The United States Court of Appeals for the Armed Forces (CAAF) has decided to reverse the outcome of the Army child sexual assault case of U.S. v. Frost and authorize a rehearing. During the case, the defense asserted that the alleged child victim had been improperly influenced by her mother into testifying against Frost. It was argued that Ms. Moore – the child’s mother – wanted full child custody and encouraged her child to fabricate the accusations of sexual assault to gain it. However, the military judge reviewing the case seemed to have misinterpreted the defense’s argument as saying that the child’s psychotherapist – Dr. Landry – had improperly influenced the child. This misinterpretation of the defense’s argument may have significantly contributed to Frost’s conviction, a divided CAAF found, and so the decision is reversed.
DETAILS OF THE ACCUSATIONS AGAINST FROST
Frost was granted visitation to see his young daughter after separating from Moore. The child – who will be referred to as just DF and was just six-years old at the time – visited his Texas residence in 2013 before returning home to Moore in Georgia. Several weeks later, Moore and her boyfriend – Mr. Casey – told local police officers that DF told them without any prompting that she had been sexually assaulted orally by Frost during her last visitation to him.
In two subsequent interviews with forensic investigators, DF made no mention of the sexual abuse. Frost was charged despite the lack of evidence and no recorded testimonies or statements from DF. An Article 32 investigation was enacted and, once again, DF did not say that Frost sexually abused her in any way.
Afterwards, Moore signed DF up for psychotherapy sessions with Landry. It was only during one of these sessions that DF said Frost sexually abused her; although, this statement has not been verified by anything other than Landry’s own notes. Prosecutors contacted DF after Landry reported the statement, but, once again, DF did not tell them she had been abused. Regardless of the overwhelming lack of evidence against Frost, court-martial was approved and began.
COMPLICATIONS & IMPROPER INFLUENCE ARGUMENTS
During the trial against Frost in 2016, DF finally testified that he had sexually abused her. The defense tried to impeach her as an unreliable witness due to the sudden inconsistency in her statements, as well as the consistency in the total lack of evidence beforehand. It was also argued by the defense that Moore had improperly influenced DF, muddling the truth and her memory in order to get Frost convicted and his visitation rights removed.
The military judge interpreted the defense’s arguments as one that alleged Landry had been the one who improperly influenced DF during the psychotherapy sessions. As such, the judge effectively defeated the defense’s argument since Moore and Casey had both made the same statements well before Landry, ruling them as non-hearsay. If this was truly the argument posed by the defense, then it would obviously have its holes. However, as the CAAF would later find, the defense never intended to argue that Landry had improperly influence DF, but only that Moore had. Indeed, the argument was that the entirety of the accusations and the overall situation originated from Moore’s improper influences.
WHAT IS HEARSAY IN A MILITARY COURT-MARTIAL OR TRIAL?
According to the military rule of evidence, hearsay is any statement that has not been made in court but is used by the prosecution or the defense to try to prove something said in court. The hearsay rule can be set aside for exceptions, though, including if the hearsay can be reasonably argued as consistent with other prior statements. The judge overseeing Frost’s trial said the statements used by the prosecution were not hearsay due to Landry’s psychotherapy notes – the notes that included an alleged statement from DF saying she was sexually abused by Frost – being created well after the alleged incident and after Moore and Casey both said DF told them the same thing.
The divided CAAF did not attempt to change the definition of hearsay for the Frost case in its decision to reverse the conviction, but instead found that hearsay and improper influence arguments had both been misinterpreted. In that the defense had intended to say that Moore, not Landry, had improperly influenced DF, then the hearsay would originate at the beginning of the timeline. In other words, the reasoning that unraveled the hearsay argument previously would be undone itself.
WHY A REHEARING FOR FROST IS NECESSARY
Within the majority decision, it was explained that reversing the conviction and reopening the case for a rehearing was justified for at least three major reasons:
- The prosecution brought forth no strong case against Frost, regardless of hearsay or not. DF had made numerous recorded statements, none of which included any mention of sexual abuse. On their own, the existence of these statements should have convinced the military judge that DF’s testimony that included an eventual mention of sexual abuse was unreliable.
- The defense had effectively attacked the character of Moore, showing the court that she not only had reason to improperly influence DF but that she also had a history of deceit in important situations.
- The prosecution brought forth the “improperly admitted evidence” not necessarily to prove its case against Frost, but instead to increase DF’s own credibility as a witness.
As such, the CAAF has officially reversed Frost’s conviction for this matter and the case is awaiting a rehearing. It is not known at this time when the rehearing will be scheduled. For important updates in U.S. v. Frost as its rehearing develops, be sure to revisit the blog of Joseph L. Jordan, Attorney at Law frequently for more entries.
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