard that was taken from the federal rule of evidence, i believe. Would you point out where it says predisposition . I would have to investigate that and look at where that language came from briefly. But let me just suggest its not in the federal rules. The federal rule exactly was to, having been the author, to eliminate the idea of predisposition, that and the logical fallacy that if a woman ever said yes or said yes five times or said yes 50 times, she might say no the next time. That was the whole point of that statute. So i find myself troubled, to say the least, at the use of the term predisposition to sexual behavior, as a standard for anything under 412. And i would urge you, sir, to reconsider your use of that terminology. But its an explicit exception, i mean, so that it is excluded. Evidence of predisposition is excluded. But you were saying, as i heard you maybe i misunderstood that that could be introduced. That is not what i intended to communicate to you. I apologize then. The military evidence excludes as irrelevant evidence offered to prove a victims sexual predisposition. Im glad to see that were on the same ground on that. Okay. Now, the second point you make is about how well the rule is working, and i must say that i found myself quite astonished ill just use that adjective at the decision of the court of appeals for the armed forces in the case of u. S. V. Ellerbrock. And if thats the position of the court of appeals, then i dont know how we can more clearly state what 412 and the military rule of evidence was designed to accomplish, because i think the court misunderstood that. I mean, going back to the point i just raised before, in this case, im sure youre familiar with it. Yes. U. S. V. Rock follows gattis. Different judge writing the opinion, but same issue. Right. And here we go again, as i see it, where the court i thought the dissent made a very good point. Both dissents were much more persuasive to me. But basically the court said that since she i mean, basically that she didnt want her marriage to end, and that showed that she had a motive to fabricate. And so if you have done fabrication before, then that seems to me to be relevant. But just because even assuming that that in fact was the case, that she didnt want her marriage to end, i dont know that that shows she had a motive to lie about a rape. And so im very concerned about how the courts are interpreting this and particularly because i think if we go back to the underlying purpose of 412, and going again to this constitutional point youve raised, that the reason its, quote unquote, favorable to a defendant to raise the prior sexual history of the victim, its because thats a huge what i would call smear tactic. And that is i mean, not just prejudicial to the victim but prejudicial to the truthfinding and factfinding ability of the jurors or the court, because it is so prejudicial, given the stereotypes and the cultural attitudes we have in this society. So im just wondering. Youre asking us to look at that specific issue about how other states handle this. But im wondering what we have to do to get judges in the military to understand that just because a woman had said yes before doesnt mean shes going to say yes again. Is this a training issue . Is it the statute isnt clear enough . Interestingly, maam, the court of appeals for the armed forces is a fivejudge panel of civilian jurists appointed from civilian life, specifically excluded until recently from the military ranks, in order to provide oversight to the military Justice System. I cannot defend and in fact have brought it to your attention, that gattis and ellerbrock, represent a real curiosity at best and perplexity at worst to the practitioner in the field, because the plain language of 412, as judge effron says, until the rule is changed, it remains in effect, subject to our obligation to interpret the rules in accordance with the constitution and applicable legislation. In the absence of any meaningful justification for the courts actions in gattis and brork, that puts practitioners and judges alike in a difficult situation, and i dont think many of us would jump to the defense of what you just described in gattis and ellerbrock. Its inexplicable to this practitioner. I cant speak to gattis, because i havent read that case, but i can speak to ellerbrock, and i just find myself perplexing isnt the word i would use. I think it violates the understanding of the statute. Here we are. Federal rules of evidence was in 76. Here we are, almost 40 years later, and, you know, the same cultural prejudices are affecting the courts decisions here, and particularly if you take the gattis decision that anything thats favorable to the defendant has to come in as a constitutional matter, well, smear is favorable to the defendant. It totally guts 412, if thats the concurrence and if thats what the military judges are going to follow. What is left of 412 . There are those who make the country argument. But i would point out, in ellerbrok, that the judge in that case got it right. By your criteria and by most observers, so it was the superior court to the military Justice System that produces the result thats so difficult to understand here today. Well, what suggestions do you have for this panel, assuming that my colleagues agree with that . I cant speak for them. Im surprised to find myself in the majority on any issue, but im glad to be in the majority on this. In any case, what suggestions do you have for the panel to deal with this problem . As i was preparing for testimony today and i was reviewing the rape shield rule provisions of the 50 states and the various commonwealths and territories, i was struck by the variety of ways in which victim privacy was incorporated into their criminal evidentiary codes without raising constitutional issues of the sort that the court of appeals for the armed forces attached that significance to. All i can suggest is to reiterate my earlier suggestion that oftentimes its the symphony of voices in a state or commonwealth or applying the best of those statutes in a recommended revision to the rules of evidence that might clarify for example, the thing that occurs to me, and this is not a proposal to the judge advocate general, but as a former policy official an law professor, i think one of the fundamental flaws of the court of appeals decisions in gattis and ellerbrock is that they view the conclusion that evidence is constitutionally required to be admitted as a static decision. But i think a more coherent way of viewing it is that that is a category into which a defense counsel is attempting to fit evidence. But until the probative value of that evidence is examined, until the danger of unfair prejudice to the victims privacy interest and until the danger of undue delay, substantial confusion to the members, waste of time and all those other things are considered, the question of whether that other sexual behavior and sexual predisposition could ever be relevant is a dynamic decision thats not finished until we get to the last step of that diagram that i provided for you. You cant start with the conclusion. And thats what the court of appeals for the armed forces appears to be doing in gattis and ellerbrock. Perhaps a more dynamic description up front as to what the drafters are intending by evidence that is constitutionally required to be admitted would help clarify for military judges. Thats the ongoing determination thats being made. Would it clarify matters if the definition of consent were changed . I think that would have the most affect upon the second exception, the previous interactions with the accused in a given case. But i cannot foresee how that would specifically directly affect the other types of evidence that are commonly introduced under this exception, the constitutionally required exception. I can think that a narrowing of consent for example, theres this class of cases in the state law and beginning in military law in which the previous sexual behavior is so distinctive that it communicates to the accused, either because he saw it or because he knows of it, that somehow the victim has given her consent to this same sort of activity in this instance. By narrowing the definition of consent, i think we would exclude a large majority of those cases from ever getting past the initial threshold with the judge, because the consent that is at issue is the consent today, to this particular military service member, and this particular setting and circumstance, not what a person chose today six months ago with other individual or individuals. So i can see how it would narrow or it would ease the judges burden and clarify the practitioners lot in certain circumstances. It would also help in terms of the, quote unquote, constitutional analysis thats taking place because of the crime. Thanks. I think we took all your time on 412. Do you have something you want to say to us on 513 . I have said what i intended to say about 513. Its important that the judge know when the judge doesnt know, and seek expert assistance. I think thats something we can do better in the future. We have the Regulatory Authority to do so and its not often done. But i noticed mr. Stone. Yes. On 513, i thought the point of the proposal, which president clinton authorized in 1999 and 513, was that kind of psychological counseling evidence did not automatically get to the judge in every case to do what he felt like doing, and my understanding is that is exactly whats happening and i think it undercuts the 513 rule, just like you were discussing, how the 412 rule is undercut. As i understand it, the practice has been that military judges tell the prosecutor to go get the Military Hospital records of the people in question. And they get them. And then the judge decides in camera, without any recognition, that the rule is intended to make that a very narrow exception and a small number of cases and not the standard operating procedure, and that the Military Hospitals, because theyre in the chain of command, turn these records over, and unlike private hospitals, theyre not requiring hipaa releases from the patient. And in fact, again, to go back to it, in the Naval Academy case, the records of counseling on the navy base were ordered and just showed up. And so id like your comment as to whether or not i can tell you that my feeling is that that rule has also been completely undercut, because its not the business of the military judge to decide in every case in his discretion whether those records come in but only in a narrow a very narrow view kinds of cases. Sir, i certainly would agree with well, there has been, since we developed 513, there certainly has been an increase in the number of cases with which 513 has been litigated. When these cases first began, i dont know if there was a lack of awareness that these records existed or that more people are getting counseling. It may be a combination of the two. In my experience, this is a bifurcated process or almost a trifurcated process. Not until the closed hearing is done is the trial counsel ordered to go get the records. So if there are cases where the judge is ordering those ahead of time, i can assure you thats not the process. The rules lay out the process, that they hold the hearing and then make to make a determination whether the judge is going to review the records in camera. Its not an automatic. So i can only speak for the cases with which i know about. But in those cases, our judges are properly applying m. R. E. 513. Its not a rubber stamper or automatic. But now that the military services have Sexual Assault counseling, i think its become uniform that the Sexual Assault counselors tell the victims that they can get psychological counseling if they feel theyve been raped and where to get it. So its now the rule rather than the exception that the defense counsel are going to expect that theres psychological counseling records. Yes, sir. That is in fact true. Our victims are getting more counseling than they have before. There is a requirement. Our trial counsel have an obligation to provide brady materials, and so part of their Due Diligence is to find out if, upon request from the defense, if theres been records, to find out if the records exist. If theres a motion filed, the victim is notified and the victim is provided counsel. And at a closed hearing, the judge is the parties talk about what or whether those records should be provided to the judge in camera. The records arent provided before the hearing. Thats not the way the rules are written. So if there are cases where that is happening, theyre not applying the rules properly. Again, the advent of the victim Legal Counsel or the special Victims Counsel provides the victim another tool to protect his or her privacy rights. I mean, its hard for me to talk about cases where the procedures arent followed, because in my experience, the procedures have been followed. I guess what you just described to me is not a procedure that i find acceptable. The Supreme Court said in the jaffey decision that brady is not a reason to invade somebodys psychological counseling records, which you just articulated. And if the records are routinely being obtained as if theyre prosecution records from Military Hospitals on base, then you ought to change your procedures and recommend that people see psychological counselors off base, because those records should not be released, as you just outlined, for reasons like brady. Sir, i mean, theres a series of cases that talk about a requirement for prosecutors to provide brady material. And i want to make sure that im clear. Im not saying is that the trial counsel, upon a request from the defense, gets the files and starts looking through them. Thats not what is happening. But what is happening is, if theres a request, and theres a motion filed, the judge makes a determination. Whether or not the judge makes an incamera review of those records. And theyre applying m. R. E. 513 as written. The judge has to weigh the balancing of the privacy interests of the victim and the Due Process Rights of the accused. Im suggesting theyre doing exactly what we just heard in the 412 context. Theyre using the, quote, constitutional exception to order those records in every case. Thats all. And that therefore they have completely undercut the rule, as we just heard with 412. Mr. Bartow, did you have a point that you wanted to make in response . No, madam chair. Thank you for the opportunity, though. I have one quick question, please, for you, mr. Bartow. One of the Reading Materials which was provided to us, which was a 2003 article on m. R. E. 513, it was stated that under the Army Regulation at that time, that trial counsel, cid agents and commanders, could access Mental Health records if they had an official need for the information. That was contrasted with the air force rule, which did not allow that, because of 513. My question is, has that changed . Is the army now changed so its operating in constance with the spirit of 513 . I dont want to overstate my knowledge in this area, but i believe it has changed with the advent of hipaa and increased awareness of victim privacy interests. My understanding is that that is no longer army policy. But i will verify that and provide that information to the panel. I will. Thank you very much. Mr. Colonel baker and mr. Bartow, we very much appreciate your informing the committee of the facts that you have. Thanks for your testimony this morning. Okay. Well go to our next panel. Hi, everybody. For the first time in six years, the Unemployment Rate is below 6 . Our businesses have had the longest uninterrupted job creation streak in history. But the typical family has not seen a raise since the 1990s. Folks are feeling as squeezed as ever. That is why i will keep pushing for policies that will create jobs faster and raise wages faster. Rebuilding infrastructure, making sure women are paid fairly, and making it easier for young people to pay off student loans. One of the fastest ways to help folks get ahead is raising the minimum wage. Ask yourself, could you live on 14,500 a year . That is what someone working fulltime on the minimum wage makes. If they are raising kids, that is below the poverty line. That is not right. A hard days work deserves a fair days pay. Right now, a worker on the federal minimum wage earns 7. 25 an hour. It is time to raise that to 10. 10 an hour. Raising the federal minimum wage to 10. 10 an hour would benefit 28 million american workers. 28 million. These are not just High Schoolers on their first job. The average worker who would benefit is 35 years old. Most lowwage workers are women, and the extra money would help them pay bills and provide for families. It also means they will have more money to spend at local businesses, which grows the economy for everyone. But congress has not voted to raise minimum wage in seven years. Seven years. And when it got a vote earlier this year, republicans voted no. That is why, since the first time i asked congress to give america a raise, 13 states, 21 cities, and the District Of Columbia have gone around congress to raise their worker wages. More companies are choosing to raise wages. A majority of Small Business owners support the gradual increase to 10. 10 an hour. I have done what i can on my own by requiring federal contractors to pay workers at least 10. 10. An hour. On friday, a coalition of citizens told republicans in congress to stop blocking a raise for millions of hardworking americans. Because we believe that in america, nobody who works fulltime should have to raise a family in poverty. I will keep up this fight until we win. Because america deserves a raise right now. America should forever be a place where your hard work is rewarded. Thanks, and have a great weekend. I am scott brown, republican candidate for senate in new hampshire. In these closing weeks of the 2014 campaign, americans are realizing how much is actually on the line, especially when it comes to National Security. We are at a dangerous moment for our country and for our friends. It is starting to feel like the world is on fire. So many crises getting worse, so many adversaries gaining ground. In iraq and syria, and expense of territory larger the new england has now been lost to a terrorist army, isis. Our closest ally in the middle east, israel, faced rocket attacks all summer long. In iran the extremist regime is still intent on Building Nuclear weapons. In ukraine, americas friends are dealing with belligerence from the russian army. In china, it is bullying neighbors while pressing ahead with a massive military buildup. So many challenges, so many threats and problems, and all at the same time. Yet the Obama Administration seems only more confused as things actually unravel. This is what the world looks like without american leadership. So it is hardly surprising that National Security is a central issue in this election. I believe that our state deserves an independent senator who will put Party Loyalty aside and put our National Interest first, each and every time. Rather than simply voting in supporting the failed policies of president obama over 99 of the time. Like many republicans, im running to restore american leadership. How about start by protecting our own borders . Isis has been threatening to send people here to kill americans unless demands are met. Our porous border is an obvious pathway for terrorists to get in here, but in the administration there is more talk of amnesty by executive decree after the election. Lets not kid ourselves. When enemies of our country are planning attacks and leaders in our country are planning amnesty, there is something wrong. We have to get serious regarding this nations borders and enforcing this nations laws. Second, we need to reverse the direction and drawdown of our defense. We have seen a military reduction that is massive. Everywhere, army, navy, air force, marines are affected. We are on track to have a small army then what was before the second world war. At a time when so much is expected of our military, we need to give it all the manpower, all the equipment, and all the support it needs to succeed in each every mission and come back safely. We owe that much at least to the people who defend us. We need to keep faith for those american veterans. The v. A. Administration has been an outrageous failure under this administration. Even as the federal government tries taking over our whole health care system, it cannot deliver on the most basic promised take care of our veterans. This election is a moment of accountability, not just at the v. A. , but all across the federal government. And every part of america, people have deep worries about National Security and border security. All this when so many are still worried about jobs and economic security. Yet we are asked to believe this is the best america can do. I dont believe it. I dont accept that defeatist attitude for one moment, and neither should you. We can secure our border. We can maintain military superiority that no rival will dare to question. We can restore this great countrys leadership in the world. And everything rides on our success. As you know, the president recently said he is not on the ballot, but his entire agenda is. I agree with him. Thats your invitation to send a clear message to the establishment in washington. Elect republicans to the house and senate, and we will bring that Big Government agenda to an end, and we will set this country to a better path. This is scott brown and new hampshire. Thank you for listening. Pan 2014rt of cs[a coverage. Moments. Ps of key. Nstantly share your reactions the battle for control of congress. Follow us on twitter, like us on facebook. And now, our campaign 2014 coverage continues with the second debate for the iowa senate seat. Bruce braley is facing state senator joni ernst. Current senator tom harkin is retiring after five terms. The race is listed as a tossup