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

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

3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18

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

19

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

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

21

“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.
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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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.