In re United States v. Johnson, we concluded that the charging decision and the theory of guilt proffered at trial was not a Government bait-and-switch. But at the same time, it is reasonable--if not required--for trial defense counsel to litigate an alcohol-involved case as if it were charged under Article 120(b)(3)(A). Is not the prosecution's evidence the same for either charge and the defenses similar?
So we come to United States v. Kornickey where the charge was under Article 120(b)(2)(A), "sexual assault by bodily harm without consent." And the defense rightly proceeded as if litigating an Article 120(b)(3)(A) charge. Clearly, alcohol was involved, and the evidence gave rise to concerns about the effect of alcohol on the victim's conduct and memory. The defense made many unsuccessful efforts throughout the trial to get expert assistance and witnesses. However, the military judge erred in quite a few ways, which resulted in the conviction being set aside.
Appellant presented evidence at the motion hearing that an expert consultant could, from a review of the case, calculate an approximate BAC for victim which would indicate she was at a level of intoxication consistent with experiencing some form of blackout and the negative impact that could have on the accuracy of victim's memory perception. It was an undisputed fact at the motion hearing, conceded by the government, that victim told CID SAs that she "blacked out" in her interview conducted approximately ten months after the alleged sexual assault.
The defense also moved to compel expert testimony. Yet the MJ ultimately "ruled the requested expert testimony was "irrelevant" in light of the victim's manifestation of non-consent."
In response, the government argued: (1) the charged offense of sexual assault by bodily harm without consent occurred when victim told appellant to stop and he did not, (2) victim remembered everything correctly, and (3) any expert assistance or testimony regarding victim's intoxication was not relevant as the government's charging theory was not based on her incapacitation and the alleged offense occurred while she was awake. During the same argument, the government, however, conceded to the military judge that victim's act of "blacking out [was] relevant .... [and t]he factfinder can hear all of that, but we ask that you not elevate this to an inaccessible scientific level without any nexus to a charged offense."
How would you decide so far?
The military judge denied appellant's motion for reconsideration but conceded "alcohol and its effects will likely play prominently in the presentation of evidence and in the weight the evidence is given by the factfinder." The military judge determined expert assistance was unnecessary to address the effects of alcohol because "lay panel members may draw upon their experience, understanding, and knowledge of the ways of the world to come to a conclusion as to whether [victim's] memory may have been affected by the use of alcohol, and if so, whether that alcohol use creates reasonable doubt in relation to the evidence presented." The military judge reasoned an expert could not contradict victim's testimony because "[a]n expert cannot provide any evidence of a factual nature concerning the events of the evening. Only the witnesses who were present can do that. The impeachment evidence the defense seeks can be obtained through cross-examination of [victim] and the other witnesses who were present."
But then came voir dire.
After group voir dire of the first wave of panel members, appellant again moved the court for reconsideration consultants, citing that seven of eight panel members responded they did not believe a person could potentially consent to sexual activity while experiencing a blackout.
Immediately after individual voir dire of the second wave of panel members, appellant yet again renewed his motion to compel expert consultants, citing that five of the previous eight potential panel members during individual voir dire appeared to misunderstand what a blackout was. The military judge stated that without the victim's testimony it was, at that point, uncertain whether she was, in fact, experiencing a blackout or just using the term colloquially.
In their response the government had argued--shifted to--
The government reiterated their prior argument that the appellant did not need an expert because the government case included no scientific evidence and their lay witness victim was going to testify she woke up to being sexually assaulted and told the appellant to stop.
Did they not then implicate the sleeping theory of prosecution?
During the government's direct examination, victim did not testify that she was experiencing a state of blackout, as she previously told CID Special Agents [SAs], but instead she testified she fell asleep watching a movie on her couch after drinking alcohol. She agreed she had previously told CID SAs that she was experiencing a blackout but remained adamant that actually meant she had fallen asleep. Defense counsel attempted to cross-examine her on her lack of memory for the period of time leading up to the sexual assault on the night of the offense, aswell as her understanding of the impact of alcohol on her memory.
The court does a thorough and useful analysis of expert consultants and witness requests. They point out how the parties and MJ consistently combined the two types of requests and thus confused the two different standards of review for consultants vice witnesses, how the MJ's ruling "which determined appellant engaged in sexual acts with victim after seeing and hearing her clear physical and verbal manifestation of non-consent appears to have accepted full-cloth victim's most favorable version of events, despite defense evidence challenging the validity of her memory and prior inconsistent statements, and ultimately had the effect of predetermining appellant's guilt as a factual basis for denying him expert assistance." The court citied to several other MJ rulings that exhibited an "erroneous application of the law." And, how the MJ seemed ignore the voir dire answers of the prospective members. In their penultimate paragraph,
As the appellant's trial defense counsel adeptly stated, "The government's charging theory is the government's charging theory. But the defense should be allowed to present evidence regarding why that theory doesn't make sense." Instead, the military judge accepted the government's theory of the case and effectively limited the appellant to contesting his guilt only insofar as he did not deviate from the government's theory of the case.
"While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators." U. S. ex rel. Williams v. Twomey, 510 F. 2d 634, 640 (7th Cir.) cert denied sub. nom. Sielaff v. Williams, 423 U.S. 876 (1975). Here is the relevant information from United States v. Bunton.
We find that a finding of fact key to the military judge's denial of the Defense motion to compel the production of Dr. Juliet as an expert witness was clearly erroneous. Specifically, the military judge found:
United States v. Bunton, 82 M.J. 752, 782-83 (N-M Ct. Crim. App. 2022). Also,
Counsel should also be mindful that witnesses may themselves have difficulty assessing with reasonable accuracy whether someone is drunk or not simply by observation. See Steve Rubenzir, Judging Intoxication. 29 Behav. Sci. Law. 116 (2011).
It appears to me that no one at trial understood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. Chief Judge Everett's concurring comments in United States v. Baran, 22 M.J. 265, 270 (1986) are directly applicable to this case:[The victim's] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person's memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten. Not only is it questionable that the Government has met its burden of establishing that the intercourse took place without the victim's consent, but also it would appear that, if she did not consent, [appellant] reasonably believed that she did, and the Government's evidence failed to disprove the mistake-of-fact defense which he asserted.
United States v. Gosney, 1999 CCA LEXIS 420 (A. Ct. Crim. App. February 25, 1999) (memorandum op.) aff’d No. 99-0515, 2000 CAAF LEXIS 692 (C.A.A.F. Jul. 6, 2000).
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.