The prosecution and defense also agreed that two months before the incident, while the two were watching a movie together, Specialist C reenacted a scene from a movie by going into Zak's kitchen, removing her shirt, and spraying whipped cream over her breasts. The two's account of this event varied slightly.
Zak contended that two to four weeks after that incident, he gave a full body massage to Specialist C, by the end of which she was clad only in her panties. Specialist C denied that event occurred. The military judge refused to allow Zak to testify to the members about that event, relying on Military Rule of Evidence 412 and ruling:
I do not believe that this incident happened. I find the accused's testimony to be self-serving and incredible. If such an incident had happened, surely it would have been mentioned by the accused before now, and surely it would have been part of the original defense motion for the 412 relief. The accused admitted as much in cross examination when he stated that he considers a massage given in a semi-nude state to be "sexual activity."
Held: Reversed. United States v. Zak, __ M.J. ___, No. ARMY 20050051 (A. Ct. Crim. App. Oct. 5, 2007).
CAAF has emphasized, "In applying Mil. R. Evid. 412, the judge is not asked to determine if the proferred evidence is true; it is for the members to weigh the evidence and determine its veracity." United States v. Banker, 60 M.J. 216, 622 (C.A.A.F. 1996).
Citing this provision from CAAF's Banker opinion, ACCA ruled:
We disagree . . . with the military judge's exclusion of evidence of appellant's mostly-nude massage of SPC C. The footnote to the military judge's findings referencing the massage clearly reveals that she did not evaluate the evidence under the two-prong analysis required under Mil. R. Evid. 412 and the Banker and [United States v. Andreozzi, 60 M.J. 727 (A. Ct. Crim. App. 2004), petition denied, 62 M.J. 309 (C.A.A.F. 2005)] decisions . . . . Rather, she excluded the evidence because she did not "believe that this incident happened" and found appellant's "testimony to be self-serving and incredible." . . . [The] military judge's ruling on the veracity of the evidence usurped the role of the panel members, was clear error, and, as a result, an abuse of discretion. At a Mil. R. Evid. 412(c)(2) hearing, the military judge is to determine whether the evidence is relevant and falls into one of the listed exceptions -- not whether the evidence is true.
Zak, No. ARMY 20050051, slip op. at 12 (internal citations omitted).