Armed forces has recently, in a line of cases and their progeny, cast doubt as to the constitutionality of this provision as applied in a criminal setting. The court of appeals has, in a rather expansive dicta, said that notwithstanding the plain text of the military rule of evidence, which requires the judge to do this balancing test, that the privacy interests of a victim, the danger of unfair prejudice to a victims privacy interests, will never trump the introduction of evidence that is material to the defense and favorable to the defense at trial. That is, the constitutional right to present a defense will always trump the victims privacy interests. This case, United States versus gaddis, found in volume 70 of the military justice reporter, beginning, i believe, at page 248, and the court, although divided in that opinion, is united in its skepticism toward the applicability of this provision and whether the victims privacy is ever relevant to the admissibility of evidence in a courtmartial setting. I do not speak for the judge advocate general in my next observation, but i dont believe that that result is either necessary or appropriate under the military rules of evidence. But i do believe, and this is based on anecdotal evidence reported by military judges and practitioners, that it has created a great deal of uncertainty about what the state of the law is concerning military rule of evidence 412 and whether the victims privacy interests and the danger of unfair prejudice, not just prejudice, but the danger of unfair pledge prejudice to the victim may ever be considered by a military judge. This puts judges in a bit of a conundrum. Because, if they follow the law as promulgated by the president , they risk an ad hoc evaluation of their decision by the court of appeals, their action being deemed unconstitutional. The incentive might be for perhaps an inexperienced judge not to mention the fact that shes considering the privacy interests but reach the same outcome anyway, or to disregard the military rule of evidence and obey the dicta in the court of appeals decision. None of these options are desirable. I would suggest that it may be, and im going back on the record here, that it may be profitable for your panel to explore other state and commonwealth jurisdictions in which that balancing test has been successfully incorporated in their criminal jurisprudence without constitutional objection. Because i believe that balancing test is important to protecting the victims privacy interests and guarding against unfair prejudice. Remember, thats the only thing were looking for in this case. In the case of evidence that might be minimally probative. The next slide id like to consider is the psychotherapist privilege, under military rule of evidence 513. But id like to pause and give colonel baker an opportunity or any Panel Members a chance to ask any questions about military rule of evidence 412 or any of my observations. I would like to echo something mr. Barto talked about. Our courtsmartial our cases usually come up in relatively small places. Where the that the population is relatively small, and there is i think that there is a the reason why we the kind of the added where we borrowed the civil part of 412 from the fre into the military rules of evidence, is to account for the fact that in our small environments, getting getting private sexual behavior out on the record, into that community, really does have a danger of affecting the victims privacy. And so thats why i think that the balancing test is there and that we do need i think it is important that we provide our practitioners a little more guidance in this area. Thank you, colonel baker. I would agree with that. Twin purposes of the military Justice System is described in the preamble to the manual for courtsmartial. For example are not only justice, but also discipline and good order and discipline within the armed forces. And i think the unique nature of military communities and service may justify the consideration of victim privacy interests, which perhaps in a federal setting or elsewhere, might be constitutionally suspect. But in connection with the psychotherapist privilege, this is an area yes, madam chair. You provided an opportunity for us to ask questions on 412 and i dont want to let that slip. Does any member of the panel have any questions on 412 . Thank you both for your testimony. Mr. Barto, you said that in describing the judicial Decision Making process under m. R. E. 412 that even if the proposed evidence to be offered passes the 412 scrutiny, that then theres still this 403 examination that takes place. Do you know of cases where it passes, the evidence passes scrutiny under 412 but is excluded under 403 and can you comment on that . The military rule of evidence expressly requires military judges to analyze otherwise admissible evidence under military rule of evidence 403. The last sentence, i believe, of military rule of evidence 412c3, i believe, expressly requires that. So it happens in every case. I think the most common scenario i can recollect from my own time as a military judge, and even by reference to gattous, it doesnt necessarily result in the exclusion of an entire incident of prior sexual behavior or sexual predisposition on the part of the victim, but what it frequently results in is a narrowing of the evidence tendered, rrowing of the scope of permissible crossexamination perhaps. And in gattis, thats what the judge did. She narrowed the scope of crossexamination to prevent the defense from going too far afield into the victims sexual previous sexual behavior. So gattis provides one example. But id be happy to provide additional examples from the case law in a written submission after my testimony. But i hope that addresses at least initially your question. Thank you. I could offer ive seen it apply, the 403 balancing test apply when theres going to be some sort of delay where, while the evidence may come over the hurdle of unfair prejudice to the victims privacy right, but its still going to take a while to get the evidence. And the evidence is just not worth delaying the trial to get that evidence into court, particularly as i said, i was a judge and we frequently had witnesses that would have to come out there. If i could under just the 403 analysis . Yes, maam. In fact, in a particularly troubling aspect of the concurring opinion in gattis, former chief judge efron proposes a methodology where military rule of evidence 403 would even be overcome by material evidence thats favorable to the defense. He would propose that that constitutional imperative to present a defense would even prevent the operation of 403. Theres no logical constraint on the reasoning of that case. Why not allow hearsay . Why not do away with authentication . I paint that as a worst case scenario, but the former law professor said we cant avoid the slippery slope argument. I dont think the court meant what it said in gattis, yet it is creating a certain amount of anxiety and uncertainty as to how not only 412 but 403 apply in this new universe. Any other questions . No, thank you. I know that i am let me start by saying im speaking from Public Record what ive read in the newspapers, but from what i read about the case at the Naval Academy involving the cadets there, i was not under the impression that the military judge in that case bothered with any of your four hurdles. I didnt see anything about an incamera hearing. I didnt hear the only exception that the judge relied on, i understand, was that it was that the constitution required it, without explaining how the constitution required it. And when as i understand it, the prosecution tried to resort and it was Victims Counsel in that case, to the specific Appellate Court over that judge, they did not take the case, and then there were petitions filed with the court of appeals for the armed forces, and they did not take the case. So basically, youre telling me about the four hurdles. Doesnt sound like its being followed. And id like to know if you have some comment on that or if you can tell us as a panel how we can get and review the record in that case, as a very public example that upset an awful lot of people. This is one case in which the army is happy to defer to the Naval Services to provide an answer as to how that courtmartial process worked. But i would give colonel baker time to prepare by saying that bad cases make bad law. Every day, throughout the world, military judges are routinely applying the provisions of military rule of evidence 412 and 513 without Media Attention and with solicitous concern for both the Due Process Rights of the accused and the privacy interests of the victim. With that, ill turn it to colonel baker to discuss the particular instance in the Naval Academy case. Sir, i have not reviewed the record of that case. My knowledge of that is, like you, based upon what ive read in the newspapers. So i cant provide you a comment on whether the rules were or were not followed in that case. Certainly our procedural rules do require the judges to make a very difficult decision. And that very difficult decision is to balance the privacy interests of the victim with the rights of the accused. Im confident in the cases that im confident that, as bill said, across the globe, this happens properly a lot. Are there cases where it doesnt . Yes. But i dont think its because theres a problem with the rules. It may be a problem with the folks that are applying the rules. And im not trying to say that the judge in that case improperly applied the rules. I mean, i just dont know enough about the case to comment on whether they were properly applied or not. I just will note that the judge that presided over that case, i believe, was the chief trial judge of the Navy Marine Corps trial judiciary. And is a very well respected jurist and i would assume that he did properly apply the rules. So thats kind of the best i can do, sir. I think that mre 412 and mre 513 do properly provide practitio r practitioners the ability to apply it with some clarity as weve discussed in the added prong to the value outweighing the unfair prejudice. Lets turn to those rules just for a second, because you opened your testimony, talking about what i thought was a proposed rule to allow victims a right to be heard through counsel. I guess i dont understand currently what the point is of having a closed hearing if it is not currently the practice that victims can be heard through counsel. The victims are the people with the privacy interests during that hearing. The prosecution may care about it, but they have a broader concern, which is to get a case to trial and theyre not going to have to live with the adverse publicity about their sex lives that the victim will. If theres going to be a hearing, you certainly dont expect the victim to be representing themselves. So why is it that the military needs to propose a rule that victims be heard through counsel . Why isnt that already a matter thats accepted across the board . The victims always had a right to be reasonably heard at these proceedings. The purpose of the joint Services Committee proposing that we clarify that that right occurs through counsel was there has frankly been some question about it. The case of kastenburg went up to the court of appeals for armed forces, and we wanted to ensure that there was no question about whether the victim had whether the victims right to be reasonably heard at a 412 or a 513 hearing included the right to be heard through counsel. I guess i dont see why that providing clarity to me is a good thing. Yes, i think it is a good thing. I guess what im pointing out is the fact that you have to provide that clarity is evidence that theres an awful lot of military judges who are not allowing victims to be heard through their counsel, and theyre expecting young military recruits to speak for themselves on legal issues and not to be heard through the counsel which the services are providing to argue on their behalf about their privacy. And i just think that thats i think its long overdue, frankly, but i think its an indication that theres something wrong. If i could jump in on behalf of the army. Mr. Stone, in the current military rule of evidence, which mirrors the federal rule of evidence in this regard, the victim must be afforded a reasonable opportunity to attend an be heard. So there is, as colonel baker noted, a fundamental right for the victim to be present and be heard. What is recent is the advent of special Victim Counsel or victims Legal Counsel which have been now provided by congress through statute in the National Defense authorization act, i believe, of 2013 that now create a specific attorney position to advocate on behalf of victims. The joint Service Committee change that is being contemplated is in response to this new phenomenon of special victims Legal Counsel that are now part of the legal landscape and which need to be accounted for in the rule. Assuming that judges everywhere are not respecting victim rights in the face of a clear mandate from the commander in chief that they do so, thats just not supported by my own experience, and i would venture to speak in colonel bakers, as well. I guess my response to that is that victims right to counsel have not only been around for decades, but they were enshrined into federal law, governing every federal court, in 2004 in the crime victims rights act. All youre telling me is that recently congress made Victims Counsel freely available to victims but counsel has been available to victims for ten years. And its long overdue that military judges didnt expect the victim who has counsel to have to get up and make the claim about privacy, him or herself, and not through counsel. Any other comments . No. I was just going to say its true that the federal victims rights act talks about counsel. But the reality is most victims do not have counsel in the civilian world or any other world, because they cant afford them. It is a relatively new phenomenon, both in the state so it doesnt surprise me that its 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 dont pay for it. So its gone beyond most of the programs that exist in the civilian world. I was interested in how article 32s 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 . Im interested in that too. And thats two different questions, i recognize. Ill start with the second one first, because its easiest. The proposed the other way, if you could. The proposal thats currently before thats out for Public Comment from the joint Services Committee is to specifically exclude the constitutional exceptions at article 32 hearings. For both 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, maam . And you can and we can the staff can get you a copy of the proposal. Its 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 now is to determine probable cause. Whether the accused should be courtmartialed for a particular offense. In the first two exceptions, could provide information to the preliminary hearing officer that could make that could make it so that there wouldnt be probable cause. If there was valid evidence that somebody else was the other source of the exception. So really it also 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 its not a discovery tool. Your other question, maam, was how are 32 hearings is the question, how is 412 being applied at 32 hearings now . Yes. And is it different . I mean, do they were there always 412 hearings at article 23s . Or at least were there always supposed to be . There were always supposed to be. Certainly i think that anecdotally i can state they werent always done right. I talked last evening with colonel joyce who runs our victim Legal Counsel organization and her counsel are actively involved in filing theyre not calling them motions, because its at a preliminary hearing, but theyre 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 thats 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, youre 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 relevant to just a look at the facts and a prob rabble 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 work well, words to that effect. Are there some repeated issues with regard to the proper application of procedural rules . Perhaps theyve been addressed by these article 32 changes . One of them kind of historically frankly weve not been very good at applying them at article 32 hearings. A lot of it, because of the wideopen 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 cant say weve done it right every time. But i think that, in the vast majority of cases, courtmartials right across the judge, our military judges do a fantastic job of balancing the interests of the victim against the interests of the accused. Admiral tracey, 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 Courts decision in jaffe v. Redmon several years ago, there is the advent of this military rule of evidence. 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 didnt 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 its 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 dont 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 omnipotent and omniscient in the sense that they may need to enlist the help of Mental Health professionals to screen this, as well. Going forward in the future, if were 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. Id like to go back to 412. First of all, mr. Barto, you talked about the relevance of sexual predisposition of the victim. Why is that a standard . Maam, its 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, its 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, 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 its an explicit exception. I mean so that it it is excluded. Evidence of predisposition is excluded. But you were saying, as i heard you maybe i misunderstood what you were saying is that that could be introduced. That is not what i said. I intended to communicate to you maam i apologize then. The military evidence excludes as irrelevant evidence offered to prove a victims sexual predisposition. Thats what i thought the rules were. And im glad to see that were on the same ground on that. The same 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 ill just use that adjective at the decision of the court of appeals for the armed forces in the case of u. S. Versus eller brock. And if thats the position of the court of appeals, then i dont 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, im sure youre familiar with it. Yes. U. S. V. Brock 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 didnt 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 didnt want her marriage to end, i dont know that that shows she had a motive to lie about a rape. And so im 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 youve raised, that the reason its, quote unquote, favorable to a defendant to raise the prior sexual history of the victim, its because thats a huge what i would call smear tactic. And that is i mean, not just prejudicial to the victim but prejudicial to the truthfinding and factfinding ability of the jurors or the court, because it is so prejudicial, given the stereotypes and the cultural attitudes that we have in this society. So im just wondering. Youre asking us to look at that specific issue about how other states handle this. But im wondering what we have to do to get judges in the military to understand that just because a woman had said yes before doesnt mean shes going to say yes again. Is this a training issue . Is it the statute isnt clear enough . Interestingly, maam, the court of appeals for the armed forces is a fivejudge 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 ephron says in his concurrence in gattis, 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 courts actions in gattis and eller brock that puts practitioners and judges alook in a very difficult explanation and i dont think many of us would jump to the defense of what youve just described in gattis and eller brock. Its inexplicable to this practitioner. I dont speak to the judge advocate general in that characterization. I cant speak to gattis, because i havent read that case but i can speak to ellerbrock and i just find myself, perplexing isnt the word i would use about it. I think it violates the understanding of the statute. And here we are. Federal rules of evidence was in 76. Or late 70s and here we are, almost 40 years later. And you know, the same cultural prejudices are infecting the Court Decisions here. And particularly if you take the gattis decision that anything thats favorable to the defendant has to come in as a constitutional matter, well, smear is favorable to the defendant. It totally guts 412, if thats the concurrence and if thats what the military judges are going to follow. What is left of 412 . There are those who make the contrary argument. But i would point out, in ellerbrock that the trial judge, the uniformed 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 thats so difficult to understand here today. Well, what suggestions do you have for this panel, assuming that my colleagues agree with that . I cant speak for them. Im surprised to find myself in the majority on any issue, but im 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 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 its 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 and law professor i think one of the fundamental flaws of the court of appeals decisions in gattis and 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 victims 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 thats not finished until we get to the last step of that diagram that i provided for you. You cant start with the conclusion. And thats what the court of appeals for the armed forces appears to be doing in gattis and ellerbrock. Perhaps a more dynamic description up front inmy tear rule of evidence 412 as to what the drafters are intending by evidence that is constitutionally required to be admitted would help clarify for military judges. Thats the ongoing determination thats 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 commonly introduced under this exception, the constitutionally required exception. I can think that a narrowing of consent for example, theres 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 military judge, because the consent that is at issue is the consent today, by this to this particular military service member, and this particular setting and circumstance. Not what a person chose to do six months ago with other individual or individuals. So i can see how it would narrow or it would ease the judges burden and clarify the practitioners lot in certain circumstances. It would also help in terms of the, quote unquote, constitutional analysis thats taking place because of the crime. Okay. Thanks. Do you want to deal 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. In that its important that the judge know when the judge doesnt know, and seek expert assistance. I think thats something we can do better in the future. We have the Regulatory Authority to do so, and in practice its not often done. But i notice 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 whats 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 Hospitals because theyre in the chain of command, turn these records over, and unlike private hospitals theyre 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 id 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 its 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 dont 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 trifurcated 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 thats 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. Its 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 mre 513. Its not a rubber stamper or automatic. But now that the military services have Sexual Assault counseling, i think its become uniform that the Sexual Assault counselors tell the victims that they can get psychological counseling if they feel theyve been raped and where to get it. So its now the rule rather than the exception that the defense counsel are going to expect that theres 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 theres been records, to find out if the records exist. If a defense if theres 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 arent provided before the hearing. Thats not the way the rules are written. So if there are cases where that is happening, theyre 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 its hard for me to talk about cases where the procedures arent 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 somebodys psychological counseling records, which you just articulated. And if the records are routinely being obtained as if theyre prosecution records from Military Hospitals on base, then you ought to change your procedures and recommend that people see psychological counsellors off base because those records should not be released, as you just outlined, for reasons like brady. Sir, the i mean, theres a series of cases that talk about a requirement for prosecutors to provide brady material. And i want to make sure that im clear. What im not saying is that the trial counsel upon a request from the defense goes, gets the files, and starts looking through them. Thats not what is happening. But what is happening is, if theres a request, and theres a motion filed, the judge makes a determination. Whether or not the judge makes an incamera review of those records. So and theyre applying mre 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. Im suggesting theyre doing exactly what we just heard in the 412 context. Theyre using the, quote, constitutional exception to order those records in every case. Thats all. And that therefore they have completely undercut the rule, as we just heard with 412. Mr. Barto, did you have a point that you wanted to make with response . No, madam chair. Thank you for the opportunity, though. I have one quick question, please, for you mr. Barto. One of the Reading Materials which was provided to us, which was a 2003 article on mre 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. So my question is, has that changed . Is the army now changed so its operating in constance with the spirit of 513 . I dont 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 is no longer army policy. But i will verify that and provide that information to the panel. I will. Admiral tracey . Thank you very much. Mr. Colonel baker and mr. Barto, we very much appreciate your informing the committee of the facts that you have. Thanks for your testimony this morning. Okay. Go to our next panel. Which is victim privacy in Sexual Assault cases, past sexual conduct. Heres whats ahead today on cspan3. Coming up next, the u. S. Supreme Court Hears Oral Argument in the case of holt versus hobbs which looks at prisoners religious rights. Then a discussion on the future of nuclear power. And later a look at promoting democracy abroad. Heres our primetime programming across the cspan networks. Here on cspan3, starting at 8 00 eastern, its a look at how one community in america is handling the recent influx of young, undocumented immigrants. Well hear from republican mayor Judith Kennedy of lynn, massachusetts, who describes efforts to provide undocumented children with education and health services. The center for Immigration Studies hosts this event. On cspan2 at 8 00 a discussion on cronyism in government. Steve simpson, a constitutional attorney and director of legal studies at the california based Ayn Rand Institute shares his thoughts from the hungry mind speaker series, engelwood, colorado. Heres a preview. As long as we view governments role as essentially dividing us, which is the practical effect, dividing us into warring factions or warring Interest Groups, corruption will be the rule. Or the use of force against one person, or one person against another, and warring Interest Groups and legal plunder is the only option. So perhaps a better word for the term that people refer to, or the term that they use, cronyism, i would say, instead of crony capitalism, which is a horrible term, it suggests that capitalism, which is the system of freedom, is leading to this sort of thing, the better term would be crony stateism. Stateism being the system in which the individual is subordinated to the group or to the state. But actually thats redundant. Because the real essential evil here is that form of government. Its stateism. So if you really want to pinpoint what the problem is, when people talk about cronyism, it is the view that the state is supreme, and individuals are subordinate. If we want to fix this problem, the only solution ultimately is, i would sum it up as, leave us the hell alone. And join us tonight on cspan for interviews with retiring members of congress. Well feature Iowa Democratic senator tom harkin and North Carolina republican howard coble. This is part of our weeklong series. This thanksgiving week, cspan is featuring interviews from retiring members of congress. Watch the interviews tonight through thursday at 8 00 p. M. Eastern. Ive often said the republicans do have a legitimate argument here, by the way. And that theyre not being allowed to offer amendments. Well, theyre not being allowed to offer amendments because they filibuster bills. They filibuster bills because theyre not allowed to talk amendments. Its one of those chicken and egg things. Our best way to get rid of it is just get rid of the filibuster but at the same time guarantee to it is get rid of the filibuster, but guarantee to the minority and new rules of the senate that the minority will be allowed to offer amendments to any bill thath on the floor. Jermaine amendments, with reasonable time limits for debate. I wont even qualify to say probably, the most eloquent order in the congress. Henry told me one time, i think i remember this correctly. He said im not wild about this impeachment, but he said there are 23 americans serving active prison sentences for having committed purgery. He said, how to you justify that and then turn a blind eye to the president . He said, i cant do it. And ill always remember henry saying that. And also on thursday, thanksgiving day, well take an American History tour of various native american tribes. Thats at 10 00 a. M. Eastern following washington journal. Then at 1 30, attend a Ground Breaking ceremony in washington with former secretaries of state and Supreme Court justices, clarence thomas, samuel alee toe and sonia sotomayor. Last month, the Supreme Court considered whether an inmate has the right to grow a beard for religious reasons. The Arkansas Bureau of prisons says it is a security threat. The case is holt versus hobbs. Argument first in case 1367. Mr. Chief justice, it may please the court. 40 other prison systems permit beards without a length limit, yet arkansas prohibits even half an inch and in their brief, they reject every means to evaluate their testimony, so what they really seek is absolute difference to anything they say just because they say it. That would be the repeal the statute de facto. There may be difference to prison officials, but there must be concrete limits to that difference. If this prisoner wanted to have a full beard, would require that the Prison Administration allow him to do that . Some courts have said, yes, theres little about full beards and whether theyre dangerous, wu the 40 states permit that the state would have a difficult burden of proof. Mr. Laycock, the problem i have with your clients claim of religious requirement is the religious requirement is that he grow a full beard, isnt it . Now, lets assume im in a religion that requires polygamy. I mean, could i say to the prison, well, you know, okay, i wont have three wives, just let me have two wives. You know, youre still violating your religion it seems to me if he allows his beard to be clipped to one inch, isnt he . The religious teaching is a full beard. He testified that religiously half an inch is better than nothing and he explained that in terms of something he referenced. Hes in a difficult situation. I dont think he should be penalized for being reasonable. He offered an extremely conservative compromise. Religious beliefs arent reasonable. Theyre categorical. God tells you. Its not a matter of being reasonable, god being reasonable. Hes supposed to have a full beard. Hes supposed to have a full beard, but a partial beard is better than none, and thats not just in secular terms but in religious terms. You think on the record thats what his religion would require if he cant have a full beard. Thats correct, your honor. Youre really just making your case too easy. One of the difficult issues in a case like this is where to draw the line, and you just say, well, we want to draw the line at half inch because it lets us win. The next day someone will be here with one inch, and maybe it will be here. You cant avoid the legal difficulties by saying all we want is half an inch. Most of the cases seek a full beard and sooner or later you will have to decide one of those cases, but this case, he made a pro se decision to limit his but we have to decide this case pursuant to a generally applicable legal principle and that legal principle is one it seems to me that demands some sort of limit. If youre unwilling to articulate a limit to the principle itself, it becomes a little bit difficult to apply it and say, well, we dont know what the limit is because youre only asking a half inch. Well apply a theoretical legal structure and say you fall within it. Well, i think, you know, the limit has to be determined on a record and a case that is seeking a longer beard. I think, you know, the larger issue than just half an inch that this case presents is how do you administer the legislative history suggests deference to prison officials in the context of a compelling interest standard. Maybe this was improvidently granted. I dont want to do these cases half inch by half inch. Lets take a case that involves a full beard. The next case will be one inch, then one and a half inches, two inches. Theyre not going to come in that order. The next case is going to be most likely the next case is going to be a full beard because thats the great bulk of the cases. This case has a limited question presented and has a serious question of statutory interpretation. The courts below essentially applied the constitutional standard that gave essentially unlimited deference to the prison official. What has this court said about the standard with reference to prisons . That the prison has to show its least restrictive alternative in order to meet the requirements of strict scrutiny and its the prisons burden is that proposition established . Well, your only prison case is cutter, and that was a constitutional challenge. Do you think it displaces turner as the right standard . It was clearly intended to replace turner. It textually replaces turner. And what is the test in so far as youre concerned . The test is compelling interest and least restrictive means and deference must be administered in the context of that standard, not instead of that standard. So if its a close case on compelling interest, they may well get deference. If they give a reasoned and well considered and informed explanation, they deserve for deference. More deference would be due. Cutter says they get due deference, but cutter had no occasion to decide how much deference is due or how that should be administered. The textual standard is clearly compelling interest and least restrictive means. Could you put your answer in practical terms . The chief justice asked you whats the legal principle that you want us to apply, and you announce it as give them the right deference. Its a little bit circular, the answer, in my mind. Looking at what the circuits have been doing, which one do you think articulates the best approach and what courts should be doing . Maybe judge gorsuchs opinion in the tenth circuit, but im not sure any circuit has given a fully elaborated candidate of deference in the context of a compelling interest test. We think the more reasoned and informed their explanation, the more deference is due. Do they give concrete examples of specific harms, do they treat similar risks the same way, do they take account of solutions that have been found to work in other jurisdictions . Do they take account of the religious needs of prisoners or do they just reflexively say no. The standard is other similar risks the same way, then what about a quarter inch rule because thats what they allow for people who have dermatological problems. They allow a quarter inch for medical beards. They dont allow even a quarter inch for religious beards. But the quarter inch i think for medical beards i think fatally undermines their claims they cant administer a length limit and it somewhat undermines all their other claims about a half inch weird. This is in some ways like the case Justice Alito wrote in newark on the third circuit. The medical exception undermines all the alleged reasons for not allowing a religious exception. There are some religious practices, i think that the sikh practice of not cutting hair ranks as a religious practice, so not cutting hair and wearing a turban consistent with what you say is the standard. Could a prison say we wont allow that because it is too easy to hide contraband . That may be. I dont know what the evidence would show about sikh hair wrapped in a turban, but thats clearly a much more serious issue than whats presented in this case. Sikh hair wrapped in a turban may well be difference but we dont have any evidence about it in this case. We dont really have a way to know on the record in this case. Mr. Laycock, youre relying on this case really on felt intuitions that this couldnt possibly advance the states interest but for the most part in these cases, there will be some incremental gain with respect to the interests that the state has. So whether its a full beard or whether its long hair or whether its a turban, there will be some ability to say even though its just teeny tiny, there is some increase in prison security that results from disallowing this practice. And i guess i want to know, and this really fits in with several of the other questions that have been asked you, is how do we think about that question in the context of this statute . I think they have to show material the phrase in the governments brief and i think its helpful a material effect on their security situation. Any teeny tiny risk, however small, is another way of de facto repealing the statute because you can always imagine some teeny tiny risk. Even in turner the court said the test into zero risk. Even in turner the court said you have to teeny tiny isnt enough, but how about, you know, measurable although small . Or at what point does it become something that we say, yes, you have to take that into account . Well, i think material or significant may be the best we can do. They say, for example, that in 2011 they confiscated 1,000 cell phones. I dont think a half inch beard would change that number but if it wasnt to 1,001 and or 1,010, i dont think thats material. If it goes to 1,100, thats a significant increment. They have to show some material effect on their security situation and here where they allowed beards for many years where 43 states allowed beard, there should be plenty of examples if it were a problem. And, you know, this is not something thats so dangerous no one has tried it. So there should be plenty of examples, and, in fact, they have no examples of anything hidden in beards and certainly not in a very short beard such as half an inch. This idea of deference comes from legislative history, and that very same legislative history said exaggerated fears, mere speculation are not enough, and its for the judiciary to distinguish the two. I think what we have in this case is exaggerated fears. Well, the problem with deference, i think, is that if you accept the fact that there is a point at which it does become a problem, full beard with the turban, then theres the question of how you draw the line, and drawing the line, it strikes me, may be the point at which you will consider deference to the prison administrators. You take deference entirely out of the equation by saying, look, were only asking for half an inch. Well, we havent taken deference out of the equation but when we only ask for half an inch and when they offer so little evidence and no examples and no consideration of solutions elsewhere, they havent done anything to deserve deference. They havent shown expertise, and even with deference, even with some degree of deference, it doesnt make out a compelling interest on these facts, and thats the question presented. Could you you know, we seem to be arguing rules. They say no beards. You say half inch is okay. And then the question begs itself how about 3 4 of an inch, how about an inch, or a full beard. What are we measuring this against . Are you seeking to establish a rule that every prisoner has to be permitted to grow half inch beard and no more . Or are you asking for a rule that applies just to your client and then articulate why for your client . No. We think a reversal here would establish a right to a half inch beard for all prisoners on this record unless some other state made a very different showing. All prisoners so what happens i know the magistrate judge or the judge below here said that it was preposterous to think that this prisoner could hide anything in his half inch beard. Assuming that his half inch beard was not thickly grown, but some are, and some you cant see the skin. Should that half inch issue be applied to that prisoner . Wouldnt it be a different set of facts in that case to consider . Well, a state might be able to show thats a different set of facts. You know, but the question is not just is it conceivably imaginable that some prisoner somewhere could hide something in a half inch beard. But could he hide something there that he couldnt much more easily and more securely hide in the hair on top of his head, in his shoe, in the lining of his clothes . For all half inch beards, right . Yes. We have to assume all half inch beards are okay if god tells you to grow them, right . Well, you know, i think thats right, and again subject to somebody producing evidence that were wrong about some half inch beards but i think, yes. Well, i mean, whose burden is that . It is the states burden, that is explicit in the statute. This is an affirmative defense were talking about of compelling interest and least restrictive means. The only limit they impose on the hair on top of your head is it cant extend below the middle of the neck. You can have long hair, curly hair, afros on top of your head without a length limit. The hair on top of your head and the hair on the front of your head is not even rational. They could hide more and the prison warden testified to this, you could hide things on the hair on top of your head but thats not against the rules. They have singled out the beard that is preserved that is more for religious reasons and not treated other things that are really indistinguishable. If there are no further questions, ill reserve the remaining time. Thank you, professor. Mr. Chief justice, may it please the court, this case involves the religious accommodation of a half inch long beard that bop and over 40 states would allow a prisoner to wear. The state failed in its burden of proving that denying a half inch religious beard would be the least restrictive means to further a compelling interest. Is it your position that if, what, 90 of other institutions similar to the one at issue in the case permit the practice that is challenged, it cannot be a compelling interest . Is that your position . No. In fact, i think our position is that security interests in prisons are compelling, but the burden that is imposed upon the state is a burden to show the means selected, the denial of a half inch beard, is the least restrictive means to further that interest, and in this case thats a showing that has to be made in court. It is something that congress specifically recognized would be i understand that, but im asking what is the relevance of the fact that other well, the relevance are we going to say whenever an institution comes up here that has a restriction which other institutions of the same type do not have or at least a large majority of them, its ipso facto bad . No, i dont think its a dispositive factor, however it significantly undermines the states showing that a similar restriction could not be in this context. And the state in the face of this example if raised in litigation would have to provide a reasonable basis for explaining why there might be a distinction between whats going on in other states and whats going on in this state. And the showing in this case is exceptionally meager. Why does it have to show a distinction . It can just say the other states are wrong. We think its dangerous. I dont care what other states think. I think a little more will be required under the compelling interest test. Now, this court in cutter suppose a state just simply says this, you know, actually theres nothing special about our prison. We cant show you some special circumstance, but what we can show you is that prisons are in the business of making tradeoffs between security and other values. They do that every single day, and our state just thinks that the tradeoff should be more security oriented. So we insist on a greater level of security than our peer institutions do. Are you saying the statute prevents a state from doing that . No, i dont think the statute imposes a least common denominator amongst state prison systems. However, i think there is some bounds to the states judgment that needs to be there are some limits, and the state needs to provide a reasoned explanation in order to get deference to its predictive judgment in this context. How go ahead. How do you reconcile deference with the strict scrutiny that the statute requires . Well, this court in cutter, for instance, explained that the strict scrutiny when deciding what was required by strict scrutiny context there are two questions there. One is a good question. With does this idea of deference come from in this context but the question i was asking is assuming there is a role for deference, how does it fit together with what the statute expressly requires . I dont think theres any dissidence between the idea of strict scrutiny which is not a degree of proof required. Its whether you identified a compelling interest and shown that the burden is least restrictive means. That can be shown by a preponderance of the evidence. Based on the fact they are charged with protecting the public and administering these prisons. When they provide a reasoned explanation based on experience and expertise, they dont have to point to a specific example of a half inch beard in the past resulting in something horrible i share justin alitos