United States v. Ellerbrock
2011 CAAF LEXIS 709
| C.A.A.F. | 2011Background
- Appellant was convicted of rape and sodomy by force along with several other offenses under the UCMJ; the convictions on the rape and sodomy by force charges were later addressed on appeal.
- The alleged victim, CL, testified she had consumed alcohol and Xanax the night of the incident, and Appellant was observed having sex with CL by other witnesses.
- The defense sought to introduce evidence that CL had a prior extramarital affair to suggest a motive to lie about consent; the military judge excluded it under M.R.E. 412.
- The Government argued the prior affair was not sufficiently connected, not timely, and prejudicial, and thus not constitutionally required.
- The court of appeals held that CL’s prior affair evidence was constitutionally required, that exclusion was error, and it could not be deemed harmless beyond a reasonable doubt.
- A rehearing could be ordered; the case discusses the constitutionality and balancing under M.R.E. 412, including the 2007 amendments and related jurisprudence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exclusion of CL’s prior affair under M.R.E. 412(b)(1)(C) was constitutionally required | The prior affair is marginally relevant, stale, and would invade privacy; probative value is outweighed by risks | The evidence is highly probative to CL’s credibility and motive; it is essential to the defense and constitutionally required | Yes; exclusion violated constitutionally required evidence rule |
| Whether the evidence was sufficiently relevant, material, and vital to be constitutionally required | Not sufficiently connected to the incident; time-distance and lack of nexus undermine relevance | The prior affair bears directly on credibility and motive to lie about consent | Yes; evidence was relevant, material, and potentially vital |
| Whether the error was harmless beyond a reasonable doubt | Cross-examination and alternative credibility evidence mitigated impact; harmless | There is a reasonable possibility the evidence affected the verdict due to CL’s credibility being central | No; error was not harmless beyond a reasonable doubt |
| Whether the court should reverse only on the rape and sodomy findings or affirm other guilty findings | Only the challenged findings should be reconsidered | Reversal and possible rehearing appropriate for whole case | Reverse as to rape and sodomy; other findings affirmed; rehearing possible |
Key Cases Cited
- Davis v. Alaska, 415 U.S. 308 (1974) (Confrontation right includes cross-examination to impeach credibility)
- Van Arsdall, 475 U.S. 673 (1986) (limits on cross-examination; balancing by trial courts)
- Michigan v. Lucas, 500 U.S. 145 (1991) (right to present relevant testimony may bow to other interests)
- Olden v. Kentucky, 488 U.S. 227 (1988) (confrontation and cross-examination rights)
- Banker, 60 M.J. 216 (2004) (M.R.E. 412 balancing and admissibility framework)
- Gaddis, 70 M.J. 248 (2011) (M.R.E. 412 applicability and constitutional considerations)
- Smith, 68 M.J. 445 (2010) (protecting established relationship as motive to lie about consent)
- Stavely, 33 M.J. 92 (1991) (credibility evidence directly probative of truthfulness)
- Walker, 42 M.J. 67 (1995) (jury instructions can mitigate Rule 403 issues)
- Collier, 67 M.J. 347 (2009) (cross-examination and motive considerations)