United States v. Ellerbrock
2011 WL 3862569, 70 M.J. 314, 2011 CAAF LEXIS 709 (2011)
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Rule of Law:
Under Military Rule of Evidence 412, evidence of a sexual assault complainant's prior sexual conduct must be admitted when it is relevant, material, and its probative value in showing a motive to fabricate outweighs the dangers of unfair prejudice. Excluding such evidence may violate an accused's Sixth Amendment right to confrontation, particularly when the complainant's credibility is the central issue in the case.
Facts:
- The alleged victim, CL, was married and had a three-month extramarital affair approximately two and a half years before the incident in question.
- After CL confessed the prior affair to her husband, he became angry and kicked down the door of her former paramour.
- While her husband was deployed, CL spent an evening at her home drinking gin, hard lemonades, and taking Xanax and Effexor with friends, including Appellant Ellerbrock.
- After some friends, SPC Jackson and Ms. Vantrease, left to go to a store, Ellerbrock and CL were left alone in the apartment for approximately thirty minutes.
- When the friends returned, they discovered Ellerbrock having sex with CL.
- Witness accounts of CL's state of consciousness at the time of the sexual encounter varied significantly, from being 'slightly intoxicated' to 'passed out' or 'pre-comatose'.
- The morning after the incident, CL told SPC Jackson, 'I can’t believe I did that' and 'I fe[el] horrible,' referring to the sexual encounter with Ellerbrock, before later alleging it was rape.
Procedural Posture:
- Appellant Ellerbrock was charged with rape and forcible sodomy, among other offenses, in a military court-martial (trial court).
- At trial, the defense moved under M.R.E. 412 to introduce evidence of the complainant's prior extramarital affair to show a motive to fabricate.
- The military judge denied the motion, ruling the evidence inadmissible under M.R.E. 412 and M.R.E. 403.
- A military panel found Ellerbrock guilty of rape and forcible sodomy, contrary to his pleas.
- Ellerbrock (Appellant) appealed his conviction to the United States Army Court of Criminal Appeals (intermediate appellate court).
- The Army Court of Criminal Appeals affirmed the trial court's conviction and sentence.
- The United States Court of Appeals for the Armed Forces (highest military court) granted review of the case.
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Issue:
Does a military judge's exclusion of evidence of a rape complainant's prior extramarital affair under M.R.E. 412 violate an accused's Sixth Amendment right to confrontation when the evidence is offered to show the complainant had a motive to fabricate the rape allegation to protect her marriage?
Opinions:
Majority - Judge Stucky
Yes, excluding evidence of the complainant's prior extramarital affair violated the accused's Sixth Amendment right to confrontation. The evidence was constitutionally required because it was relevant and material to show CL had a motive to fabricate the rape allegation to protect her marriage. The court reasoned that a second affair could be more damaging than a first, especially given her husband's prior 'hot tempered' reaction. In a case where CL's credibility was crucial due to conflicting witness testimony about her level of impairment, the evidence's high probative value outweighed any M.R.E. 403 concerns about prejudice, waste of time, or confusion of the issues. The error was not harmless beyond a reasonable doubt because the prosecution's case was not overwhelming and the excluded evidence could have given the jury a 'significantly different impression' of CL's credibility.
Dissenting - Judge Baker
No, the military judge did not abuse her discretion by excluding the evidence. The evidence had low probative value and raised significant M.R.E. 412 concerns because the defense failed to show a direct evidentiary nexus between the prior affair and a motive to fabricate in this specific case. The defense's theory rested on a general 'common sense' presumption about human behavior—that a person who had an affair is more likely to lie about a later sexual encounter—which is the type of propensity argument M.R.E. 412 is designed to prevent. The circumstances of the prior affair (an ongoing relationship) and the incident with Ellerbrock (a one-night encounter with a stranger) were completely different, and there was no evidence the marriage was in jeopardy.
Dissenting - Judge Ryan
No, the military judge's limitation on cross-examination was not an abuse of discretion. The evidence of the prior affair was only marginally relevant, and its exclusion did not violate the Confrontation Clause because the jury already had sufficient information to appraise the complainant's motives and bias. The defense was permitted to, and did, argue that CL had a motive to fabricate based on the self-evident fact that she was married and her husband's close friend had witnessed the event. The excluded evidence would have merely embellished a motive that was already clear to the jury, and trial judges have wide latitude to exclude evidence that is cumulative or marginally relevant.
Analysis:
This decision clarifies the scope of the 'constitutionally required' exception to M.R.E. 412, the military's rape shield rule. It establishes that evidence of a complainant's prior affair can be essential to the defense when offered to show a specific motive to fabricate, especially where the complainant's credibility is the linchpin of the prosecution's case. The ruling emphasizes a functional, fact-specific balancing test, signaling that trial judges cannot reflexively exclude such evidence based on staleness or general privacy concerns alone. This precedent may lead to more successful defense challenges to the exclusion of victims' sexual history evidence in future military sexual assault cases where consent is the primary issue.
