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 DepartmentJudicial 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