UNITED STATES, Appellee 

v. 

Paul R. JASPER, Sergeant 

U.S. Army, Appellant 

No. 13-0013/AR 

Crim. App. No. 20100112 

United States Court of Appeals for the Armed Forces 

Argued April 15, 2013 

Decided June 4, 2013 

RYAN, J., delivered the opinion of the Court, in which BAKER, 

C.J., ERDMANN and STUCKY, JJ., and EFFRON, S.J., joined. 

Counsel 

For Appellant: Major Jacob D. Bashore (argued); Colonel 

Patricia A. Ham and Lieutenant Colonel Jonathan F. Potter (on 

brief); Lieutenant Colonel Imogene M. Jamison. 

For Appellee: Captain T. Campbell Warner (argued); Lieutenant 

Colonel Amber J. Roach and Major Daniel D. Maurer (on brief); 

Major Catherine L. Brantley. 

Military Judge: James Pohl 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Jasper, 13-0013/AR 

2 

Judge RYAN delivered the opinion of the Court. 

Contrary to his pleas, a panel of officers and enlisted 

members sitting as a general court-martial convicted Appellant 

of one specification of indecent conduct, in violation of 

Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 920 (2006), as well as two specifications of committing an 

indecent act with a child, and one specification each of 

knowingly possessing child pornography, knowingly receiving 

child pornography, persuasion and enticement of sexually 

explicit conduct for the purpose of producing visual depictions, 

and obstruction of justice, all in violation of Article 134, 

UCMJ, 10 U.S.C. § 934 (2006). The adjudged sentence provided 

for twenty-three years of confinement, a dishonorable discharge, 

forfeiture of all pay and allowances, and reduction to grade E1. The convening authority approved only so much of the 

sentence that provided for eighteen years of confinement, a 

dishonorable discharge, forfeiture of all pay and allowances, 

and reduction to grade E-1. 

The United States Army Court of Criminal Appeals (ACCA) 

affirmed the findings and sentence as approved by the convening 

authority. United States v. Jasper, No. ARMY 20100112, slip op. 

at 6 (A. Ct. Crim. App. July 13, 2012). We granted Appellant’s 

petition to review the following issues: 
United States v. Jasper, 13-0013/AR 

3 

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE 

ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY 

WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER 

ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST 

APPELLANT. 

II. WHETHER THE ARMY COURT ERRED WHEN IT CREATED A 

CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF 

EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE 

INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE 

DISCLOSURE TO BE DEEMED VOLUNTARY. 

III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL 

ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE 

SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN 

MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO 

NOTICE. 

IV. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL 

MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF 

POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 

134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER 

THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN 

AS THE UCMJ DEFINES CHILD. 

United States v. Jasper, 72 M.J. 83 (C.A.A.F. 2013) (order 

granting review).

We hold that the military judge erred in ruling that the 

clergy privilege protecting statements that the putative child 

victim made to her pastor under Military Rule of Evidence 

(M.R.E.) 503 remained intact when both she and her mother 

affirmatively granted that pastor permission to disclose their 

communications to trial counsel, and he did disclose them. 

Waiver under M.R.E. 510(a) does not require that the privilege 

holder have knowledge that the waived statements would otherwise 

be privileged, or of how the waived statements will be used. 
United States v. Jasper, 13-0013/AR 

4 

This error, which suppressed critical impeachment evidence -- 

the putative child victim’s statement concerning her sexual 

abuse allegations against Appellant that “she had made it all 

up . . . to get attention,” -- materially prejudiced Appellant’s 

ability to defend himself against each of the specifications of 

which he was convicted. See United States v. Collier, 67 M.J. 

347, 355-57 (C.A.A.F. 2009); Article 59(a), UCMJ, 10 U.S.C. 

§ 859(a) (2006). Consequently, we reverse the ACCA’s decision 

and set aside the findings and sentence without reaching the 

remaining issues. 

I. FACTS 

 Appellant’s convictions are all related to alleged sexual 

conduct between Appellant and his stepdaughter, BK, occurring 

between 2006 and 2007, and in 2009. Prior to trial, pursuant to 

Rule for Courts-Martial (R.C.M.) 701(a)(6), trial counsel 

disclosed to the defense that the Government had learned that, 

in 2007, BK had told her pastor that she had made up the earlier 

allegations against Appellant to get attention. 

Defense counsel moved to compel production of Pastor Ron 

Ellyson, who had provided spiritual counseling to BK. At the 

motion hearing, defense counsel conceded that the clergy 

privilege, M.R.E. 503, applied to BK’s conversations with Pastor 

Ellyson, and agreed that the issue was whether BK and her 
United States v. Jasper, 13-0013/AR 

5 

mother, AJ, had waived the privilege under M.R.E. 510(a) when 

they gave Pastor Ellyson permission to disclose the 

communications to trial counsel. 

 At the motion hearing, Pastor Ellyson testified that trial 

counsel had contacted him to discuss obtaining consent from BK 

and AJ to disclose the communications he had with BK. After 

contacting his attorney, Pastor Ellyson called AJ and asked for 

her permission to disclose the communications, but did not 

explain that the communications were protected under the clergy 

privilege or inform her of the possible ramifications of 

disclosure. 

AJ gave Pastor Ellyson permission to disclose the 

communications he had with BK. Although BK was not present when 

AJ spoke with Pastor Ellyson, BK later left Pastor Ellyson a 

voice message in which she also gave him permission to disclose 

their communications. While Pastor Ellyson testified that he 

did not tell AJ who would hear the information, both AJ and BK 

testified that they understood that the disclosure was to be 

made only to trial counsel. 

After receiving permission to disclose the communications 

from AJ and BK, Pastor Ellyson spoke with trial counsel and 

disclosed that BK had told him that “she had made it all up at 

that time to get attention.” Trial counsel subsequently 
United States v. Jasper, 13-0013/AR 

6 

provided this favorable information to the defense and visited 

both AJ and BK to inform them that BK’s communications were 

protected by the clergy privilege and that they could assert the 

privilege to prevent disclosure of BK’s communications to Pastor 

Ellyson. 

At the motion hearing, AJ and BK sought to assert their 

privilege to prevent Pastor Ellyson from disclosing the 

communications he had already disclosed to trial counsel with 

their permission. After hearing AJ and BK’s testimony as to the 

circumstances under which they had given Pastor Ellyson 

permission to disclose the communications to trial counsel, the 

military judge ruled that there had been no waiver and denied 

Appellant’s motion to produce Pastor Ellyson because “any 

testimony that [he] would have would be inadmissible.” 

At trial, the Government principally relied on AJ and BK’s 

testimony to prove that Appellant had committed the charged 

offenses. See infra Part III.C. Moreover, despite his 

knowledge of BK’s exculpatory statement to Pastor Ellyson, trial 

counsel argued in closing that BK was credible, stating that 

“you can’t make [BK’s testimony] up,” “the kinds of details 

[that BK recalled] that if you’re making something up, just 

don’t come out,” and “[i]t went down just the way she explained 

it.” 
United States v. Jasper, 13-0013/AR 

7 

II. ACCA DECISION 

As relevant to our decision, Appellant argued before the 

ACCA that the military judge erred in ruling that the clergy 

privilege protected BK’s statements to Pastor Ellyson from 

disclosure because the privilege had been waived when AJ and BK 

granted Pastor Ellyson permission to disclose the 

communications. In affirming the findings and sentence, the 

ACCA held that the military judge did not abuse his discretion 

in ruling that neither BK nor AJ had waived the privilege under 

M.R.E. 510(a). Jasper, No. ARMY 20100112, slip op. at 4, 6. 

The ACCA relied on the fact that “no one informed AJ nor BK that 

they had a right to maintain the confidentiality of BK’s 

communications with Pastor Ellyson in the court-martial 

process,” and that “AJ and BK both believed that the disclosure 

was limited to the trial counsel.” Id. at 4. In light of these 

facts, the ACCA held that the circumstances “[did] not 

demonstrate a knowing intent to make the information public,” 

and “[n]either AJ nor BK voluntarily consented ‘to disclosure of 

any significant part of the matter or communication under such 

circumstances that it would be inappropriate to allow the claim 

of privilege.’” Id. (quoting M.R.E. 510(a)). 
United States v. Jasper, 13-0013/AR 

8 

III. DISCUSSION 

 A military judge’s decision to admit or exclude evidence is 

reviewed for an abuse of discretion. United States v.

McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000). “To find an abuse 

of discretion requires more than a mere difference of opinion --

the challenged ruling must be arbitrary, fanciful, clearly 

unreasonable, or clearly erroneous.” Id. (internal quotation 

marks and citation omitted). 

The parties agree that, as an initial matter, the clergy 

privilege, M.R.E. 503, applied to BK’s communications with 

Pastor Ellyson. The sole question before us, then, is whether 

the privilege was waived under M.R.E. 510(a). If the privilege 

was waived, the military judge abused his discretion in denying 

Appellant’s motion to produce Pastor Ellyson and excluding BK’s 

statements to him. See United States v. McCollum, 58 M.J. 323, 

327 (C.A.A.F. 2003). 

Contrary to the ACCA’s holding, where, as here, the 

privilege holder, in the absence of factors like coercion or 

trickery, affirmatively consents to the disclosure of the 

privileged communication to a third party, the privilege is 

waived, regardless of whether the privilege holder was aware 

that: (1) the communication was privileged, or (2) consenting 

to the disclosure of the communication waived the privilege. 
United States v. Jasper, 13-0013/AR 

9 

Here, the military judge erred in denying Appellant’s motion to 

produce Pastor Ellyson and excluding BK’s statements to him as 

privileged, and that error was not harmless beyond a reasonable 

doubt. 

A. 

M.R.E. 503(a) provides that: 

A person has a privilege to refuse to disclose and to 

prevent another from disclosing a confidential 

communication by the person to a clergyman . . . if 

such communication is made either as a formal act of 

religion or as a matter of conscience. 

The clergy privilege may be claimed by the person, the 

person’s guardian, or the clergyman on behalf of the person. 

M.R.E. 503(c). Under M.R.E. 510(a), a privilege is waived “if 

the person . . . voluntarily discloses or consents to disclosure 

of any significant part of the matter or communication under 

such circumstances that it would be inappropriate to allow the 

claim of privilege.” Here, there is no question that both BK 

and her guardian, AJ, affirmatively consented to Pastor 

Ellyson’s disclosure of the statements to trial counsel. Under 

such circumstances, and for the reasons below, we think that “it 

would be inappropriate to allow the claim of privilege” to 

prevent defense counsel from using BK’s statements at trial. 

Id.
United States v. Jasper, 13-0013/AR 

10 

“Testimonial exclusionary rules and privileges contravene 

the fundamental principle that the public . . . has a right to 

every man’s evidence.” Trammel v. United States, 445 U.S. 40, 

50 (1980) (internal quotation marks and citation omitted). 

Because privileges “run contrary to a court’s truth-seeking 

function,” they are narrowly construed. United States v. 

Custis, 65 M.J. 366, 369 (C.A.A.F. 2007). While “determining 

waiver of a privilege is an ‘evaluation [that] demands a 

fastidious sifting of the facts and a careful weighing of the 

circumstances,’” id. at 371 n.9 (quoting In re Keeper of the 

Records (XYZ Corp.), 348 F.3d 16, 23 (1st Cir. 2003)), waiver 

has never turned on anything more than the requirement set forth 

in M.R.E. 510(a) that the privilege holder “voluntarily 

discloses or consents to disclosure of any significant part of 

the matter or communication.” See M.R.E. 510(a). 

This Court has not previously considered waiver under 

M.R.E. 510(a) in the clergy privilege context. However, in the 

marital privilege context, we have never conditioned waiver on 

the privilege holder’s awareness of the privilege. See

McElhaney, 54 M.J. at 132 (holding that elliptical references to 

the content of a marital communication voluntarily made to a 

third party was sufficient to waive privilege); McCollum, 58 

M.J. at 339 (“[V]oluntary consent to disclose is given where one 
United States v. Jasper, 13-0013/AR 

11 

spouse either expressly or implicitly authorizes the other to 

share information with a third party.”). 

Moreover, courts have found waiver on nothing more than the 

privilege holder’s failure to take adequate precautions to 

maintain confidentiality, see United States v. Hamilton, 701 

F.3d 404 (4th Cir. 2012) (finding waiver where the defendant put 

confidential communications in work e-mail), and have expressly 

disavowed the notion that, for a waiver to be valid, the 

privilege holder must intend to waive the privilege -- instead, 

whether a waiver is valid turns on whether the disclosure was 

voluntary. See Champion Int’l. Corp. v. Int’l. Paper Co., 486 

F. Supp. 1328, 1332 (N.D. Ga. 1980) (“‘[V]oluntary disclosure, 

regardless of knowledge of the existence of the privilege, 

deprives a subsequent claim of privilege based on 

confidentiality of any significance.’” (citation omitted)); 

State v. Patterson, 294 P.3d 662, 667 (Utah Ct. App. 2013) 

(stating that “it is not necessary . . . to show that a 

[privilege holder] intended to waive the privilege but only that 

she intended to make the disclosure” (quotation marks and 

citation omitted)); State v. Gray, 891 So. 2d 1260 (La. 2005) 

(affirming trial court’s ruling that clergy privilege was 

waived); see also 1 Charles T. McCormick, McCormick on Evidence

§ 93 (7th ed. 2013) (“Finding waiver in situations in which 
United States v. Jasper, 13-0013/AR 

12 

forfeiture of the privilege was not subjectively intended by the 

holder is consistent with the view, expressed by some cases and 

authorities, that the essential function of the privilege is to 

protect a confidence that, once revealed by any means, leaves 

the privilege with no legitimate function to perform.”). 

Finally, unlike the “high standards of proof for the waiver 

of constitutional rights,” Miranda v. Arizona, 384 U.S. 436, 475 

(1966), M.R.E. 510(a) does not require that a waiver of 

privilege be made “knowingly” or “intelligently,” see M.R.E. 

510(a). Cf. M.R.E. 305(g) (waiver of right to counsel “must be 

made freely, knowingly, and intelligently”); Schneckloth v. 

Bustamonte, 412 U.S. 218, 234, 237 (1973) (holding that 

“knowledge of a right to refuse [consent] is not a prerequisite 

of a voluntary consent” and noting that “[a]lmost without 

exception, the requirement of a knowing and intelligent waiver 

has been applied only to those rights which the Constitution 

guarantees to a criminal defendant in order to preserve a fair 

trial”). 

The Government nonetheless insists that the present 

circumstance is not one where it would be “inappropriate to 

allow the claim of privilege” under M.R.E. 510(a) because AJ and 

BK were unaware of the privilege when they granted Pastor 

Ellyson permission to disclose BK’s statements. The effect of 
United States v. Jasper, 13-0013/AR 

13 

this argument, however, is to require a “knowing” and 

“intelligent” waiver where no such language appears in M.R.E. 

510(a). And where, as here, a privilege holder voluntarily 

consents to the disclosure of privileged statements to trial 

counsel without express limitation, we think it would be 

inappropriate to allow a claim of privilege to prevent Appellant 

from using those statements at trial. Cf. R.C.M. 701(a)(6); 

Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the 

suppression by the prosecution of evidence favorable to an 

accused upon request violates due process”). 

B. 

Given that the military judge’s ruling was an abuse of 

discretion, the question remains whether the error implicated 

Appellant’s constitutional rights. See Collier, 67 M.J. at 352. 

While “trial judges retain wide latitude insofar as the 

Confrontation Clause is concerned to impose reasonable limits 

on . . . cross-examination,” Delaware v. Van Arsdall, 475 U.S. 

673, 679 (1986), an accused’s Confrontation Clause rights are 

violated when “‘[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,’” Collier, 67 M.J. at 352 

(quoting Van Arsdall, 475 U.S. at 680). “Whether sufficient 
United States v. Jasper, 13-0013/AR 

14 

cross-examination has been permitted depends on whether the 

witness’s motivation for testifying has already been exposed and 

‘further inquiry . . . would [be] marginally relevant at best 

and potentially misleading.’” Id. (quoting United States v. 

Carruthers, 64 M.J. 340, 344 (C.A.A.F. 2007)). 

There is little question that in cases such as these, the 

credibility of the putative victim is of paramount importance, 

and that a statement by that person that she had made up some or 

all of the allegations to get attention might cause members to 

have a significantly different view of her credibility. 

Here, the military judge’s ruling prevented Appellant from 

using BK’s statements to impeach her credibility through crossexamination or otherwise. U.S. Const. amend. VI (right “to be 

confronted with the witnesses against him”). In addition, the 

military judge’s error prevented Appellant from presenting BK’s 

statements to the panel through Pastor Ellyson’s direct 

testimony, “depriv[ing] [him] of ‘relevant and material, 

and . . . vital’ testimony and evidence,” United States v. 

McAllister, 64 M.J. 248, 252 (C.A.A.F. 2007) (quoting Washington 

v. Texas, 388 U.S. 14, 16 (1967)), and limiting his ability to 

prove his theory of the case. U.S. Const. amend. V (right to 

“due process of law”); U.S. Const. amend. VI (right “to have 

compulsory process for obtaining witnesses in his favor”); see
United States v. Jasper, 13-0013/AR 

15 

Washington, 388 U.S. at 16-19; McAllister, 64 M.J. at 252. 

Given that: (1) BK’s testimony was critical to the 

Government’s case; (2) the erroneous exclusion of BK’s 

exculpatory statements prevented Appellant from “expos[ing] the 

alleged nefarious motivation behind [her] allegations and 

testimony,” see Collier, 67 M.J. at 352; and (3) Appellant’s 

theory of the case was that both his wife, AJ, and his 

stepdaughter, BK, were lying, the military judge’s erroneous 

ruling violated Appellant’s rights to confrontation and due 

process. See Van Arsdall, 475 U.S. at 680; Washington, 388 U.S. 

at 19. 

C. 

“Having found constitutional error, the question remains 

whether that error was harmless beyond a reasonable doubt.” 

Collier, 67 M.J. at 355 (citing Chapman v. California, 386 U.S. 

18, 24 (1967)). “Whether a constitutional error was harmless 

beyond a reasonable doubt is a question of law reviewed de

novo.” United States v. Tearman, 72 M.J. 54, 62 (C.A.A.F. 

2013). Where the error improperly limits an accused’s 

opportunity to present exculpatory evidence through direct 

testimony and cross-examination, “[t]he burden is on the 

Government to show that there is no reasonable possibility that 
United States v. Jasper, 13-0013/AR 

16 

the error contributed to the contested findings of guilty.” 

Collier, 67 M.J. at 355 (quotation marks and citation omitted). 

“To find that the error here warrants relief, we need not 

conclude that Appellant’s defense would have succeeded. Instead 

the inquiry should focus on whether the military judge’s ruling 

‘essentially deprived Appellant of [her] best defense’ that ‘may 

have tipped the credibility balance in Appellant’s favor.’” Id.

at 356 (quoting United States v. Moss, 63 M.J. 233, 239 

(C.A.A.F. 2006)). Where the error violates the accused’s right 

“to be confronted with the witnesses against him,” U.S. Const. 

amend. VI, we apply the balancing test articulated by the 

Supreme Court in Van Arsdall, and weigh: 

the importance of the witness’ testimony in the 

prosecution’s case, whether the testimony was 

cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the 

witness on material points, the extent of crossexamination otherwise permitted, and, of course, the 

overall strength of the prosecution’s case. 

475 U.S. at 684. 

The Government’s case and Appellant’s defense strategy 

hinged on BK’s credibility. BK’s testimony and, as a corollary, 

her credibility were critical to the Government’s case with 

regard to the indecent conduct specification and the indecent 

acts specifications as there was no other witness that testified 
United States v. Jasper, 13-0013/AR 

17 

to seeing the conduct, and no physical evidence supporting her 

testimony. 

Moreover, the Government principally relied on both AJ and 

BK’s testimony to prove the remaining specifications. BK 

testified that, on Wednesday, August 19, 2009, Appellant texted 

her sixty-two times, and asked her to send him nude pictures of 

herself. Using the mirror in her bedroom and her cell phone, BK 

testified that she took the pictures and sent them to Appellant. 

BK next testified that, two days later, Appellant signed 

her out of school at 1:00 p.m., brought her home, and began to 

engage in sexual activity with her. BK recalled the details of 

the sexual activity -- what was done and said -- and stated that 

it had lasted for about twenty minutes. After the sexual 

activity ended, BK testified that Appellant photographed her 

nude body in a variety of poses. 

While BK did not testify directly that Appellant deleted 

the photos from his phone, BK’s testimony that Appellant had 

taken nude photos of her on his cell phone and AJ’s testimony 

that she had seen the photos were offered to prove the necessary 

factual condition precedent for convicting Appellant of 

destroying incriminating evidence by deleting the purported 
United States v. Jasper, 13-0013/AR 

18 

photos from his cell phone.1

 Given that Appellant’s defense was 

that both BK and AJ were lying, and given that no one other than 

AJ testified to seeing the photos that BK said were taken, and 

AJ claimed were deleted, we cannot say that BK’s testimony was 

not important to the Government’s proof of the obstruction of 

justice specification. 

Appellant was otherwise permitted to cross-examine BK and 

other Government witnesses to expose inconsistencies in their 

testimony and in the Government’s case, and did so. 

Nevertheless, we find dispositive the fact that, aside from the 

circumstantial evidence that it presented, the Government’s case 

rested on both AJ and BK’s testimony. See United States v. 

Savala, 70 M.J. 70, 78 (C.A.A.F. 2011) (finding that “[t]he 

strength of the Government’s circumstantial case . . . d[id] not 

overcome” the consideration that “credibility was a critical 

issue in the case”); Collier, 67 M.J. at 356 (“Because [the 

witness] was one of only two witnesses on the influencing 

testimony charge, any additional damage to [her] credibility 

could have been very significant to the outcome of the case.”). 

While the Government introduced some evidence corroborating some 

 

1

 The obstruction of justice specification alleges that Appellant 

“wrongfully endeavor[ed] to impede an investigation . . . by 

deleting indecent digital photographic images of his 

stepdaughter . . . from his cellular telephone.” 
United States v. Jasper, 13-0013/AR 

19 

details of AJ and BK’s testimony,2

 BK was a critical witness to 

each charged offense. 

In turn, Appellant’s defense was that BK and AJ were lying. 

In support of his theory, Appellant called an employee of a 

tattoo shop who testified that he did not see “anything out of 

the ordinary” when BK and Appellant visited the shop only hours 

after the alleged sexual activity and nude photographing had 

occurred. Appellant also highlighted the important evidence 

missing from the Government’s case, including (1) the SIM card 

from BK’s cell phone, which had been ruined after being 

accidentally dropped in the toilet before Criminal Investigation 

Division (CID) collected the phone approximately one month after 

the alleged incident had been reported; and (2) any forensic 

evidence that could have been found either on BK’s clothing or 

the pillows that BK had laid on with Appellant during the sexual 

 

2

 AJ testified that, on August 22, 2009, she discovered multiple 

nude pictures of BK in Appellant’s cell phone. She described 

the different poses in which BK had been photographed and 

recounted that Appellant had chased her outside the house, 

grabbed the cell phone, and locked himself in a bedroom while he 

deleted the photographs. This testimony was partly corroborated 

by: (1) the transcript of AJ’s 911 call, which she made 

immediately after finding the photographs; (2) the testimony of 

TJ -- AJ and Appellant’s daughter, and BK’s half-sister -- who 

witnessed the altercation, but did not see the photographs in 

Appellant’s cell phone or Appellant deleting them; and (3) a 

text message that Appellant sent to AJ the day after the alleged 

altercation, which stated: “I no [sic], but when this mess is 

over it will all be different, is it fair 2 pay the rest of my 

life cuz [sic] I made a mistake, I’m only human.” 
United States v. Jasper, 13-0013/AR 

20 

assault that had allegedly occurred prior to Appellant’s alleged 

nude photographing of BK. 

The military judge’s erroneous ruling prevented defense 

counsel from introducing evidence that BK had stated in 2007 

that she had made up those earlier allegations, which directly 

supported Appellant’s theory of the case. While the 

Government’s case was not weak, it hinged on BK’s credibility. 

The military judge’s ruling prevented Appellant from using a 

critical piece of exculpatory evidence to impeach BK’s 

testimony, which, in turn, could have necessarily impeached AJ’s 

testimony and affected the panel’s findings as to each of the 

remaining specifications. This possibility compels the 

conclusion that defense counsel’s use of BK’s exculpatory 

statement “‘may have tipped the credibility balance in 

Appellant’s favor,’” Collier, 67 M.J. at 357 (quoting Moss, 63 

M.J. at 239), and its erroneous prohibition was not “unimportant 

in relation to everything else the jury considered,” Id.

(citation omitted). See Savala, 70 M.J. at 78 (finding 

prejudice where “the ruling by the military judge enabled the 

prosecution to enhance the credibility of its version while 

handcuffing the defense”). 

Furthermore, despite knowing of BK’s statement that she had 

made the allegations up, “[a]dding insult to injury, the 
United States v. Jasper, 13-0013/AR 

21 

Government exploited [the military judge’s erroneous] 

evidentiary limitation . . . in closing argument,” Collier, 67 

M.J. at 357, arguing that “you can’t make [BK’s testimony] up,” 

“the kinds of details [that BK recalled] that if you’re making 

something up, just don’t come out,” and “[i]t went down just the 

way she explained it.” These comments compounded the harm that 

the military judge’s error created. 

On these facts, the Government has not carried its burden 

to show that the deprivation of key evidence directly related to 

the credibility and motivation of its primary witness was 

harmless beyond a reasonable doubt. 

IV. DECISION 

The decision of the United States Army Court of Criminal 

Appeals is reversed, and the findings and sentence are set 

aside. The record is returned to the Judge Advocate General of 

the Army. A rehearing is authorized.