Prior and Subsequent Conduct Between Accuser and Accused

Below is an adapted segment from a recent episode of the Military Justice Today Podcast in which trial attorneys Rob Capovilla and Brad Simon talked about several key issues in the important case of U.S. v. St. Jean.

Rob:  So last question, Brad. Let’s say we’ve got a brand-new captain who’s been in TDS for two weeks and is assigned to a sexual assault case. The facts include some sexual behavior beforehand. What are the top one, two, or three things you would recommend to that officer—whether in preparing or arguing a 412 motion, or getting ready for an Article 39(a) hearing?

Brad:
Absolutely. I’ll break it down into four main points:

1. Relevance and Connection
   Be able to clearly show how the instances you want to highlight—whether before or after—are connected to the allegation. Why are they relevant and material? Don’t just say, “They held hands a week ago, so they must have had sex on this day.” You need to articulate the specific connection. Practice this. Think it through—whether you’re running, walking the dog, or making dinner—always ask yourself: How are these two things connected?

2. Admissible Evidence
   Have actual evidence. An affidavit from your client may be fine at a 39(a), but if you don’t plan on calling your client at trial and the victim denies the behavior, you won’t be able to get it in. Understand how you will actually introduce the evidence at trial, because trial rules differ from motions practice.

3. Clarify the Ruling
   If you’re unsure about a ruling, seek clarification. If the judge issues a written ruling later and it’s unclear, ask questions. You don’t want to walk into trial uncertain about what’s allowed. If you have new evidence, or believe the judge got it wrong, file for reconsideration.

4. Stay Composed in Court
   If you’re in the middle of cross-examination and the judge sustains an objection outside the jury’s presence, don’t get flustered or just move on. If you feel the ruling is wrong, ask for a break, regroup, and figure out how to get back on track. Never waive an issue that’s critical to your case. You need to know the difference between must-haves and wants. In a sexual assault allegation, prior history—kissing, spending the night together, intimate behavior—those are must-haves.

So, those are my four recommendations: relevance, evidence, clarification, and composure. Have a plan of attack at every step.

Rob:  Very good, Brad. That was outstanding. I appreciate it. I think Specialist St. Jean was wrongfully convicted, so your points are especially important.