National Institute of Military Justice
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate

CAAFlog

Army Court of Criminal Appeals

10/25/2023

 
Parler is a case in which the court has set aside sexual assault convictions because of IAC.

The facts suggest that Parler had a solid mistake defense, much of which is captured in the CID interview and in a letter written by the Appellant. The defense however failed to seek admission of the evidence through a motion in limine.
In the interview, however, appellant also talked about his prior sexual experiences with the victim. Among other things, appellant described how in the past "it was kind of games," where the victim would say "no," he would stop and "she would just look at me," and then they would keep going again. Appellant also told the agent because of these past experiences, "I figured she was playing around," and she also did not mean "no" on this occasion. Appellant also described how teasing was part of the foreplay in their 4 or 5 prior sexual encounters. Finally, appellant said he held down the victim's wrist during oral sex because that was what they usually did, and in the past she had given him a "seductive no." None of this evidence (hereinafter referred to as appellant's "unadmitted statements") was before the military judge when he rendered his verdict. 

Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session.

In fact, when certain Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session. Mr. DC doubled down on this "strategy" by claiming he was only speaking to prior instances on the same day as the alleged assault.
. . .
Applied here, appellant's unadmitted statements that his past sexual encounters with the victim were "kind of games" where she would tell him "no" and then question why he stopped, are clearly relevant, material, and favorable to the mistake of fact defense asserted at trial. This is especially true given appellant's letter describing how, after he found the victim smiling in the closet, he "figured now that we were playing - - now we were playing around and [I] just followed along." See United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (holding that there is a "low threshold for relevant evidence" under Mil. R. Evid. 412); United States v. Yepez, ARMY 20210236, 2023 CCA LEXIS 12 at *6 (Army Ct. Crim. App. 11 Jan. 2023) (mem. op.) (finding military judge erred in relying on Mil. R. Evid. 412 to exclude evidence making it more likely for a fact finder to conclude appellanthonestly and reasonably believed the victim consented). 

Having determined that appellant's unadmitted statements were likely admissible under Mil. R. Evid. 412(b )(2) and (b )(3) and constitute "remaining portion" of appellant's admissions to the agent that were introduced against appellant, we turn to counsels' purported reasoning for not seeking their admission either before or during trial. See Mil. R. Evid. 304(h). First, to the extent counselclaimed appellant would not have made a good witness at trial, this purported justification ignores the fact that, because appellant made the unadmitted statements in his already recorded interview, their admissibility was in no way dependent on his testifying at trial, or even in a Mil. R. Evid. 412 hearing.
Sola is a good case on what might be admissible under Mil. R. Evid. 803(4).

Here the prosecution successfully admitted statements of treatment providers under the medical exception.
"This exception to the hearsay rule is premised on the theory that the declarant has an incentive to be truthful because he or she believes that disclosure will enable a medical professional to provide treatment or promote the declarant's own well-being." Cucuzzella, 66 M.J. at 59. 

We emphasize that the Edens test specifically requires that the statement be made by the patient. As noted by our superior court, statements patients make in this context are more likely to be truthful because the patient wants to receive proper medical treatment and care to promote their own well-being. However, we can find no such authority, from our superior court or any other authority from our federal counterparts, that allows statements made by the medical provider to come in under this same medical diagnosis or treatment exception to hearsay. In fact, these cases support the opposite conclusion. See Field v. Trigg County Hosp., Inc., 386 F.3d 729, 736 (6th Cir. 2004) (concluding the hearsay exception under Fed R. Evid. 803(4) only applies to statements made by those seeking or receiving medical care; statements made by the treating physicians are inadmissible hearsay); Bombard v. Fort Wayne Newspapers, 92 F. 3d 560, 564 (7th Cir. 1996) ("Rule 803(4) does not purport to except, nor can it reasonably be interpreted as excepting, statements made by the person providing the medical attention to the patient."); Bulthuis v. Rexall Corp., 789 F. 2d 1315, 1316 (9th Cir. 1985) ("Rule 803(4) applies only to statements made by the patient to the doctor, not the reverse."). As such, we decline to adopt the government's argument that Mil. R. Evid. 803( 4) should be broadened to allow statements from medical professionals about the patient's treatment and diagnosis into evidence. We disagree that the incentive of a patient is the same as that of a medical provider in this context - the notes of medical provider do not offer the same guarantee of truthfulness, but instead offer insight as to whether or not the medical provider was competent in their diagnosis and treatment. 

Comments are closed.
    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
    Picture
    Co-editors:
    Phil Cave
    Brenner Fissell
    Links

    ​SCOTUS
    CAAF

    -Daily Journal
    -2025 Ops
    ​
    ACCA
    AFCCA
    CGCCA
    NMCCA
    JRAP
    JRTP


    UCMJ

    Amendments to UCMJ Since 1950 (2024 ed.)

    Amendments to RCM Since 1984 (2024 ed.)

    Amendments to MRE Since 1984 (2024 ed.)
    ​
    ​
    MCM 2024
    ​
    MCM 2023

    MCM 2019
    MCM 2016
    MCM 2012
    MCM 1995

    ​
    UMCJ History

    Global Reform
    Army Lawyer
    JAG Reporter
    ​
    Army Crim. L. Deskbook

    J. App. Prac. & Pro.

    Dockets

    Air Force

    Art. 32.
    Trial.

    Army

    Art. 32.
    Trial.

    Coast Guard

    Art. 32.
    Trial.
    ​"Records."

    Navy-Marine Corps

    Art. 32.
    Trial.
    "Records."

    Archives

    June 2025
    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022

    Categories

    All
    ByTheNumbers
    Case2Watch
    CrimLaw
    Evidence
    Fed. Cts.
    Habeas Cases
    IHL/LOAC
    Legislation
    MilJust Transparency
    NewsOWeird
    Opinions ACCA
    Opinions-ACCA
    Opinions AFCCA
    Opinions CAAF
    Opinions CGCCA
    Opinions NMCCA
    Readings
    Sentenciing
    Sex Off. Reg.
    Sexual Assault
    Supreme Court
    Unanimous Verdicts

    RSS Feed

Proudly powered by Weebly