EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 1, 2007

Boys on Film, Take 2: Military Doctor Trial With "Gay Exception" to Rule Against Character Evidence Begins

Earlier this month, I wrote about a military judge's homophobic pre-trial decision to allow jurors to view gay pornography found on the home computer of a Navy doctor alleged to have secretly filmed midshipmen having sex.  As I noted, under both the Federal and Military Rules of Evidence, it is impermissible to introduce character evidence which indicates that an individual has a propensity to act in a certain way to prove that the individual acted in conformity with that propensity at the time in question.  Nonetheless, the military judge ruled that the pornography would be admissible for this very purpose:  to establish that the Navy doctor had a "possible need" to view "young, athletic males" engaged in sex, and thus acted in conformity with this need by secretly videotaping Midshipmen (while the judge claimed that this was evidence of motive, this rationale is nonsensical).

Well, the Navy doctor's trial started this week, with jurors viewing the videotapes which prosecutors claim the Navy doctor made and which the Navy doctor claims that a midshipman who flunked out of the academy recorded in an attempt to extort money from him.  Every indication is that the prosecution will introduce over 2,000 homoerotic images found on the Naval doctor's computer, in accordance with the judge's pre-trial ruling.  Meanwhile, defense attorneys have correctly, but without avail, claimed that the prosecutors merely want to paint the Naval doctor as a homosexual and thereby bias the military jury against him. 

If this evidence is admitted and the Navy doctor is convicted, he should certainly appeal to the United States Court of Appeals for the Armed Forces becuase there is no basis for this evidence to be admitted.



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