                          UNITED STATES, Appellee

                                         v.

                        Troy D. GADDIS, Sergeant
                          U.S. Army, Appellant

                                  No. 10-0512

                         Crim. App. No. 20080150

       United States Court of Appeals for the Armed Forces

                         Argued January 25, 2011

                         Decided August 10, 2011

RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. EFFRON, C.J., filed a separate opinion
concurring in part and in the result, in which BAKER, J.,
joined.

                                     Counsel

For Appellant: Lieutenant Colonel D. Linden Barber (argued);
Colonel Mark Tellitocci and Captain A. Jason Nef (on brief);
Lieutenant Colonel Jonathan F. Potter, Major Grace M. Gallagher,
and Major Laura R. Kesler.

For Appellee: Captain Christopher B. Witwer (argued); Major
Christopher B. Burgess, Major LaJohnne A. White, and Major Amber
J. Williams (on brief).

Military Judges:    Patrick J. Parrish and Tara A. Osborn



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gaddis, No. 10-0512/AR


     Judge RYAN delivered the opinion of the Court.

     A panel of officer and enlisted members sitting as a

general court-martial convicted Appellant, contrary to his

pleas, of one specification of sodomy with a child under the age

of twelve and four specifications of indecent acts with a child,

in violation of Articles 125 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2006).    The adjudged and

approved sentence consists of a dishonorable discharge,

confinement for eight years, forfeiture of all pay and

allowances, and reduction to the grade of E-1.

     The United States Army Court of Criminal Appeals (CCA)

dismissed one specification of indecent acts with a child, but

affirmed the other findings.   United States v. Gaddis, No. ARMY

20080150, 2010 CCA LEXIS 39, at *2-*3, 2010 WL 3613889, at *1

(A. Ct. Crim. App. Mar. 31, 2010).   After reassessing the

sentence in light of the dismissal, the CCA affirmed the

approved sentence.   Id. at *3, 2010 WL 3613889, at *1.

     We granted review of the following issues:

     I.    WHETHER THE MILITARY JUDGE ERRED BY DENYING
           APPELLANT THE OPPORTUNITY TO PRESENT EVIDENCE
           THAT HIS ACCUSER HAD A MOTIVE TO FABRICATE THE
           ALLEGATIONS AGAINST HIM TO HIDE THE ACCUSER’S
           SEXUAL ACTIVITY WITH OTHERS FROM THE ACCUSER’S
           MOTHER.

     II.   WHETHER THE BALANCING TEST, AS ARTICULATED IN MRE
           412(c)(3) AND UNITED STATES v. BANKER, 60 M.J.
           216 (C.A.A.F. 2004), IS CONSTITUTIONAL.



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United States v. Gaddis, No. 10-0512/AR


       We hold that the balancing test in Military Rule of

Evidence (M.R.E.) 412(c)(3) is not facially unconstitutional.

However, its current iteration -- which purports to balance the

“alleged victim’s privacy” against the probative value of the

evidence -- is needlessly confusing and could lead a military

judge to exclude constitutionally required evidence.      The

“alleged victim’s privacy” interests cannot preclude the

admission of evidence “the exclusion of which would violate the

constitutional rights of the accused.”       See M.R.E. 412(b)(1)(C).

We interpret M.R.E. 412 to preclude the exclusion of any

constitutionally required evidence.    We further conclude that

the military judge did not err in limiting cross-examination of

the alleged victim, and the rule was not unconstitutional as

applied.    The decision of the Army Court of Criminal Appeals is

affirmed.

                           I.   Background

       At trial, the Government presented testimony that Appellant

committed sodomy and other indecent acts with his minor

stepdaughter, TE, on multiple occasions.      TE alleged that

Appellant sexually assaulted her more than ten times, including

several incidents in 2004-2005, when she was ten or eleven years

old.   Appellant and TE’s mother divorced in 2006.     TE was

fourteen years old at the time of Appellant’s court-martial, in

February 2008.


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United States v. Gaddis, No. 10-0512/AR


     In 2006, TE first reported the alleged sexual assaults to

her friend, MG.   Appellant and TE’s mother were separated at the

time, and TE was living with MG’s family.   TE made the

allegations after learning that her mother expected her to get a

medical examination.   TE testified that the physical was

required for her to try out for the cheerleading team at her new

school, but that she did not want the examination because it

would show that she had been raped by Appellant.

     The defense sought to present evidence and argument at

trial that TE “believed that her mother was going to have her

examined medically based on reports and e-mails implying that

[TE] was sexually active.”   TE allegedly expressed concern to MG

that the physical would reveal if TE was sexually active, and

that she thought her mother wanted her to be examined after

seeing an e-mail containing a rumor that TE was sexually active.

     The Government argued that evidence of alleged sexual

activity was inadmissible under the general rule of M.R.E. 412,

which excludes evidence of a victim’s prior sexual conduct.

Defense counsel countered that the evidence was admissible under

the M.R.E. 412(b)(1)(C) exception for constitutionally required

evidence, arguing that Appellant “has the right to present a

defense, and part of that right is to cross-examine and confront

witnesses if they have bias, prejudice, or motive to

misrepresent.”    The defense argued that “[t]he proffered


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United States v. Gaddis, No. 10-0512/AR


evidence reveals [TE]’s motive to fabricate the allegations

against [Appellant] to hide acts of consensual sexual activity

from her mother.”   Defense counsel maintained that this evidence

-- which “concerns an e-mail account and rumors of sexual

activity” -- was not offered “to prove the veracity of the e-

mails or the rumors about [TE],” but rather to impeach TE’s

credibility.   The Government responded that “in order for the

defense to really have a motive to fabricate here, they need to

show that some sexual activity occurred,” making TE afraid to go

to the doctor.

     In ruling on the admissibility of this evidence, the

military judge noted that the defense wants “to use the evidence

solely for the impeachment purposes of the victim” and “conceded

that they will not use the substantive evidence of the e-mails,

therefore, references to whether or not there was a pregnancy or

past sexual activity with a specific person.”   The military

judge continued:

          I will allow the defense to use the evidence, for
     impeachment purposes only within the following
     parameters:

          You will not refer, Defense Counsel, to the prior
     sexual activity of the victim or the fact that the e-
     mails contained rumors of prior sexual activity. That
     would also confuse the panel. You may, however, refer
     to the mother’s discovery of e-mails generically, and
     based upon those e-mails, the victim’s mother wanted
     to take the victim to a gynecologist and that the
     alleged victim then made the allegations against the
     accused shortly thereafter. But you may not refer to


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United States v. Gaddis, No. 10-0512/AR


     the contents of the e-mails substantively or describe
     them as e-mails relating to sexual activity. Of
     course, both parties may argue permissible inferences
     from this evidence.

     On appeal, Appellant argues that this ruling deprived him

“of his opportunity to present a meaningful defense illuminating

[TE]’s motive to fabricate the allegations.”       Further, Appellant

asserts that M.R.E. 412(c)(3) is unconstitutional on its face

and as applied because it permits a military judge to exclude

evidence that is otherwise constitutionally required.

                             II.   M.R.E. 412

     Under M.R.E. 412, a rule of exclusion, “[e]vidence offered

to prove that any alleged victim engaged in other sexual

behavior” is “not admissible in any proceeding involving an

alleged sexual offense except as provided in subdivisions (b)

and (c).”   M.R.E. 412(a).    Subdivision (b) provides three

exceptions to this general rule of exclusion.       M.R.E. 412(b).

The third of these exceptions -- the “constitutionally required

exception,” which is the only exception implicated here --

permits the admission of “evidence the exclusion of which would

violate the constitutional rights of the accused.”       M.R.E.

412(b)(1)(C).   Subdivision (c) provides the procedure to

determine the admissibility of evidence offered under the three

exceptions contained in subdivision (b).        M.R.E. 412(c).   This




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United States v. Gaddis, No. 10-0512/AR


procedure includes the “M.R.E. 412 balancing test,” which

requires that:

     If the military judge determines . . . that the
     evidence that the accused seeks to offer is relevant
     for a purpose under subsection (b) and that the
     probative value of such evidence outweighs the danger
     of unfair prejudice to the alleged victim’s privacy,
     such evidence shall be admissible under this rule to
     the extent an order made by the military judge
     specifies evidence that may be offered and areas with
     respect to which the alleged victim may be examined or
     cross-examined. Such evidence is still subject to
     challenge under Mil. R. Evid. 403.

M.R.E. 412(c)(3).

              III.   Constitutionally Required Evidence

     “[T]he right to present relevant testimony is not without

limitation.   The right may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial

process.”   Rock v. Arkansas, 483 U.S. 44, 55 (1987) (citation

and quotation marks omitted); see also Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986); Chambers v. Mississippi, 410 U.S. 284,

302-03 (1973); Washington v. Texas, 388 U.S. 14, 23 (1967).

Thus, whether evidence is constitutionally required -- so as to

meet the M.R.E. 412(b)(1)(C) exception to M.R.E. 412’s general

prohibition of sexual behavior or predisposition evidence --

demands the ordinary contextual inquiry and balancing of

countervailing interests, e.g., probative value and the right to

expose a witness’s motivation in testifying versus the danger of

“harassment, prejudice, confusion of the issues, the witness’


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United States v. Gaddis, No. 10-0512/AR


safety, or [evidence] that is repetitive or only marginally

relevant.”   Van Arsdall, 475 U.S. at 679.    This balance is

bounded on the one hand by the broad discretion of trial judges

and rulemakers’ “broad latitude under the Constitution to

establish rules excluding evidence from criminal trials,” United

States v. Scheffer, 523 U.S. 303, 308 (1998), and on the other

by the Constitution’s guarantee of “a meaningful opportunity to

present a complete defense.”   Holmes v. South Carolina, 547 U.S

319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690

(1986)) (quotation marks omitted).

     M.R.E. 412 is intended to “shield victims of sexual

assaults from the often embarrassing and degrading cross-

examination and evidence presentations common to [sexual offense

prosecutions].”   Manual for Courts-Martial, United States,

Analysis of the Military Rules of Evidence app. 22 at A22-35

(2008 ed.) [hereinafter Drafters’ Analysis].    There is no

question that without the privacy language in the balancing

test, M.R.E. 412 is a reasonable restriction on the

admissibility of evidence that may be minimally relevant, but

also carries a high risk of harassment, confusing the issues,

and discouraging reports of sexual assault.    See, e.g., id.

(stating that the rule replaced by M.R.E. 412 had often yielded

“evidence of at best minimal probative value with great

potential for distraction and incidentally discourage[d] both


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United States v. Gaddis, No. 10-0512/AR


the reporting and prosecution of many sexual assaults”); see

also United States v. Banker, 60 M.J. 216, 219 (C.A.A.F. 2004)

(noting that M.R.E. 412 was intended to encourage victim

cooperation in courts-martial and to prevent embarrassment,

invasion of privacy, and the infusion of sexual innuendo into

the factfinding process); cf. also United States v. Culver, 598

F.3d 740, 749-50 (11th Cir. 2010) (concluding that the exclusion

of the victim’s prior sexual history under Fed. R. Evid. 412 was

a reasonable limitation when the evidence “would have confused

the jury and harassed [the victim]” and was “marginally relevant

at best”); United States v. Papakee, 573 F.3d 569, 573 (8th Cir.

2009) (“[Fed. R. Evid.] 412 serves important purposes of

preventing harassment or embarrassment of sexual abuse victims,

and the proffered evidence was of little or no probative

value”).

     Those purposes are proportionately served by the

general rule of exclusion in M.R.E. 412(a), as well as the

requirement in an earlier iteration of the rule that

evidence must be excluded unless “the probative value of

such evidence outweighs the danger of unfair prejudice,”

M.R.E. 412(c)(3) (2005 ed.).   But M.R.E. 412(b)(1) was also

intended to preserve the “fundamental right of the defense

under the Fifth Amendment . . . to present relevant defense

evidence by admitting evidence that is ‘constitutionally


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United States v. Gaddis, No. 10-0512/AR


required to be admitted.’”   Drafters’ Analysis app. 22 at

A22-35; see also Banker, 60 M.J. at 219 (noting that M.R.E.

412 was also intended to “preserv[e] the constitutional

rights of the accused to present a defense”); United States

v. Dorsey, 16 M.J. 1, 5 (C.M.A. 1983) (noting that the

legislative history of M.R.E. 412 “makes clear the

drafters’ intention that this rule should not be applied in

derogation of a criminal accused’s constitutional rights”).

     Appellant argues that the M.R.E. 412 balancing test is

facially unconstitutional because it presumes the exclusion

of evidence that is constitutionally required under the

Sixth Amendment right of confrontation and the Fifth

Amendment right to a fair trial.     Under Appellant’s reading

of the rule, a military judge may first conclude that

evidence is constitutionally required under the Fifth or

Sixth Amendments, but then nonetheless apply the M.R.E.

412(c)(3) balancing test to exclude the evidence if its

probative value does not outweigh the danger of unfair

prejudice to the alleged victim’s privacy.    We decline to

adopt such an interpretation.   Although Congress has

authorized the President to prescribe the rules of evidence

for courts-martial, Article 36, UCMJ, 10 U.S.C. § 836

(2006), M.R.E. 412 cannot limit the introduction of

evidence that is required to be admitted by the


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United States v. Gaddis, No. 10-0512/AR


Constitution.      See, e.g., Dickerson v. United States, 530

U.S. 428, 437, 444 (2000) (“Congress may not legislatively

supersede our decisions interpreting and applying the

Constitution.”); Fed. R. Evid. 412 advisory committee’s

note (“The United States Supreme Court has recognized that

in various circumstances a defendant may have a right to

introduce evidence otherwise precluded by an evidence rule

under the Confrontation Clause.” (citing Olden v. Kentucky,

488 U.S. 227 (1988))).

             IV.    The M.R.E. 412(c)(3) “Balancing Test”

     The M.R.E. 412(c)(3) “balancing test” as currently drafted

in response to this Court’s decision in Banker is anything but

simple to understand or apply, but it is not facially

unconstitutional.     There is no question that even considering

the privacy interest of the victim will yield a constitutionally

valid result (1) when applied to evidence that is both

constitutionally required and whose probative value outweighs

the danger of unfair prejudice, as well as (2) when applied to

evidence that is not constitutionally required and whose

probative value does not outweigh the danger of unfair

prejudice.   The test would only be unconstitutional in

circumstances under which a military judge excluded evidence,

the exclusion of which would violate the constitutional rights

of the accused, because its probative value did not outweigh the


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United States v. Gaddis, No. 10-0512/AR


danger of unfair prejudice to the alleged victim’s privacy.     In

those circumstances, the test would be unconstitutional as

applied.

     Furthermore, rape-shield statutes like M.R.E. 412 do not

violate an accused’s right to present a defense unless they are

“arbitrary” or “disproportionate to the purposes they are

designed to serve.”   See Scheffer, 523 U.S. at 308 (citation and

quotation marks omitted).   M.R.E. 412 is a “rape-shield” law

intended “to shield victims of sexual assaults from the often

embarrassing and degrading cross-examination and evidence

presentations common to prosecutions of such offenses.”

Drafters’ Analysis app. 22 at A22-35.   The M.R.E. 412 balancing

test is neither arbitrary nor disproportionate to this purpose.

Therefore, the test is not facially unconstitutional.

     Nonetheless, because of the confusing structure of M.R.E.

412, the test has the potential to lead military judges to

exclude constitutionally required evidence merely because its

probative value does not outweigh the danger of prejudice to the

alleged victim’s privacy, which would violate the Constitution.

See Dickerson, 530 U.S. at 437, 444.    And the test is a problem

of our own devise, since it was enacted in response to this

Court’s decision in Banker.1


1
  The 2007 amendment to M.R.E. 412 “clarifies . . . that in
conducting the balancing test, the inquiry is whether the

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United States v. Gaddis, No. 10-0512/AR


     Rather than applying the principles developed in other

contexts by the Supreme Court and this Court to the question

whether evidence was constitutionally required under the old

M.R.E. 412, we held in Banker that “prejudice to the victim’s

legitimate privacy interests” was part of the constitutional

analysis.   60 M.J. at 223 (“[W]hen balancing the probative value

of the evidence against the danger of unfair prejudice under

M.R.E. 412, the military judge must consider not only the M.R.E.

403 factors such as confusion of the issues, misleading the

members, undue delay, waste of time, [and] needless presentation

of cumulative evidence, but also prejudice to the victim’s

legitimate privacy interests.” (citing Sanchez, 44 M.J. at




probative value of the evidence outweighs the danger of unfair
prejudice to the victim’s privacy.” Drafters’ Analysis app. 22
at A22-36 (emphasis added). This change “highlight[ed] current
practice.” Id. (citing Banker, 60 M.J. at 223; United States v.
Sanchez, 44 M.J. 174, 178 (C.A.A.F. 1996)). However, this
problematic change was entirely unnecessary. Military judges
retain wide latitude to determine the admissibility of evidence
-- a determination that includes weighing the evidence’s
probative value against “certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the
jury.” Holmes, 547 U.S. at 326. Applied to the prior version
of M.R.E. 412, this latitude encompassed the requirement that
the proponent of the evidence demonstrate that the probative
value of the evidence outweigh the factors militating against
its admission. M.R.E. 412(c)(3) (2005 ed.) (“If the military
judge determines . . . that the evidence that the accused seeks
to offer is relevant and that the probative value of such
evidence outweighs the danger of unfair prejudice, such evidence
shall be admissible . . . .”). That test was eminently workable
and suffered from no risk of violating either the Constitution
or M.R.E. 412 itself.

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United States v. Gaddis, No. 10-0512/AR


178)).2   This, in turn, was based on our erroneous assumption

that “unfair prejudice” in the context of former M.R.E.

412(c)(3) meant something different than “unfair prejudice” as

the term is generally used under the rules of evidence.    This

was unfounded error; as we explained in United States v.

Collier, 67 M.J. 347, 354 (C.A.A.F. 2009):

     the term “unfair prejudice” in the context of M.R.E.
     403 “speaks to the capacity of some concededly
     relevant evidence to lure the factfinder into
     declaring guilt on a ground different from proof
     specific to the offense charged.” Old Chief v. United
     States, 519 U.S. 172, 180, 117 S. Ct. 644, 136 L. Ed.
     2d 574 (1997) (analyzing the purpose behind Fed. R.
     Evid. 403, which is identical to M.R.E. 403) (emphasis
     added); see also Fed. R. Evid. 403 advisory
     committee’s note (“‘Unfair prejudice’ within [Fed. R.
     Evid. 403] means an undue tendency to suggest decision
     on an improper basis, commonly, though not

2
  The current version of M.R.E. 412 (including the addition of
the “alleged victim’s privacy” language, following Banker) was
released on September 28, 2007, and became effective on October
1, 2007. Exec. Order No. 13,447, 72 Fed. Reg. 56, 179 (Sept.
28, 2007). Appellant was arraigned on September 24, 2007. The
Government’s motion in limine to exclude the contested evidence
was dated October 19, 2007, and the military judge ruled on the
contested evidence on February 12, 2008. By executive order, a
trial in which the arraignment occurred prior to the new rule’s
effective date “may” proceed as if the amendments had not been
prescribed. Exec. Order No. 13,447, 72 Fed. Reg. 56, 179 (Sept.
28, 2007). The military judge did not make explicit whether she
applied the old text or the new text of the rule. Therefore,
the military judge may or may not have applied the current text
of M.R.E. 412. However, Banker was decided on August 23, 2004,
and Banker held that when conducting the M.R.E. 412 balancing
test, the military judge must consider prejudice to the victim’s
legitimate privacy interests. Banker, 60 M.J. at 223. We thus
presume that the military judge considered the victim’s privacy
interests pursuant to the law of Banker, which was in effect at
the time of the court-martial. See United States v. Raya, 45
M.J. 251, 253 (C.A.A.F. 1996).

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United States v. Gaddis, No. 10-0512/AR


     necessarily, an emotional one.”). M.R.E. 403
     addresses prejudice to the integrity of the trial
     process, not prejudice to a particular party or
     witness.

     Although Banker does not say so, its unsupported assumption

that unfair prejudice meant something different in the context

of former M.R.E. 412(c)(3) appears based on that portion of the

federal analogue, Fed. R. Evid. 412, that applies to civil

cases.   See Fed. R. Evid. 412(b)(2) (“In a civil case, evidence

offered to prove the sexual behavior or sexual predisposition of

any alleged victim is admissible if it is otherwise admissible

under these rules and its probative value substantially

outweighs the danger of harm to any victim and of unfair

prejudice to any party.”).3

     Of course, the constitutional interests of a civil

defendant and a criminal defendant are distinct.   See, e.g.,

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 384 (2004)

(noting that “the right to production of relevant evidence in

civil proceedings does not have the same ‘constitutional

dimensions’” as it does in the criminal context (quoting United

3
  Prior to the 1994 amendments to the federal rule, Fed. R. Evid.
412 -- which was at the time nearly identical to the military
rule -- contained a balancing test that was applicable to
criminal prosecutions. The military rule retained that
language. Under the current federal rule, none of the three
exceptions for criminal cases -- including the exception for
constitutionally required evidence -- is subject to a balancing
test. Fed. R. Evid. 412(b)(1). Rather, only in civil cases is
such evidence subject to a balancing test. Fed. R. Evid.
412(b)(2).

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United States v. Gaddis, No. 10-0512/AR


States v. Nixon, 418 U.S. 683, 711 (1974))); BMW of N. Am., Inc.

v. Gore, 517 U.S. 559, 574 n.22 (1996) (observing that “[t]he

strict constitutional safeguards afforded to criminal defendants

are not applicable to civil cases”).   The federal rules

implicitly recognize this distinction by importing the victim’s

privacy interest into the admissibility determination test only

in civil cases.   See Fed. R. Evid. 412(b)(1)-(2).   Nonetheless,

in response to Banker, M.R.E. 412 was amended to import the

civil balancing test, which considers the privacy interests of

the victim as part of the admissibility determination, into

military criminal cases.4

     Yet the rule nowhere provides that if the privacy interest

is high, M.R.E. 412 turns into a rule of absolute privilege:    in

fact, the Drafters’ Analysis states precisely the opposite.

Drafters’ Analysis app. 22 at A22-35 (“[I]t is the Committee’s

intent that the Rule not be interpreted as a rule of absolute

privilege.”).   Therefore, the best reading of the rule is that,


4
  Compare M.R.E. 412(c)(3) (2008 ed.) (balancing whether “the
probative value of such evidence outweighs the danger of unfair
prejudice to the alleged victim’s privacy”) (emphasis added),
with M.R.E. 412(c)(3) (2005 ed.) (providing that if “the
probative value of such evidence outweighs the danger of unfair
prejudice, such evidence shall be admissible . . .”), and Fed.
R. Evid. 412(b)(2) (requiring admission in civil cases only when
the evidence’s “probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any
party”). See also Drafters’ Analysis app. 22 at A22-36 (noting
that the change was made to “highlight current practice” (citing
Banker, 60 M.J. at 223; Sanchez, 44 M.J. at 178)).

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United States v. Gaddis, No. 10-0512/AR


as in its prior iteration, the probative value of the evidence

must be balanced against and outweigh the ordinary

countervailing interests reviewed in making a determination as

to whether evidence is constitutionally required.    See Van

Arsdall, 475 U.S. at 679.    We must also ask whether Appellant’s

constitutional right to cross-examination has been violated.

Cf., e.g., Michigan v. Lucas, 500 U.S. 145, 152-53 (1991)

(noting that a court must address on the facts of the case

whether the exclusion of evidence under a rape-shield statute

violated the defendant’s Sixth Amendment rights); United States

v. Buenaventura, 45 M.J. 72, 79 (C.A.A.F. 1996) (observing that

“[w]hether evidence is constitutionally required to be admitted

is reviewed on a case-by-case basis,” and holding that past

sexual behavior evidence was constitutionally required when it

was probative of the defense theory of mistaken identity)

(quotation marks omitted).

     M.R.E. 412 cannot limit the introduction of evidence

required by the Constitution -- although the text of the rule

seems to permit such a limitation.    And the explanation in

Banker -- suggesting that balancing constitutionally required

evidence against the privacy interest of the victim before

admitting it is necessary to further the purpose of the rule,

see Banker, 60 M.J. at 222-23 -- is simply wrong.    The purposes

of M.R.E. 412 are served by the rule itself, which prohibits all


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United States v. Gaddis, No. 10-0512/AR


evidence of an alleged victim’s sexual behavior or

predisposition unless, for example, it is constitutionally

required.    M.R.E. 412(a)-(b).   If after application of M.R.E.

403 factors the military judge determines that the probative

value of the proffered evidence outweighs the danger of unfair

prejudice, it is admissible no matter how embarrassing it might

be to the alleged victim.

     Likewise, if a military judge determines that the evidence

is not constitutionally required, the military judge must

exclude the evidence under M.R.E. 412 -- regardless of how

minimal the alleged victim’s privacy interest might be --

because it does not fall under an exception to the general rule

of exclusion.     At best the balancing test under M.R.E.

412(c)(3), as currently written, is a nullity with respect to

the constitutionally required exception set out in M.R.E.

412(b)(1)(C); at worst it has the potential to cause military

judges to unconstitutionally exclude evidence that is

constitutionally required or admit evidence that is not.      To a

certainty, though, it has done nothing but add additional layers

of confusion and uncertainty to the application of M.R.E. 412.

            V.   The Application of M.R.E. 412 in This Case

     The defense proffered the contested evidence under the

M.R.E. 412(b)(1)(C) exception for constitutionally required

evidence, arguing that Appellant “has the right to present a


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United States v. Gaddis, No. 10-0512/AR


defense, and part of that right is to cross-examine and confront

witnesses if they have bias, prejudice, or motive to

misrepresent.”    Therefore, we must ask whether the exclusion of

the evidence violated Appellant’s constitutional right to cross-

examination, in light of applicable precedents.

     An accused has a Sixth Amendment right to confront the

witnesses against him.   U.S. Const. amend. VI.   “It is well

settled that ‘the exposure of a witness’[s] motivation in

testifying is a proper and important function of the

constitutionally protected right of cross-examination.’”

Collier, 67 M.J. at 352 (quoting Davis v. Alaska, 415 U.S. 308,

316-17 (1974)).   A limitation on an accused’s presentation of

evidence related to issues such as bias or motive to fabricate

may violate an accused’s right to confront witnesses.    See

Davis, 415 U.S. at 316-17.    However, “trial judges retain wide

latitude . . . to impose reasonable limits on such cross-

examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally

relevant.”   Van Arsdall, 475 U.S. at 679; see also Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (per curiam); United States v.

James, 61 M.J. 132, 136 (C.A.A.F. 2005).

     We must thus ask whether the exclusion of evidence deprived

Appellant of a fair trial or an opportunity for cross-


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United States v. Gaddis, No. 10-0512/AR


examination.   The question, then, is whether “[a] reasonable

jury might have received a significantly different impression of

[the witness]’s credibility had [defense counsel] been permitted

to pursue his proposed line of cross-examination.”      Van Arsdall,

475 U.S. at 680.

     Here, the military judge simply imposed “reasonable limits”

on the cross-examination, see id. at 679, and left open an

“opportunity for effective cross-examination.”      Fensterer, 474

U.S. at 20 (emphasis in original).      In fact, the military judge

did allow the defense to ask TE about the connection between the

e-mails and the physical.   The defense was thus able to present

its theory of TE’s motive to lie to the members, as well as to

argue that case to the members.5      And “once the defendant has

been allowed to expose a witness’s motivation in testifying, it

is of peripheral concern to the Sixth Amendment how much

opportunity defense counsel gets to hammer that point home to

the jury.”   James, 61 M.J. at 136 (citation and quotation marks

omitted).    Moreover, a reasonable panel would not have received

5
  In closing, defense counsel argued that TE’s mother was “not
very happy with her because she saw something on some e-mail
account that led her to ask [TE] if she had had sex and [TE]
said no.” TE “was scared, not of a cheerleading exam as she
tried to say . . . . She was scared because of her mom and
something that was read. That’s what happened.” Defense
counsel concluded, “A little white lie maybe to get out of
trouble with mom suddenly blew up in her face, and she has not
been able to keep the facts straight since then.” Therefore,
the defense established TE’s motive to fabricate, and in fact
placed this issue squarely before the members.

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United States v. Gaddis, No. 10-0512/AR


“a significantly different impression” of TE’s credibility had

Appellant been permitted to cross-examine her regarding the

substance of the e-mails, which only contained unsubstantiated

rumors of sexual activity.   See Van Arsdall, 475 U.S. at 680.

Therefore, the contested evidence was not constitutionally

required, does not qualify for the M.R.E. 412(b)(1)(C)

exception, and was properly excluded under M.R.E. 412.

                         VI.   Conclusion

     For the foregoing reasons, the decision of the United

States Army Court of Criminal Appeals is affirmed.




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United States v. Gaddis, No. 10-0512/AR


     EFFRON, Chief Judge, with whom BAKER, Judge, joins

(concurring in part and in the result):

     I agree with the majority opinion that:   (1) the balancing

test in Military Rule of Evidence (M.R.E.) 412(c)(3) is not

unconstitutional on its face; (2) if exclusion of evidence would

violate the constitutional rights of the accused, the evidence

is admissible under the rule irrespective of the relative

balance between the probative nature of the evidence and the

impact on the alleged victim’s privacy; and (3) the rule was not

applied in an unconstitutional manner in this case.   I write

separately to address the interpretation of M.R.E. 412.



                          I.   THE RULE

      Congress has delegated to the President the authority to

prescribe rules of evidence for courts-martial under Article 36,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836 (2006).

See United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010).

Pursuant to that authority, the President has promulgated M.R.E.

412, entitled “Sex offense cases; relevance of alleged victim’s

sexual behavior or sexual predisposition.”   Subsection (a) of

the rule, entitled “Evidence generally inadmissible” provides a

general limitation on the admission into evidence of an alleged

victim’s sexual behavior or sexual predisposition.
United States v. Gaddis, No. 10-0512/AR


        Subsection (b)(1) of the rule contains the following

exceptions to the general limitation:

             In a proceeding, the following evidence is
             admissible, if otherwise admissible under
             these rules:

                       (A) evidence of specific instances
             of sexual behavior by the alleged victim
             offered to prove that a person other than
             the accused was the source of semen, injury,
             or other physical evidence;

                       (B) evidence of specific instances
             of sexual behavior by the alleged victim
             with respect to the person accused of the
             sexual misconduct offered by the accused to
             prove consent or by the prosecution; and

                       (C) evidence the exclusion of
             which would violate the constitutional
             rights of the accused.


        Subsection (c) of the rule sets forth the procedure to

determine the admissibility of evidence under the exceptions.

Paragraph (c)(1) requires the party seeking to admit such

evidence to offer a motion and sets forth related procedural

requirements.    Paragraph (c)(2) requires the military judge to

conduct a hearing prior to admitting such evidence under the

rule.    Paragraph (c)(3) states:

             If the military judge determines on the
             basis of the hearing described in paragraph
             (2) of this subsection that the evidence
             that the accused seeks to offer is relevant
             for a purpose under subsection (b) and that
             the probative value of such evidence
             outweighs the danger of unfair prejudice to
             the alleged victim’s privacy, such evidence


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United States v. Gaddis, No. 10-0512/AR


          shall be admissible under this rule to the
          extent an order made by the military judge
          specifies evidence that may be offered and
          areas with respect to which the alleged
          victim may be examined or cross-examined.
          Such evidence is still subject to challenge
          under Mil. R. Evid. 403.


                  II.    THE TWO BALANCING TESTS

     M.R.E. 412(c)(3) involves two separate balancing tests.

The first balancing test, set forth in the first sentence of

paragraph (c)(3), expressly refers to a determination as to

whether “the probative value of such evidence outweighs the

danger of unfair prejudice to the alleged victim’s privacy.”

The second balancing test is incorporated by the reference in

the second sentence of paragraph (c)(3) to M.R.E. 403, which

provides that “[a]lthough relevant, evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

members, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

     The two tests are related, but distinct.      The victim’s

privacy interest in the first balancing test under M.R.E.

412(c)(3) is not coextensive with the M.R.E. 403 criteria in the

second balancing test.   As we noted in United States v. Collier,

“M.R.E. 403 addresses prejudice to the integrity of the trial

process, not prejudice to a particular party or witness.”     67



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United States v. Gaddis, No. 10-0512/AR


M.J. 347, 354 (C.A.A.F. 2009).   By contrast, M.R.E. 412(c)(3)

focuses directly on prejudice to the interests of a particular

witness -- the alleged victim -- whose privacy interest may or

may not fall within the M.R.E. 403 criteria, depending on the

circumstances of the case.

     The two balancing tests also involve separate standards.

M.R.E. 403 permits exclusion of evidence based upon a

determination as to whether the probative value “substantially

outweigh[s]” one or more of criteria under the Rule.    M.R.E.

412(c)(3) provides for admissibility (not exclusion) based upon

balancing two specific criteria -- probative value and the

victim’s privacy.



                      III.   INTERPRETATION

     Appellant’s interpretation of M.R.E. 412(c)(3) would permit

a military judge to exclude evidence constitutionally required

to be admitted under the Fifth or Sixth Amendment on the basis

that the rule requires exclusion when a victim’s privacy

interests outweigh the probative value.   In Appellant’s view,

the rule, as so interpreted, would produce an unconstitutional

deprivation of the rights of a defendant to present evidence

under the Constitution.

     Appellant’s interpretation reflects an inference, not the

express terms of the rule. Appellant’s interpretation assumes


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United States v. Gaddis, No. 10-0512/AR


that because the text addresses conditions under which evidence

is admissible, we should infer that the rule necessarily

requires exclusion of all other evidence -- that is, evidence

which fails the balancing test.

     Appellant’s approach presents a plausible, but not a

necessary interpretation of the rule.   The text of paragraph

(c)(3) does not use express words of exclusion or limitation.

The President could have, but did not use a phrase such as

“evidence is inadmissible unless” it meets the balancing test,

or “evidence is admissible only” if it meets the balancing test.

Instead, the President in paragraph (c)(3) set forth a balancing

test which provides that evidence “shall be admissible” under

the test without expressly addressing the admissibility of

evidence outside the balancing test.

     Appellant would interpret paragraph (c)(3) as providing an

exclusive rule of admissibility, precluding the introduction of

evidence that does not meet the balancing test, even if

constitutionally required.   Alternatively, however, paragraph

(c)(3) may be interpreted as a non-exclusive rule, providing for

admissibility of evidence that meets the balancing test, while

permitting evidence that does not meet the test to be addressed

under other provisions of M.R.E. 412(c)(3).

     Interpreting paragraph (c)(3) as the exclusive vehicle for

admissibility, as suggested by Appellant, would create a


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United States v. Gaddis, No. 10-0512/AR


conflict with the admissibility provisions of subparagraph

(b)(1)(C) (providing for admissibility when exclusion “would

violate the constitutional rights of the accused”).   As such,

Appellant’s interpretation would also create a conflict between

the rule and the Constitution.

     The conflict presented by Appellant’s theory, which is not

required by the text of the rule, is unnecessary in this case.

Under the applicable doctrines of statutory interpretation,

which we apply to our review of the Manual for Courts-Martial,

see United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007),

we may read related provisions in harmony, giving meaning to

each provision of the rule, while avoiding constitutional

conflicts.   See 2A Norman J. Singer & J. D. Shambie Singer,

Sutherland Statutes and Statutory Construction §§ 45:11, 78; 46:

5, 213-14; 46:6, 230 (7th ed. 2007). In light of those concepts,

we may choose the alternative reading of the rule, and treat

paragraph (c)(3) as a non-exclusive rule of admissibility.     See

id. § 45:11, 78-83.

     As a non-exclusive rule, paragraph (c)(3) serves a specific

purpose.   The rule expressly requires balancing of the victim’s

privacy interests and the probative value of the evidence as a

factor on the question of admissibility.   Irrespective of

whether such a provision is necessary as a matter of law or

policy, it is well within the President’s authority under


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United States v. Gaddis, No. 10-0512/AR


Article 36, UCMJ, to require such balancing as part of the

admissibility determination.

     Under the rule, the military judge addresses the following

questions:

     (1) Does the evidence involve the alleged victim’s sexual

behavior or sexual predisposition under the general rule of

inadmissibility in subsection (a)?

     (2) If so, is the evidence relevant under paragraph (c)(3)

to one of the three exceptions providing for admissibility under

subsection (b)?

     (3) If relevant, does the evidence meet the balancing test

under paragraph (c)(3)?

     (4) If the evidence meets the balancing test under

paragraph (c)(3), is it nonetheless subject to exclusion under

M.R.E. 403?

     (5) If the evidence does not meet the admissibility test

under paragraph (c)(3), is it nonetheless admissible to protect

the “constitutional rights of the accused” under subparagraph

(b)(1)(C)?    See, e.g., United States v. Banker, 60 M.J. 216, 222

(C.A.A.F. 2004) (discussing the admissibility of evidence that

is “vital” to the defense).




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United States v. Gaddis, No. 10-0512/AR


                       IV.   LAW AND POLICY

     The President has ample authority under Article 36, UCMJ,

to decide whether and how to expressly address the interests of

alleged victims in M.R.E. 412.   In 2007, the President amended

M.R.E. 412 to provide in paragraph (c)(3) for use of a balancing

test that addressed the victim’s interests.      See Manual for

Courts-Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-36 (2008 ed.).      Prior to 2007,

consideration of a victim’s interests was addressed through

judicial interpretation of the prior rule, which did not

expressly provide such a balancing test.      See id.

     In United States v. Sanchez, 44 M.J. 174, 178 (C.A.A.F.

1996), which described M.R.E. 412 as a valid exercise of

Presidential power, we noted that the rule involved “a weighing

of the probative value of the evidence against the interest of

shielding the victim’s privacy.”       Subsequently, in the course of

interpreting M.R.E. 412(c)(3), we noted in Banker, 60 M.J. at

223, that “when balancing the probative value of the evidence .

. . under M.R.E. 412, the military judge must consider not only

the M.R.E. 403 factors . . . , but also prejudice to the

victim’s legitimate privacy interests.”

     The references to the alleged victim’s interests in Sanchez

and Banker reflected our Court’s interpretation of M.R.E. 412 as

promulgated by the President under the authority delegated to


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United States v. Gaddis, No. 10-0512/AR


the President in Article 36, UCMJ.    Neither case held that the

President was obligated to provide expressly for consideration

of the alleged victim’s interests as a matter of law under the

Constitution or the UCMJ.    In that context, these decisions did

not limit the authority of the President to take a different

approach, including consideration of matters particular to

military practice.    Cf. Banker, 60 M.J. at 221 (citing the

analysis that “the application of [M.R.E. 412] has been somewhat

broadened . . . to adapt [it] to military practice” (first set

of brackets in original)).

     In the aftermath of Sanchez and Banker, the President had

at least three options with respect to treatment of an alleged

victim’s interests under the rule:    (1) leave the prior version

of the rule in place, thereby allowing the interests of alleged

victims to be addressed through judicial interpretation rather

than express regulatory language; (2) amend M.R.E. 412 to negate

the Sanchez-Banker interpretative approach by expressly

providing, for example, that the interests of alleged victims be

considered only to the extent required by M.R.E. 403; and (3)

amend the rule to incorporate expressly provisions dealing with

the interests of alleged victims along the lines offered in

Sanchez and Banker.    See generally United States v. Tualla, 52

M.J. 228, 231 (C.A.A.F. 2000) (discussing the authority of the




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United States v. Gaddis, No. 10-0512/AR

President to amend the Manual for Courts-Martial in the

aftermath of judicial decisions).

     The President chose the third option, setting forth a

balancing test that expressly addresses the interests of alleged

victims.   The President remains free to retain that approach or

to amend the rule in any fashion consistent with Article 36,

UCMJ, the balance of the UCMJ, and the Constitution.   The policy

question of whether to address victim interests through the

balancing test in the rule is a matter for the President and

Congress to decide.   Until the rule is changed, it remains in

effect, subject to our obligation to interpret the rule in

accordance with the Constitution and applicable legislation.




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