Should I Talk to Potential Witnesses?
You shouldn’t talk to anybody about what is going on, what the allegations against you are, or what happened on a particular day or night. You have the right to remain silent, and there’s a reason that the Constitution of the United States gives you that right: anything you say can be used against you. Even if you think you have the best story to tell, the one that’s going to show that you’re not guilty of an offense, don’t tell it to anyone because you never know how they are going to perceive it, how they are going to retell it to others, or what investigators are going to do with it. Don’t start talking to anyone.
If there are other military members that you feel are on your side, give their names and their contact information to your defense attorney. Your defense attorney can then contact them and speak with them about what they know and what they’re willing to testify about. You should also hand over the names and numbers of any potential character witnesses, people who would say you’re a good person, a good soldier, or a truthful person. Again, your defense attorney will contact those people. The key to this is you should not be talking to anyone except your attorney about what happened.
Should I Dig For Evidence In The Accuser’s Past Sexual History? What If I’ve Heard They Have Made Accusations Against Other Military Members?
In sexual assault cases, it’s quite common for an accuser’s past sexual history to play an important part in your defense at trial. However, any evidence related to the sexual history of an alleged victim must first be presented to a judge in a closed session to determine if the evidence will be allowed at trial.
If you have information on your accuser that you think a jury would want to know, you should provide it to your defense attorney so their team can investigate it for you. It’s perfectly acceptable for you to take note of anything you know about your accuser and provide that information to your defense attorney. You and your attorney should then discuss which information may be relevant at trial, and what evidence too disconnected for admissibility.
A person accused of a crime should never “dig for evidence” themselves. It is the responsibility of your lawyer to take appropriate steps to investigate relevant witnesses, to include the alleged victim. Digging for evidence, however, is not going to lead to good results for you; it will likely lead to the perception that you’re guilty. It can also add additional charges for obstruction of justice. Give whatever information you have to your attorney, and let them do the investigation for you.
Can My Defense Attorney Enter Evidence Into My Sexual Assault Case Regarding The Accuser’s Previous Sexual Assault Accusations?
The rules typically prohibit evidence of an accuser’s past sexual behavior of any sort, but, there are many exceptions to the rule. Any time you intend to present evidence of an alleged victim’s past sexual behavior, the rules require specific notice be given and a closed hearing occur in front of the judge before trial. The judge will then decide if the evidence is admissible at trial.
The requirements regarding past sexual history evidence is contained in Military Rule of Evidence 412. This rule is known as “rape-shield laws” in many states. This rule has been further clarified by dozens of important appellate cases that further explain the application of the rule.
The rule generally prohibits evidence of an alleged sexual assault victim past sexual behavior or predisposition. The rule carves out three exceptions. The exceptions deal with consent, source of injury, or where Constitutionally required.
In the simplest terms, you can only introduce evidence of past sexual behavior if that evidence is directly related to the charged sex crime, such as evidence of consent, a motive to lie, or a different perpetrator. That’s why, in this day and age, it’s important to have a defense attorney who knows the ins and outs of the rules, how to navigate Military Rule of Evidence 412, and how to explain to a judge why a particular piece of evidence involving previous sexual assault accusations is relevant to your case.
Is The Prosecutor Allowed To Use My Past Against Me, Such As Arrests For Minor Charges Or Other Past Sexual Assault Allegations (Even If They Were Proved False)?
The prosecutor’s ability to use past charges or allegations against you depends on the facts of the case. Any prior acts of misconduct or arrests for minor charges will most likely not be relevant in your court-martial. Even if those prior minor activities were admitted, a skilled attorney can convince the jury that it isn’t important to the issue of guilt.
Allowing prior claims of sexual assault to be used against you goes right to the heart of what’s called Military Rule of Evidence 413, which basically says that if you’re standing trial or facing accusations for sexual assault and you have a circumstance where you committed sexual assault in the past, that prior sexual assault may be used to show your propensity to commit the crime. In other words, it can be used to show that you are a person who is likely to sexually assault someone because you’ve done so in the past.
The question of whether or not that allegation was false is going to be critically important in your case. If the prosecutor is trying to admit evidence that you committed an act of sexual assault in the past, they must prove, more or less, that it is true or that reasonable people could see it being true. Therefore, it’s important for your defense team to be able to attack that prior accusation and show that it is, in fact, not true (or false or too old or too tenuous or not supported by evidence) so that it’s not used against you.
Prosecutors are certainly going to be aggressive and they’re going to use every single tool they can to convict you, especially if you have past charges or past convictions. That’s why you need a capable and experienced defense counsel to know how to fight against that.
