Army Court of Criminal Appeals

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.
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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.