Someone accused of a sexual offense has the right to present relevant evidence about the accuser, even if it is embarrassing.
In today’s political environment, if you or your loved one is facing charges involving a sexual offense, you may feel that the cards are stacked against them. This is not true. The rules of evidence are what they are. Military Rule of Evidence 412 is one that everyone thinks exists to the protect the alleged victim, however, it also serves to protect the constitutional rights of the accused. M.R.E. 412 does not allow an accused to enter evidence regarding an accuser’s sexual predisposition (for example, sexual lifestyle or flirtatious clothing) or other sexual behavior, UNLESS, the evidence is relevant in showing that the accused was not the source of the offense against the accuser, that the accuser consented to the sexual incident or if excluding the evidence would violate the constitutional rights of the accused. So you see, just because the evidence an accused wishes to present about the accuser is sexual in nature and may be embarrassing, it does not mean that the accused cannot present it. The rights of the accused are protected under M.R.E. 412 as well. Last July, I represented PFC David Lopez before the Army Court of Criminal Appeals (ACCA). There were two females who accused him of committing sexual offenses against them. At his court-martial, the military judge did not allow PFC Lopez to present several pieces of evidence about the females that were sexual in nature stating that the probative value of the evidence was outweighed by the prejudice to these females. I appealed these decisions to the ACCA on behalf of PFC Lopez and won. I argued that the judge erred in the application of the probative v. prejudicial balancing test and that the evidence excluded, while highly embarrassing to the accusers, was relevant in showing that PFC Lopez did not commit the offenses he was accused of committing. Excluding the evidence, in this case, violated the constitutional rights of the accused. ACCA agreed with me and stated that the military judge at the court-martial erred in excluding the pieces of evidence. ACCA set aside the findings and sentence for PFC Lopez. I have a huge amount of experience litigating at the court-martial and appellate level. You need someone by your side with experience if you or your loved one is facing court-martial charges. This is one of the biggest decisions in your life, call now, don’t wait. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.