Out of terrorists hands. Washington journal on span. Here are just a few of the comments weve received from our viewers. Id like to speak to that i am regulation and a man named atta who had a visa that had expired and on 9 11 she took he took one of our planes and crashed it, one of the two towers. You know, he should have gone back and we still would have had the gs that were built on our land, that were our landmarks. And something we were proud of. That is a good reason, i think, why we should not let people who are not legal, my grants, in this nation. Im im calling with regard to the Catholic Charities you had n span with regards to the representative from texas. I came to the United States from at least with the Catholic Charities. Everything that that young lady said was wrong. Dd she does not know the procedure. She t me so mad that doesnt know what shes talking about. Joe crowlly, congressman crowley, and goo terse mentioned that the justice or justice would say or justice is being given to the illleels who have come here illegally and broken our i am regulation laws is to punish them. Thats what justice is about. To send them back and have them come back in through proper channels. Obviously congressman gutierrez is not worried about diseases coming to our country like ebola. Weve had our First Experience with here in this country, in texas. So i think he should get off his emotional high horse and start to think a little rationly about the rest of the citizens of the United States and helping protect us from these diseases that are prevalent in other countries because their people were not inoculated. Continue to let us know what youre thinking about the programs youre watching. Or us at 202 hch 6263400 send us a tweet. Join the cspan conversation. Like us on facebook, follow us on twitter. This fivemember panel met friday to look at the statues in the military code of justice to determine whether theyre clear of need to be updated. This portion of the hearing is about an hour and 10 minutes. Ok. E will morning again. Were now ready sorry to be a few minutes late to deal with the panel thats going to focus on military rules of evidence 412 and 415 and court molecular sham proceeding. We have three i see, two witnesses before us. Olonel john baker, u. S. Marine core and mr. William bartoe, Army Highly Qualified Expert attorney advisor. Welcome to both of you. Well start with you, colonel baker. Thank you for your presence. Thank you, maam. Good morning. As you noted im colonel john baker, the Deputy Director of [inaudible]. Mr. Bartoe and i are here to discuss 412 and 513 and how theyre litigated at article 32 hearings in Courts Martial. To give my comments perspective, ill note that ive litigated issues as a trialaged as a defense counsel. Ive ruled on them as a military judge. Ive taught class toss subordinate trial and defense counsel on how to litigate these cases in court. Most recently bive been a policy maker as a member of the joint Services Committee where we recommended a revision to rules that would apply the protection of the articles is at hearings but would eliminate the constitutionally excepted. Theyve recommended changes to m. R. E. 512 to clarify that a victims right to be heard at an m. R. E. 513 hearing includes the right to be represented by counsel. Id like to offer a couple of observations and an anecdote before i turn the microphone who will walk you through the prorlede rules. Ill offer as a general proposition that when the rules are applied, that the rules strike the balance between protecting a persons privacy interest and finding the fact nder the innocence of an accused. Ive seen an increase in 412 litigation and an even larger increase in mre 513 obligation and ive seen a increased concern in protecting the privacy of victims. Please take into did new role that victims Legal Counsel play in protecting a victims privacy rights. In marine corps our victim Legal Counsel provide our victims a significantly improved right to be heard in article 32 hearings and article 39 a sessions and m. R. A. 12 and 513. To be honest, i was surprised this morning when i looked at the agenda of speakers and didnt see someone from the victim Legal Counsel or a special Victim Counsel to address this issue. Ill close [inaudible]. Yes, maam. This lasts the whole day. Ok. You can be at ease on that. Ok. Ill close with this anecdote ifment served as a military judge in okinawa, japan from 2001 to 2013. In the earlier days of m. R. E. 5123 obligation. I remember my first encamera review of a treatment record. It was a Sexual Assault allegation and the defense had proffered that the victim had made numerous inconsistent statements regarding the alleged assault. I approached this hearing thinking that it would be like any other motion session that id presided over. I was wrongs about that. The victim was notified about the hearing and she appeared and she made a pretty telling argument that i did not review her records. The defense counsel who was representing a young marine made an even more convincing tharget the records could contain material that were constitutionally required and at the conclusion of the session i ordered the records be produced under seal for me to review encamera. I think this was the first time that i really had appreciated how personal and private the communications are between the victim and her treatment provider. During the course of my review i discovered a piece of critical information that i thought needed to be disclosed to the accused and eventually to the fact finder. As i balanced these competing interests of these two young active duty marines, i really became mindful of the discretion that i had as a military judge and that i needed to have in order to make the proper decision. So with that, ill turn the microphone over to mr. Barto you and i look forward to answering your questions. Thank you. Madam chair, members of the panel, good morning. Its a privilege to speak with you this morning about the military rules of evidence that apply the rain shield role and the psyche they were pist privilege. My particular emphasis is going to be on the various ways in which the system safe fards victim privacy at pretrial hearings and during the Court Martial. I speak to you as someone who has served in almost every position in the military Justice System. Ive been a prosecutor, defense counsel, law professor, policy official, staff judge advocate and a military judge at both the trial and appellate level. I also speak to you as someone who has worked outside the military system, having spent the last five years with the federal judiciary as the senior attorney and court executive. So im very confidence and comfortable when i echo colonel baker and say that the military Justice System effectively provided due process for those accused of crime, while safeguarding privacy interests of victims of crime, particularly concerning their previous sexual behavior, their sexual predispositions and sessions with psychotherapists. I want to begin with an introductory note. Its important to remember that when dealing the the military rules of evidence, were dealing with a body of law thats created by executive order. The president has been authorized by congress in 10 u. S. C. 836 to promulgate rules of evidence, and this is the language of the statue so far he considers practicable, applying the principles of law and the rules of evidence recognized in the trial of criminal cases in the United States district courts. As such, youll notice a fair similarity as we consider these two provisions with those in the federal rulings of evidence and many state and Common Wealth standards as well. Now, if i could have the first substantive slide, please. Military rule of evidence 412 implements a rain shield rule in the military Justice System. It is a rule of relevance and it excludes as irrelevant two broad categories of evidence, evidence thats offered to prove that a victim engaged in other sexual behavior than that charged and evidence offered to prove a victims sexual predisposition, that is, her dress, speech, or lifestyle. Now, its important to note that this is, as i mentioned, a rule of relevance. It is not a rule of privilege. As such, there are three exceptions barred from the federal rule that you may find very familiar. The first is that the military judge may admit into evidence not evidence of specific instances of sexual behavior by a victim that are offered to demonstrate that another person, a person other than the accused, was the source of seemen, injury, or other physical evidence. This exception is quite frankly, far less encountered today than when i first began practicing due to the advent of sophisticated forensic examining and d. N. A. Evaluation as well. The second exception is that a military judge may admit evidence of specific instances of sexual behavior by the victim with the accused that is offered as the madam chair noted earlier to prove consent by the alleged victim in the case. This exception is criticized in the literature under the on the basis that consent at some past point does not mean consent today, but it remains a part of federal and military jurisprudence, but some states and common welts have limited the application of this provision almost with the statue of limitations, that the Sexual Activity with the accused must be within a certain period of time in trollings the charged offense, like one year or less in some state systems. And finally, the last exception, and the exception about which theres the greatest amount of obligation. This is the exception that would allow evidence in the words of the rule the exclusion of which would stroilt Constitutional Rights of the accused. What does that mean . The rule does not define that moo means for the prack tissue what that means for the practitioner. Evidence usually falls into one of several readily recognizable categories, in my experience. For example, evidence of previous sexual behavior that establishes a bias, prejudice, or motive to fabricate on the part of the alleged victim in the case. Similarly, this exception is used in military practice to admit evidence of demonstrably false allegations of briar sexual behavior by the alleged victim or sexual behavior or predisposition thats so distinct active and so similar to the sexual offense at issue that it explains or provides context for the instant ealings. Allegationles. Interestingly, many states codify these commonly encountered circumstances in their own rules of evidence for criminal casings, but in military practice, these are adjudicated on an ad hoc basis by the military judge upon request by defense counsel in a given case. Well return to some issues that are encountered by plaque tissuers in and judges a little later on in the presentation. Before i turn to the procedural requirements, its helpful to look at what this rule of evidence is intended to do. As madam chair could probably recite from memory, this draft analysis points out, this rule is aimed to safeguard the victim against an invasion of privacy, potential embarrassment and sexual stereotyping thats associated with the Public Disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding pros. It goes on to say by affording victim protection, in most instances, this rule also encourages victims of sexual offense to participate in Legal Proceedings against the alleged offenders and under circumstances without which the victim might be temperatured to not go forward with her allegations. I could have the next slide, please. The procedural requirements under military rule of evidence 412 are similar to those in the federal rule of evidence. I wont read the slide to you, but i will point out two differences in military practice. Whereas the federal rules of evidence allow a 14day period in which the typically defense counsel muss submit a written motion giving notice of an intent to use one of these exceptions to admit evidence of prior sexual behavior, the military Justice System typically applies a shorter decline. Only file a motion five days ahead of the plea instead of 14. This is because of the slightly more rapid pace of military trial work than federal or state criminal trials. Like the federal system, it also requires this this rule requires that the victim be notified by defense counsel or the government of an intent to use prior sexual behavior or sexual disposition evidence and allows notification to be provided to the victims representative or counsel. When a military jidge receives a motion like this indicating an intent by a party to use evidence of prior sexual behavior or sexual predisposition, that judge must hold a closed hearing, a hearing that is closed to the public. The rule refers to it as an encamera proceeding. Its held in the courtroom but without the public present. Only the parties and Necessary Court staff are present. The jurors are never present for this hearing, and the military judge must act to seal the pleadings, any evidence thats received during the hearing and the transcript of the hearing and prevent its review unless ordered by the court itself. Usually military judges enter an order that allows the exhibit to be opened by the reviewing court, but not necessarily the convening authority or other counsel during the post trial process. And any order issues by the issued by the military judge must under this rule specify exactly what evidence is going to be offered per missably and which areas may be explored on direct and crossexamination. Ive summarized the judicial Decision Making under military rule of evidence 412 in this graphic. The first this chart depicts and i chose a particular perspective of a defense counsel seeking to admit evidence of prior sexual behavior or skull predisposition under this rule. There are at least four hurdles that must be jumped by the defense counsel in order to in order to obtain the admission of such evidence. The first is they must demonstrate evidence of the victims exull behavior or sexual predisposition. If not, the ordinary rules of evidence control the cailings. Thats not much of a hurdle. We proceed to whether one of the three exceptions apply. Is the evidence in this circumstance; that is, other source evidence, previous consent, or is the evidence constitutionaly required. And if it fits into if the evidence fits into one of those three categories, then a military judge must perform a balancing test that may not be familiar to those of you who have practiced in federal jurisdictions but may be familiar to those of you whoover practiced in state venues. This is requires the military judge to exam the evidence thats tendered by the defense and determine whether the value of this evidence, the probative value outweighs the danger of unfair prejudice to the victims privacy interest. Madam chair may recognize this provision from a civil codge text in federal rule of evidence 412. The president in 2007 added this layer of protection for victims privacy to military rule of evidence 412 and military judges do this threshold analysis, a comparison of the value of the evidence sought to be admitted against the danger of unfair prejudice to the victims privacy interest. The judge can proceed only if she finds that the probative value outweighs the take of unfair prejudice to the victim. The next step is familiar to any litigator, and it is found in military rule of evidence 403, which is identical to federal rule of evidence 4 3. The probative value must not be outweighed by the danger of any of the factors identified in military rule of evidence 403, confusion of the issues, undue delay, waste of time or confusion of the jurors in this case. The circumstances frequently used by judges to exclude evidence in these circumstances, the minitrial, the trial within a trial over the victims sexual behavior or predisposition. If and only if the defense meets these four hurdles relevance, exception, probative value, and 403 analysis, may the military judge admit the evidence at trial. Id like to make a bit of an observation here concerning a practical difficulty in the case law and in practice right now for military justice practitioners. It involves this Decision Making process. And i direct the panels ttention to the unique balancing test that was added in president in 202007 which they compare the probative value of the evidence with the danger of unfair prejudice to the victims priversy. The court of appeals to the armed forces has recently in a ine of cases and their progeny cast out as to the stult of this provision as applied in a criminal setting. The court of appeals has in a rather expansive dicta said that notwithstanding, the plain text of the military rule of evidence, which requires the judge to do this balancing test, that the privacy interest 06 a victim, the danger of unfair prejudice to a victims privacy interest will never trump 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 members the victims privacy interest. This case, United States versus gattis is found in volume 70 of the military justice reporter beginning, i believe, at page 248. And the court, although divided in that opinion, is united in its skepticism towards the applicability of this provision and whether the victims privacy interest is every relevant to the determination foff admissibility of the evidence in a Court Martial setting. I do not speak for the judge advocate general in this next observation but i dont believe that that result is either necessary or appropriate under the military rules of evidence. But i do believe and this is based on anecdotal evidence by military judges and practitioners that it has created a great deal of uncertainty about what the state of law is concerning military rule of evidence 412 and whether the victims privacy interest and the danger of unfair prejudice to the victim may ever be considered by a military judge. This puts judges in a bit of a conundrum