relatively new phenomenon, both in the state -- so it doesn't surprise me that it's also a new phenomenon and a good one in the military. actually, in the military, you get counsel automatically if you want it, and you don't pay for it. so it's gone beyond most of the programs that exist in the civilian world. i was interested in how article 32's are working now. because i think colonel baker you started to talk a little bit about it. and did you say something about eliminating the constitutional aspect of the rule? i'm interested in that too. and that's two different questions, i recognize. >> i'll start with the second one first, because it's easiest. the proposed -- >> the other way, if you could.

>> the proposal that's currently before -- that's out for public comment from the joint services committee is to specifically exclude the constitution exceptions at article 32 hearings. 412, 513 and 514. so at an article 32 preliminary hearing, the first two exceptions would apply, and the third exception would not. does that answer your question on that issue, ma'am? and you can -- and we can -- the staff can get you a copy of the proposal. it's on the web. >> what would the practical impact be of taking away the third exception? >> the practical impact of taking away the third exception would be the -- kind of the

debate at an article 32 hearing about such things that bill talked about -- >> bias, motive to fabricate prior false allegations, things that typically are raised under the constitutionally required prong would not be deemed relevant at a preliminary hearing, whose only real purpose is now to determine probable cause, whether the accused should be court-martialed for a particular offense. >> in the first two exceptions, they could provide information to the preliminary hearing officer that could make it -- that could make it that there wouldn't be probable cause if there was valid evidence that someone else was the source of the exception. removing that exception also kind of reflects the fundamental change to article 32 hearings, which narrowed the limit and scope of the hearings and have made it so it's not a discovery

tool. your other question, ma'am, was how are 32 hearings -- is the question how is 412 being applied at 32 hearings now? >> yes. were there always 412 hearings at article 32's or at least were there always supposed to be? >> there always were supposed to be. certainly i think that anecdotally i can state they weren't always done right. i talked last evening with colonel joist, who runs our legal counsel organization and her counsel are actively involved in -- they're not calling them motions because it's at a preliminary hearing but they're actively involved in litigating 412 issues at article 32 hearings. so -- and we are -- so we certainly are applying them now i think, frankly better than we have in the past. >> the other change, judge

jones, is that judge advocates are now serving as article 32 officers. a military attorney is now presiding over the preliminary investigation/preliminary hearing, as we transition terminology and purpose. and the presence of an attorney in the room that's sensitive to these issues makes the system better able to protect victim rights while reaching its probable cause determination as well. >> and i think i understand this now, because if you eliminate the constitutional analysis, you're really eliminating those types of evidentiary rulings that you may need to make if it goes to trial or would but you would not be -- but that would not be relevant just to look at the facts in a probable cause determination. is that the idea? >> you may have answered this already. you opened your remarks, colonel, by saying that these two rules of evidence, when the

procedural rules are properly applied, that they work well, words to that effect. are there some repeated issues with regard to the proper application of procedural rules? perhaps they've been addressed by these article 32 changes? >> one of them kind of historically frankly we've not been very good at applying them at article 32 hearings. a lot of it, because of the wide-open nature of an article 32 proceeding that has really focused on discovery and so, with the judge advocate presiding over an article 32 hearing, and a counsel representing the victim, i think that you have a much better chance at an article 32 hearing that the procedures are followed properly.

in a session with the military judge, i think that those have traditionally been done well. are there exceptions, as mr. stone brought up? yes. i can't say we've done it right every time. but i think that in the vast majority of cases court-martials right across the judge, our military judges do a fantastic job of balancing the interests of the victim against the interests of the accused. >> if i could gently tug the presentation toward the military rule of evidence 513 as well and the psychotherapist privilege, i would candidly tell you that this is a challenging area for investigators, for counsel and for military judges. and this is, given the supreme court's decision in jaffe v. redmon several years ago, there is no federal rule of evidence, for example, describing a

psychotherapist privilege, so this is a relatively new rule. and proper sensitivity to the psychological counseling records of victims is something that everybody is learning as we move forward from investigators who in the past might have just gone to the hospital and obtained those records, from counsel who might review them before submitting them to the military judge, to the judge, who didn't have guidance in the past but now has a relatively strictly constructed rule of evidence. all three of the participants in the process are learning. and it's getting better. but it places a premium on the ability of military judges to monitor the progress of that learning and to intervene with protective orders when appropriate to safeguard victim privacy concerning her psychological or mental health counseling records. for example, much like judge

baker, after this rule was enacted, i found myself, as a trial judge, reviewing the health counseling records of a child victim of sexual abuse. and not only was it psychology it was pediatric psychology. not only was it pediatric psychology, the person writing the notes was a master of social work as well. how they got time to do all these degrees, i don't know. but i, as a layperson more or less, am attempting to screen psychological counseling records in my chambers, on the road without expert assistance and the like. i know now that i could have appointed an expert to assist me in reviewing those records and making sense of the medical and sociological notations that were in the record. but i think we, as a community need to realize that judges' discretion is key and judges are not only -- only nish -- may not be

all knowing. if we're to be properly sensitive to protecting the right of the privacy interests of the victim and ensuring that potentially exculpatory information is released to the defense counsel. >> i'd like to go back to 412. first of all mr. bartow, you talked about the relevance of sexual predisposition of the victim. why is that a standard? >> ma'am it's a standard that was taken from the federal rule of evidence, i believe. >> would you point out where it says "predisposition"? >> i would have to investigate that and look at where that language came from briefly.

but -- >> let me just suggest it's not in the federal rules. the federal rule exactly was to, having been the author, to eliminate the idea of predisposition, that and the logical fallacy that if a woman ever said yes or said yes five times or said yes 50 times, the the -- she might say no the next time. that was the whole point of that statute. so i find myself troubled, to say the least, at the use of the term predisposition to sexual behavior, as a standard for anything under 412. and i would urge you sir, to reconsider your use of that terminology. >> but it's an explicit exception. i mean so that -- it -- it is excluded.

it's evidence of predisposition is excluded. >> but you were saying as i heard you -- maybe i misunderstood -- that that could be introduced. >> that is not what i said. i intended -- not what i intended to communicate to you. >> i apologize then. >> the military evidence excludes as irrelevant evidence offered to prove a victim's sexual predisposition. >> i'm glad to see that we're on the same ground on that. okay. now, the second point you make is about how well the rule is working, and i must say that i found myself quite astonished -- i'll just use that adjective -- at the decision of the court of appeals for the armed forces in the case of u.s. v. brock. and if that's the position of the court of appeals then i don't know how we can more clearly state what 412 and the

military rule of evidence was designed to accomplish because i think the court misunderstood that. i mean, going back to the point i just raised before, in this case, i'm sure you're familiar with it. >> yes. u.s. v. rock follows gattis. different judge writing the opinion, but same issue. >> right. and here we go again, as i see it, where the court -- i thought the dissent made a very good point. both dissents were much more persuasive to me. but basically the court said that since she -- i mean, basically that she didn't want her marriage to end, and that showed that she had a motive to fabricate. and so if you have done fabrication before, then that

seems to me to be relevant. but just because -- even assuming that that in fact was the case, that she didn't want her marriage to end, i don't know that that shows she had a motive to lie about a rape. and so i'm very concerned about how the courts are interpreting this and particularly because i think if we go back to the underlying purpose of 412, and going again to this constitutional point you've raised, that the reason it's, quote/unquote, favorable to a defendant to raise the prior sexual history of the victim, it's because that's a huge -- what i would call smear tactic. and that is -- i mean, not just prejudicial to the victim but prejudicial to the truth-finding and fact-finding ability of the jurors or the court, because it is so prejudicial, given the

studio types and the -- stereotypes and the cultural attitudes we have in this society. so i'm just wondering. you're asking us to look at that specific issue about how other states handle this. but i'm wondering what we have to do to get judges in the military to understand that just because a woman had said yes before doesn't mean she's going to say yes again. is this a training issue? is it the statute isn't clear enough? >> interestingly ma'am, the court of appeals for the armed forces is a five-judge panel of civilian jurists appointed from civilian life, specifically excluded until recently from the military ranks, in order to provide oversight to the military justice system. i cannot defend and in fact have brought it to your attention that gattis and brock, represent a real curiosity at best and

perplexity at worst to the practitioner in the field because the plain language of 412, as judge effron says, until the rule is changed, it remains in effect, subject to our obligation to interpret the rules in accordance with the constitution and applicable legislation. in the absence of any meaningful justification for the court's actions in gattis and brork, that puts practitioners and judges alike in a difficult situation, and i don't think many of us would jump to the defense of what you just described in gattis and brock. it's inexplicable to this practitioner. >> i can't speak to gattis because i haven't read that case, but i can speak to brock, and i just find myself -- perplexing isn't the word i would use. i think it violates the understanding of the statute. here we are. federal rules of evidence was in '76. here we are, almost 40 years

later, and, you know the same cultural prejudices are affecting the courts' decisions here and particularly if you take the gattis decision that anything that's favorable to the defendant has to come in as a constitutional matter, well, smear is favorable to the defendant. it totally guts 412, if that's the concurrence and if that's what the military judges are going to follow. what is left of 412? >> there are those who make the country argument. but i would point out in ellerbrok, that the judge in that case got it right. by your criteria and by most observers, so it was the superior court to the military justice system that produces the result that's so difficult to understand here today.

>> well, what suggestions do you have for this panel, assuming that my colleagues agree with that? i can't speak for them. i'm surprised to find myself in the majority on any issue, but i'm glad to be in the majority on this. in any case, what suggestions do you have for the panel to deal with this problem? >> as i was preparing for testimony today and i was reviewing the rape shield rule provisions of the 50 states and the various commonwealths and territories, i was struck by the variety of ways in which victim privacy was incorporated into their criminal evidentiary codes without raising constitutional issues of the sort that the court of appeals for the armed forces attached that significance to. all i can suggest is to reiterate my earlier suggestion

that oftentimes it's the symphony of voices in a state or commonwealth or applying the best of those statutes in a recommended revision to the rules of evidence that might clarify -- for example, the thing that occurs to me, and this is not a proposal to the judge advocate general, but as a former policy official an law professor, i think one of the fundamental flaws of the court of appeals decisions in gattis and ellerbrok ellerbrock is that they view the conclusion that evidence is constitutionally required to be admitted as a static decision. but i think a more coherent way of viewing it is that that is a category into which a defense counsel is attempting to fit evidence. but until the probative value of that evidence is examined, until

the danger of unfair prejudice to the victim's privacy interest and until the danger of undue delay, substantial confusion to the members, waste of time and all those other things are considered the question of whether that other sexual behavior and sexual predisposition could ever be relevant is a dynamic decision that's not finished until we get to the last step of that diagram that i provided for you. you can't start with the conclusion. and that's what the court of appeals for the armed forces appears to be doing in gattis and ellerbrock. perhaps a more dynamic description up front as to what the drafters are intending by evidence that is constitutionally required to be admitted would help clarify for military judges. that's the ongoing determination that's being made. >> would it clarify matters if the definition of consent were

changed? >> i think that would have the most affect upon the second exception, the previous interactions with the accused in a given case. but i cannot foresee how that would specifically directly affect the other types of evidence that are xonly -- commonly introduced under this exception, the constitutionally required exception. i can think that a narrowing of consent -- for example there's this class of cases in the state law and beginning in military law in which the previous sexual behavior is so distinctive that it communicates to the accused either because he saw it or because he knows of it, that somehow the victim has given her consent to this same sort of activity in this instance.

by narrowing the definition of consent, i think we would exclude a large majority of those cases from ever getting past the initial threshold with the judge, because the consent that is at issue is the consent today, to this particular military service member, and this particular setting and circumstance, not what a person chose today six months ago with other individual or individuals. so i can see how it would narrow or it would ease the judge's burden and clarify the practitioner's lot in certain circumstances. >> it would also help in terms of the, quote/unquote, constitutional analysis that's taking place because of the crime. thanks. i think we took all your time on 412. do you have something you want to say to us on 513? >> i have said what i intended to say about 513. it's important that the judge know when the judge doesn't

know, and seek expert assistance. i think that's something we can do better in the future. we have the regulatory authority to do so and it's not often done. but i noticed mr. stone. >> yes. on 513 i thought the point of the proposal, which president clinton authorized in 1999 and 513, was that kind of psychological counseling evidence did not automatically get to the judge in every case to do what he felt like doing and my understanding is that is exactly what's happening and i think it undercuts the 513 rule, just like you were discussing how the 412 rule is undercut. as i understand it, the practice has been that military judges tell the prosecutor to go get the military hospital records of the people in question.

and they get them. and then the judge decides in camera without any recognition that the rule is intended to make that a very narrow exception and a small number of cases and not the standard operating procedure, and that the military hop -- hospitals, because they're in the chain of command, turn these records over, and unlike private hospitals, they're not requiring hipaa releases from the patient. and in fact, again, to go back to it, in the naval academy case the records of counseling on the navy base were ordered and just showed up. and so i'd like your comment as to whether or not -- i can tell you that my feeling is that that rule has also been completely undercut because it's not the business of the military judge to decide in every case in his discretion whether those records come in but only in a narrow -- a very narrow view kinds of

cases. >> sir, i certainly would agree with -- well, there has been, since we developed 513, there certainly has been an increase in the number of cases with which 513 has been litigated. when these cases first began, i don't know if there was a lack of awareness that these records existed or that more people are getting counseling. it may be a combination of the two. in my experience, this is a bifurcated process or almost a tri-furcated process. not until the closed hearing is done is the trial counsel ordered to go get the records. so if there are cases where the judge is ordering those ahead of time, i can assure you that's not the process. the rules lay out the process

that they hold the hearing and then make -- to make a determination whether the judge is going to review the records in camera. it's not an automatic. so i can only speak for the cases with which i know about. but as a -- in those cases, our judges are properly applying m.r.e. 513. it's not a rubber stamper or automatic. >> but now that the military services have sexual assault counseling, i think it's become uniform that the sexual assault counselors tell the victims that they can get psychological counseling if they feel they've been raped and where to get it. so it's now the rule rather than the exception that the defense counsel are going to expect that there's psychological counseling

records. >> yes sir. that is in fact true. our victims are getting more counseling than they have before. there is a requirement. our trial counsel have an obligation to provide brady materials, and so part of their due diligence is to find out if, upon request from the defense if there's been records, to find out if the records exist. if a defense -- if there's a motion filed, the victim is notified and the victim is provided counsel. and at a closed hearing the judge is -- the parties talk about what or whether those records should be provided to the judge in camera. the records aren't provided before the hearing. that's not the way the rules are written. so if there are cases where that is happening, they're not applying the rules properly.

again, the advent of the victim legal counsel or the special victims counsel provides the victim another tool to protect his or her privacy rights. i mean, i -- it's hard for me to talk about cases where the procedures aren't followed because in my experience, the procedures have been followed. >> i guess what you just described to me is not a procedure that i find acceptable. the supreme court said in the jaffey decision that brady is not a reason to invade somebody's psychological counseling records, which you just articulated. and if the records are routinely being obtained as if they're prosecution records from military hospitals on base then you ought to change your procedures and recommend that people see psychological kownsers off -- counselors off base, because those records should not be released as you just outlined, for reasons like brady. >> sir the -- i mean, there's a series of cases that talk about

a requirement for prosecutors to provide brady material. and i want to make sure that i'm clear. i'm not saying is that the trial counsel, upon a request from the defense, gets the files and starts looking through them. that's not what is happening. but what is happening is, if there's a request, and there's a motion filed the judge makes a determination. whether or not the judge makes an in-camera review of those records. and they're applying m.r.e. 513 as written. the judge has to weigh the balancing of the privacy interests of the victim and the due process rights of the accused. >> i'm suggesting they're doing exactly what we just heard in the 412 context. they're using the quote constitutional deposition -- exception to order those records in every case. that's all. and that therefore they have completely undercut the rule as we just heard with 412.

>> mr. bartow, did you have a point that you wanted to make in response? >> no, madam chair. thank you for the opportunity though. >> i have one quick question, please for you, mr. baker. mr. bartow. one of the reading materials which was provided to us, which was a 2003 article on m.r.e. 513, it was stated that under the army regulation at that time, that trial counsel cid agents and commanders, could access mental health records if they had an official need for the information. that was contrasted with the air force rule, which did not allow that, because of 513. my question is, has that changed? is the army now changed so it's operating in constance with the spirit of 513? >> i don't want to overstate my knowledge in this area but i believe it has changed with the advent of hipaa and increased awareness of victim privacy interests. my understanding is that it is -- that that is no longer army policy.

but i will verify that and provide that information to the panel. i will. >> thank you very much. mr. colonel baker and mr. bartow we very much appreciate your informing the committee of the facts that you have. thanks for your testimony this morning. which is victim privacy in sexual assault cases. >> live now to wisconsin for a