Armed forces has recently, in a line of cases and their progeny, cast doubt as to the constitutionality 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 interests of a victim, the danger of unfair prejudice to a victims privacy interests, 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 victims privacy interests. This case, United States versus gaddis, 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 toward the applicability of this provision and whether the victims privacy is ever relevant to the admissibility of evidence in a courtmartial setting. I do not speak for the judge advocate general in my 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 reported by military judges and practitioners, that it has created a great deal of uncertainty about what the state of the law is concerning military rule of evidence 412 and whether the victims privacy interests and the danger of unfair prejudice, not just prejudice, but the danger of unfair pledge prejudice to the victim may ever be considered by a military judge. This puts judges in a bit of a conundrum. Because, if they follow the law as promulgated by the president , they risk an ad hoc evaluation of their decision by the court of appeals, their action being deemed unconstitutional. The incentive might be for perhaps an inexperienced judge not to mention the fact that shes considering the privacy interests but reach the same outcome anyway, or to disregard the military rule of evidence and obey the dicta in the court of appeals decision. None of these options are desirable. I would suggest that it may be, and im going back on the record here, that it may be profitable for your panel to explore other state and commonwealth jurisdictions in which that balancing test has been successfully incorporated in their criminal jurisprudence without constitutional objection. Because i believe that balancing test is important to protecting the victims privacy interests and guarding against unfair prejudice. Remember, thats the only thing were looking for in this case. In the case of evidence that might be minimally probative. The next slide id like to consider is the psychotherapist privilege, under military rule of evidence 513. But id like to pause and give colonel baker an opportunity or any Panel Members a chance to ask any questions about military rule of evidence 412 or any of my observations. I would like to echo something mr. Barto talked about. Our courtsmartial our cases usually come up in relatively small places. Where the that the population is relatively small, and there is i think that there is a the reason why we the kind of the added where we borrowed the civil part of 412 from the fre into the military rules of evidence, is to account for the fact that in our small environments, getting getting private sexual behavior out on the record, into that community, really does have a danger of affecting the victims privacy. And so thats why i think that the balancing test is there and that we do need i think it is important that we provide our practitioners a little more guidance in this area. Thank you, colonel baker. I would agree with that. Twin purposes of the military Justice System is described in the preamble to the manual for courtsmartial. For example are not only justice, but also discipline and good order and discipline within the armed forces. And i think the unique nature of military communities and service may justify the consideration of victim privacy interests, which perhaps in a federal setting or elsewhere, might be constitutionally suspect. But in connection with the psychotherapist privilege, this is an area yes, madam chair. You provided an opportunity for us to ask questions on 412 and i dont want to let that slip. Does any member of the panel have any questions on 412 . Thank you both for your testimony. Mr. Barto, you said that in describing the judicial Decision Making process under m. R. E. 412 that even if the proposed evidence to be offered passes the 412 scrutiny, that then theres still this 403 examination that takes place. Do you know of cases where it passes, the evidence passes scrutiny under 412 but is excluded under 403 and can you comment on that . The military rule of evidence expressly requires military judges to analyze otherwise admissible evidence under military rule of evidence 403. The last sentence, i believe, of military rule of evidence 412c3, i believe, expressly requires that. So it happens 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 gattous, 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, rrowing 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 sexual 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 under 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 that the constitution required it, without explaining how the constitution required it. And when as i understand it, the prosecution tried to resort and it was Victims Counsel in that case, 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 process worked. But i would give colonel baker time to prepare by 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 instance 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. And is a very well respected jurist and i would assume that he did properly apply the rules. So thats kind of the best i can do, sir. I think that mre 412 and mre 513 do properly provide practitio r practitioners the ability to apply it with some clarity as weve discussed in the added prong to the value outweighing the unfair prejudice. 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 kastenburg went up to the court of appeals for armed forces, and we wanted to ensure that there was no question about whether the victim had whether the victims right to be reasonably heard at a 412 or a 513 hearing included the right to be heard through counsel. I guess i dont see why that providing clarity to me is a good thing. Yes, i think it is a good thing. I guess what im pointing out is the fact that you have to provide that clarity is evidence that theres an awful lot of military judges who are not allowing victims to be heard through their 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 an 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 phenomenon 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, governing every federal court, 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 rights 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 constitutional exceptions at article 32 hearings. For both 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 you can 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 now is to determine probable cause. Whether the accused should be courtmartialed for a particular offense. In the first two exceptions, could provide information to the preliminary hearing officer that could make that could make it so that there wouldnt be probable cause. If there was valid evidence that somebody else was the other source of the exception. So really it also 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. And is it different . I mean, do they were there always 412 hearings at article 23s . Or at least were there always supposed to be . There were always supposed to be. Certainly i think that anecdotally i can state they werent always done right. I talked last evening with colonel joyce who runs our victim Legal Counsel organization and her counsel are actively involved in filing theyre not calling them motions, because its at a preliminary hearing, but theyre actively involved in litigating 412 issues at article 32 hearings. So and we are 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 you would not be relevant to just a look at the facts and a prob rabble 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 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 heari