24. Evidence

Last Updated: 12/12/22

CHAPTER 24

Evidence

1.       References 

2.       Introduction

3.       MJA Effective Date Information

4.       Military Rules of Evidence, Generally

5.       Relevancy and its Limits

6.       Character Evidence

7.       Uncharged Conduct

8.       Methods of Proving Character

9.       Rule 410

10.       Rule 412

11.       Rules 413 and 414

12.       Privilege Rules

13.       Witness Rules

14.       Experts and Scientific Evidence

15.       Hearsay

16.       Miscellaneous Rules

I. References

A. Military Rules of Evidence, Manual for Courts-Martial (2019 ed.).

II. Introduction

A. Implementation of the Rules

1. Prior to the codification of specific rules, the handling of evidence at courts-martial was governed by prior versions of the Manual for Courts-Martial (M.C.M.). However, those prior versions of the MCM were unclear as to which portions of those Manuals were binding, and which portions were merely explanatory.

2. The Military Rules of Evidence (MRE) were promulgated in 1980 by Executive Order 12,198. Drafted by an early version of the Joint Service Committee on Military Justice (JSC), the Rules were created with a view toward incorporating the then-recent Federal Rules of Evidence into military law. For a summary of this process and its effects, see Fredric I. Lederer, "The Military Rules of Evidence: Origins and Judicial Implementation" (1990). Faculty Publications. Paper 638. http://scholarship.law.wm.edu/facpubs/638; see also Fred Borch, The Military Rules of Evidence:  A Short History of Their Origin and Adoption at Courts-Martial, Army Law., June 2012, at 1–4.

B. Recent Modifications

1. The Military Rules of Evidence have always been similar, and in some cases identical, to their civilian federal counterparts. This is both by design and required by law, as Article 36 of the UCMJ provides that “for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts…”. 10 U.S.C. 936(a).

2. To recognize other developments in the law, and on recommendation of the JSC, the President in 2013 made numerous stylistic and substantive modifications to the Rules by Executive Order 13,643. Those changes are summarized at the beginning of the 2013 supplement to the Manual for Courts-Martial.

3. Additionally, recent years have seen Congress become increasingly active in directing changes to the Rules. In particular, the National Defense Authorization Act for fiscal year 2015 contained several changes affecting the rules of privilege and relevance. See, generally, Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015’ Pub. L. No. 113–291, 128 Stat. 3292 (2014). As a result, nearly every military rule of evidence has changed in recent years.

III. MJA Effective Date INFORMATION

A. The 2016 Military Justice Act had little impact on the Military Rules of Evidence.  Changes impacting the Military Rules of Evidence were made through Executive Order 13825 and are incorporated into the Military Rules of Evidence in the 2019 edition of the Manual for Courts-Martial.  Those changes are included below and are effective 1 January 2019.

IV. Military Rules of Evidence, Generally

A. MRE 101.  Scope.

1. Scope.  The Military Rules of Evidence are applicable to courts-martial, including summary courts-martial, to the extent and with the exceptions noted in MRE 1101. Rule 101 also provides a rule of construction, again linking military practice with its civilian counterpart.

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MRE 101. Scope

(a)  Scope. These rules apply to courts-martial proceedings to the extent and with the exceptions stated in Mil. R. Evid. 1101.

(b)  Sources of Law. In the absence of guidance in this Manual or these rules, courts-martial will apply:

(1) First, the Federal Rules of Evidence and the case law interpreting them; and

(2) Second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law.

(c)  Rule of Construction. Except as otherwise provided in these rules, the term "military judge" includes the president of a special court-martial without a military judge and a summary court-martial officer.

MRE 1101. Applicability of these rules

(a) In General. Except as otherwise provided in this Manual, these rules apply generally to all courts-martial, including summary courts-martial, Article 39(a) sessions, limited fact-finding proceedings ordered on review, proceedings in revision, and contempt proceedings other than contempt proceedings in which the judge may act summarily.

(b) Rules Relaxed. The application of these rules may be relaxed in presentencing proceedings as provided under R.C.M. 1001 and otherwise as provided in this Manual.

(c) Rules on Privilege. The rules on privilege apply at all stages of a case or proceeding.

(d) Exceptions. These rules - except for MRE 412 and those on privilege - do not apply to the following:

(1) the military judge's determination, under MRE 104(a), on a preliminary question of fact governing admissibility;

(2) pretrial investigations under Article 32;

(3) proceedings for vacation of suspension of sentence under Article 72; and

(4) miscellaneous actions and proceedings related to search authorizations, pretrial restraint, pretrial confinement, or other proceedings authorized under the Uniform Code of Military Justice or this Manual that are not listed in subdivision (a).

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2. Secondary Sources.  MRE 101 (b).  If not otherwise prescribed in the Manual or rules, courts-martial will first apply the rules of evidence recognized in the trial of criminal cases in the United States district courts; and secondly, the rules of evidence at common law.  United States v. Toy, 65 M.J. 405, 410 (2008).

B. MRE 102.  Purpose.

1. MRE 102 outlines the policy contours of the Rules of Evidence generally, and mirrors its counterpart in the Rules for Courts-Martial 102. It is taken verbatim from the Federal Rules of Evidence (FRE).

2. Though not a rule of construction per se, it has been cited for the proposition that it is “intended to aid in the construction and legitimate application of other specific Rules.” See 1 Saltzburg et al., Military Rules of Evidence Manual § 102.02[1][b] at 1–20 (8th ed. 2015). MRE 102 is mentioned in Appendix 22 (MRE Analysis, MCM 2016 ed.) only to note that it is “not a license to disregard the Rules in order to reach a desired result.” This is presumably to avoid the possibility that another affirmative rule in the MRE collides with a military judge’s notions of fairness, justice, or truth.

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MRE 102. Purpose

                  These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

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C.MRE 103.  Rulings on Evidence.

1. This rule imposes significant responsibility on counsel to raise and preserve evidentiary questions for review.

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MRE 103. Rulings on evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the military judge of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the military judge rules definitively on the record admitting or excluding evidence, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Review of Constitutional Error. The standard provided in subdivision (a)(2) does not apply to errors implicating the United States Constitution as it applies to members of the Armed Forces, unless the error arises under these rules and subdivision (a)(2) provides a standard that is more advantageous to the accused than the constitutional standard.

(d) Military Judge's Statement about the Ruling; Directing an Offer of Proof. The military judge may make any statement about the character or form of the evidence, the objection made, and the ruling. The military judge may direct that an offer of proof be made in question-and-answer form.

(e) Preventing the Members from Hearing Inadmissible Evidence. In a court-martial composed of a military judge and members, to the extent practicable, the military judge must conduct a trial so that inadmissible evidence is not suggested to the members by any means.

(f) Taking Notice of Plain Error. A military judge may take notice of a plain error that materially prejudices a substantial right, even if the claim of error was not properly preserved.

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2. Objections to evidence admitted.  MRE 103(a)(1):  Objections to evidence must be specific and timely, or the objection is waived, absent a plain error.  While citation to evidentiary rules by number is not required, objections must be sufficiently specific to make the issue known to the military judge.  If so, the issue will be preserved.  United States v. Datz, 61 M.J. 37 (2005).   While the rule does not require a moving party to present every argument in support of an objection, argument must be sufficient to make the military judge aware of the specific ground for objection in a practical rather than a formulaic manner.  United States v. Reynoso, 66 M.J. 208 (2008).

3. Where the witness’s answer is objectionable, but it has been heard by the panel, the opponent must seek a curative instruction (to disregard the testimony) or a mistrial.  Declaration of a mistrial lies within the sound discretion of the judge, United States v. McGeeney, 41 M.J. 544 (N-M. Ct. Crim. App. 1994), and should only be granted where circumstances demonstrate the necessity to prevent a manifest injustice to the accused.  United States v. Dancy, 38 M.J. 1 (C.M.A. 1993).

4. Offer of Proof.  MRE103(a)(2):  If the military judge sustains an objection to the tender of evidence, the proponent generally must make an offer to preserve the issue for appeal.  The offer should include the substance of the proffered evidence, the affected issue, and how the issue is affected by the judge’s ruling.  United States v. Means, 24 M.J. 160 (C.M.A. 1987) and United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988).

5. Repeating Objections.  Counsel do not have to repeat objections during trial if they first obtain unconditional, unfavorable ruling from the military judge in out-of-court session.  United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995).  However, a preliminary, tentative ruling may require a subsequent objection to preserve the issue for appeal.  United States v. Jones, 43 M.J. 708 (A.F. Ct. Crim. App. 1995).  MRE 103 also applies at sentencing to the admission of documents from the accused’s personnel records.  See United States v. Kahmann, 59 M.J. 309 (2004) (holding that where defense counsel failed to object, the military judge did not commit plain error in admitting a summary court-martial conviction record that did not indicate on its face whether the accused had received Booker counseling or whether mandatory review of the conviction had taken place under Art. 64).

D. MRE 105.  Limiting evidence not admissible against other parties or for other purposes.

 

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MRE 105.

If the military judge admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the military judge, on timely request, must restrict the evidence to its proper scope and instruct the members accordingly.

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1. A limiting instruction may be an appropriate alternative to exclusion of evidence.  See, e.g., United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983) (exclusion of Rule 412 evidence); United States v. Ureta, 44 M.J. 290 (1996), cert. denied, 117 S. Ct. 692 (1997) (prior inconsistent statements offered for impeachment); United States v. Barrow, 42 M.J. 655 (A.F. Ct. Crim. App. 1995) (uncharged misconduct).

2. The rule embodies the view that, as a general matter, evidence should be received if it is admissible for any purpose.  The rule places the major responsibility for the limiting instruction upon counsel.  Counsel should state the grounds for limiting the evidence outside the hearing of the members.  Counsel should offer—and the court may request—specific language for the instruction, which may be given at the time the evidence is received, as part of the general instructions, or both.

E. MRE 106.  Remainder of or Related Writings or Recorded Statements.

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MRE 106.

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time.

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1. In United States v. Rodriquez, 56 M.J. 336 (2002), the CAAF held that in the military there are two distinct rules of completeness, MRE 106 and MRE 304(h)(2).  CAAF held that MRE 106 applies when fairness demands that the rest of the evidence be considered contemporaneously with the portions of the evidence offered by the opposing side.  They adopted a standard regarding MRE 304(h)(2) that allows for admissibility of statements made by the accused when the defense introduces the remainder of a statement or statements that are explanatory or relevant to the confession or admission of the accused previously offered by the government.  This is allowed even if the statements the defense seeks to admit are otherwise inadmissible hearsay.   CAAF requires a case-by-case determination when the defense attempts to admit a series of statements as part of the original confession or admission in order to determine if they are part of an ongoing statement or a separate transaction or course of action.

2. In the context of a confession or an admission, read this rule in connection with MRE 304(h)(2) (where only part of the alleged admission or confession is introduced, the defense may introduce other portions).  Other portions admitted by the defense do not need to overcome a hearsay objection.  United States v. Benton, 54 M.J. 717 (A. Ct. Crim. App. 2001).  However, note that this has the potential to open the door to an accused’s character – the Goldwire trap.   In United States v. Goldwire, 55 M.J. 139 (C.A.A.F. 2001), the CAAF held that when defense counsel uses the rule of completeness to admit portions of their client’s statements into evidence through cross examination of a government witness they open the door to reputation and opinion testimony regarding the truthfulness of the accused.  CAAF analyzed the potential application of the rule of completeness under both the federal and military rules, as well as the common law doctrine of completeness.

3. Supplementary Statements.  In United States v. Foisy, 69 M.J. 562 (N.M. Ct. Crim. App. 2010), the accused gave a sworn statement to an NCIS agents admitting that he had sex with the victim, but insisting that it was consensual.  He also described his interactions with the victim which led him to believe that it was consensual.  Another NCIS agent took a second statement from the accused which was labeled as a “supplementary statement.”  The facts in the supplementary statement began immediately before appellant penetrated the victim.  At trial, the government admitted only the supplementary statement.  The defense attempted to admit the first statement under the rule of completeness.  The government objected and the military judge sustained the objection.  Finding the military judge erred in not allowing the defense to introduce the first statement, the Navy-Marine Court of Criminal Appeals held that, under MRE 304(h)(2), “where the Government links two statements by constructing them as a statement and a ‘supplement’ to that statement, the Government may not deconstruct those statements for the purposes of trial where the admission of the second statement standing alone would create a misimpression on the part of the fact finder as to an accused’s actual admissions.” 

V. RELEVANCY AND ITS LIMITS

A. MRE 401:  Test for relevant evidence

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MRE 401. Test for relevant evidence

Evidence is relevant if:

(a)        it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b)        the fact is of consequence in determining the action.

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1. The Main Relevancy Provisions

a) The Military Rules of Evidence have three main relevance provisions: MRE 401, 402, and 403.  MRE 401 defines what is relevant.  MRE 402 requires that evidence be relevant in order to be admitted and that irrelevant evidence be excluded.  Finally, MRE 403 allows the military judge to exclude relevant evidence which is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the panel, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

b) Justification:  Relevancy requirements help save time, narrow the topics the parties have to develop in preparation for trial, and increase the perceived legitimacy of courts-martial by ensuring that outcomes based on information most people would believe have something to do with the issues at trial. 

2. Establishing Relevancy.  The logical starting place when evaluating any issue at trial is the concept of relevance.  Military Rule of Evidence 401 is taken without change from the Federal Rule and adopts a logical approach to relevance.  MRE 401 permits both circumstantial and direct evidence to satisfy the relevancy criteria.  A relevancy objection, although often overlooked, is frequently the most valid objection available to counsel.  Military courts have used MRE 401 to expand the amount of information available to the members.  See, e.g., United States v. Tomlinson, 20 M.J. 897 (A.C.M.R. 1985) (MRE 401 was “intended to broaden the admissibility” of most evidence.) 

3. Requirements of Counsel.   Counsel should be prepared to articulate what issue the offered evidence relates to and show how it rationally advances the inquiry about that issue by doing the following: 

a) Describe the evidence;

b) Explain its nexus to the consequential issue in the case; and

c) Indicate how the offered evidence will establish the fact in question.

4. The test under MRE 401 for logical relevance (as opposed to legal relevance discussed under MRE 403 later in this outline) is whether the item of evidence has any tendency whatsoever to affect the balance of probabilities of the existence of a fact of consequence, and is a very low threshold.  United States v. White, 69 M.J. 236 (2010). 

a) United States v. Schlamer, 52 M.J. 80 (1999).  Accused was charged with the premeditated murder.  Victim was found with her throat cut.  At trial, the government introduced pictures and writings seized from the accused.  In these documents, the accused set out in graphic detail his desires to kill women, have sex with them, and commit other violent acts.  These writings did not mirror the actual crime, and defense claimed that they were not relevant.  The military judge admitted the evidence over the defense objection.  The CAAF held Rule 401 is a low standard and since the defense was trying to portray the accused as a docile person, this evidence had some tendency to show the darker side that was consistent with his confession.

b) United States v. Berry, 61 M.J. 91 (2005).  Relevant evidence under MRE 401 is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Evidence of a prior uncharged sexual assault by an accused involving a younger victim satisfied the relevance prong of the threshold test for the admission of uncharged sexual assault in a case where the accused was charged with forcible sodomy of a victim who was drunk, as it has some tendency to make it more probable that the accused committed a nonconsensual act against a vulnerable person.

5. Relationship between MRE 401 and the Due Process Clause.  In United States v. Brewer, 61 M.J. 425 (2005), the CAAF held that in a urinalysis case, the defense was entitled to introduce a “mosaic alibi” defense to counter the permissive inference of wrongful use, even though such evidence would violate MRE 404 and 405. 

B. Relationship Between MRE 401 and 104.

1. Preliminary Questions.  MRE 104 provides that the military judge must decide preliminary questions of admissibility of evidence.  In addressing these preliminary questions, the military judge is not bound by the rules of evidence, except those with respect to privilege. 

2. When ruling on a relevancy objection, the military judge has four basic options:

a) Exclude the evidence;

b) Admit all the evidence;

c) Admit all the evidence subject to a limiting instruction; or

d) Admit part of the evidence and exclude part.

3. Threshold.  Although the primary responsibility for showing the relevancy of a particular piece of evidence rests with the proponent, it is a very low hurdle to overcome.  All that the military judge is required to determine in order to rule a piece of evidence is relevant, is that a rational member could be influenced by the evidence in deciding the existence of a fact of consequence.  The evidence only has to be capable of making determination of the fact more or less probable than it would be without the evidence.

4. Relevancy that Depends on a Fact.  MRE 104(b) deals with the situation where the relevancy of a piece of evidence is conditioned upon proof of a predicate fact.  United States v. Bins, 43 M.J. 79 (1995).  The military judge’s responsibility in these cases is not to decide the credibility of evidence or announce a subjective belief whether a proponent has proven the predicate fact.  Instead, the judge only decides whether counsel has introduced enough evidence so that the panel could reasonably conclude the existence of the conditional fact.  In other words, the judge decides only if there is a sufficient factual predicate for admissibility of the evidence; weight and credibility of the evidence are matters for the members.  United States v. Kelly, 45 M.J. 275 (1996).  Huddleston v. United States, 485 U.S. 681 (1988) (holding that neither FRE 104 nor 404(b) requires the trial judge to determine by a preponderance of the evidence that a ‘similar act’ was committed; the trial judge is only required to consider all of the evidence offered and decide whether the jury could reasonably find the similar act was committed).

5. The military judge should ask the following questions:

a) Will the members find it helpful in deciding the case accurately?  If no, then the judge excludes the evidence.  If yes, then the judge asks another question;

b) Is there sufficient evidence to warrant a reasonable member in believing the evidence?  If no, then the judge excludes the evidence.  If yes, then the judge admits the evidence.

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MRE 402. General admissibility of relevant evidence

(a)  Relevant evidence is admissible unless any of the following provides otherwise:

(1)        the United States Constitution as it applies to members of the Armed Forces;

(2)        a federal statute applicable to trial by courts-martial;

(3)        these rules; or

(4)        this Manual.

(b)  Irrelevant evidence is not admissible.

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6. Exclusion of relevant evidence.  The plain language of MRE 402 strongly favors admission of relevant evidence.  However, irrelevant evidence is never admissible because it does not assist the trier of fact in reaching an accurate and fair result. The rule requires the court to address three separate questions before admitting evidence.

a) Does the evidence qualify under MRE 401’s definition?

b) Does the evidence violate any of the five prohibitions listed in MRE 402?

c) Does the evidence satisfy any provision requiring a MRE 403 related judicial assessment of the probative value of the evidence?  See, e.g., MRE 403, 412, 413, 414, 803(6), 804(b)(5), 807, and 1003.

C. Relationship Between MRE 401 and 403.

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MRE 403. Excluding relevant evidence for prejudice, confusion, waste of time, other reasons

The military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence.

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1. Unfair Prejudice.  Evidence is subject to exclusion if the opposing counsel can successfully convince the military judge that the risk of unfair prejudice substantially outweighs it probative value.  MRE 403 is one of the most often cited rules by counsel.  The rule is particularly important in the law of evidence since it is a rule that empowers the military judge to exclude probative evidence if it can be said to be unfairly prejudicial. 

a) Standard.  In a sense, all evidence that either the government or defense seeks to introduce is intended to prejudice the opponent.  If it didn’t prejudice the opponent, one could reasonably question the value of seeking to admit the evidence. The question under MRE 403 is really one that addresses how the factfinder will view the evidence. It is only when a factfinder might react to the proffered evidence in a way (usually emotional) that is not supposed to be part of the evaluative process that the reaction is considered unfairly prejudicial.  United States v. Owens, 16 M.J. 999 (A.C.M.R. 1983) (describing unfair prejudice as existing “if the evidence is used for something other than its logical, probative force”). 

(1) PROPER PREJUDICE EXAMPLE:  SPC Smiffy is charged with assault upon PVT Jones.  The government seeks to introduce evidence from CPT Honest who will testify he heard SPC Smiffy say, “The next time I see PVT Jones he is a dead man.”  The defense might try to keep the testimony out under a number of justifications, but under MRE 403, although the evidence is prejudicial and a member may use it to determine that SPC Smiffy likely assaulted PVT Jones, this type of prejudice is proper because it comes from the member’s belief that the accused committed the charged offense. 

(2) IMPROPER PREJUDICE EXAMPLE:  Same facts as above except CPT Honest is going to testify he heard SPC Smiffy say, “The next time I see PVT Jones he is a dead man, because I belong to the “bare knuckles gang” that encourages members to beat people up.”  Under MRE 403, the defense would have a much better argument to keep out the portion of the statement regarding SPC Smiffy’s gang membership.  The risk of admitting the entire statement is that the members may develop a negative feeling about SPC Smiffy based upon their feelings about individuals that belong to a gang.  Those impressions would be an example of unfair prejudice since they are unrelated to the probative value the gang information has with respect to the charged offense.  Instead, they flow from the members’ reactions to information about the accused that would cause loathing whether or not it was linked to the events of the alleged offense.  The risk of the members believing the accused is a wretch that deserves punishment no matter what the evidence is regarding the assault is an example of unfair prejudice under MRE 403.

b) Legal Relevance.  The probative value of any evidence cannot be substantially outweighed by any attendant or incidental probative dangers.  Among the factors specifically mentioned in the rule are “the danger of unfair prejudice, confusion of the issues, or misleading the members.”  To determine whether the risk of unfair prejudice substantially outweighs the probative value of evidence, the military judge is required to do some kind of weighing.  Although there is not a clear test for the military judge to follow, some factors the military judge might consider include:

(1) the strength of the probative value of the evidence (i.e., a high degree of similarity);

(2) the importance of the fact to be proven;

(3) whether there are alternative means of accomplishing the same evidentiary goal (consider in connection with defense concessions to 404(b) uncharged misconduct); and

(4) the ability of the panel to adhere to a limiting instruction.   

(5) Berry Factors - United States v. Berry, 61 M.J. 91 (2005).  When conducting a MRE 403 balancing test, a military judge should consider the following factors:  the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the factfinder; the time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties.

c) MRE 403 favors admissibility.  A military judge will exclude evidence on a legal relevance theory only when the probative values is “substantially outweighed” by the accompanying probative dangers.  United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981) (stating that striking a balance between probative value and prejudicial effect is left to the trial judge and that the balance “should be struck in favor of admission”).  The passive voice suggests that it is the opponent who must persuade that the prejudicial dangers overcome the probative value.  United States v. Leiker, 37 M.J. 418 (C.M.A. 1993) (cautioning defense counsel that failure to make a satisfactory offer of proof prohibits an appellate court from weighing the evidence’s probative value against its possibility for causing undue delay or waste of time).

d) MRE 403 is the rule by which legal relevance is determined.  While MRE 403 has broad application throughout the Military Rules of Evidence, some commentators have noted that “its greatest value may be in resolving MRE 404(b) issues “because of the low threshold of proof required to establish extrinsic events.  See 1 Saltzburg et al., Military Rules of Evidence Manual § 102.02[1][b],  at 4–40 (8th ed. 2015).    Editorial Comment, MRE 403, Military Rules of Evidence at Section 403.03[7], at 4-30 (5th ed. 2003).

e) MRE 403 and special findings.  The military judge should always make special findings when resolving a MRE 403 objection, even without a request to do so by counsel.  United States v. Bins, 43 M.J. 79 (1995) (criticizing the military judge for stating that he had performed the balancing test required by MRE 403, when all he really did was recite the MRE's language).  Special findings are beneficial for at least two reasons:

(1) Appellate courts will be able to evaluate the criteria and thought process used by the military judge.  This will reduce the likelihood of reversal for abuse of discretion.  United States v. Hursey, 55 M.J. 34 (2001) (describing that when a military judge conducts a proper MRE 403 balancing test, the ruling will not be overturned unless there is a clear abuse of discretion).

(2) Special findings provide counsel with an opportunity to correct erroneous determinations by the military judge at the trial level, instead of waiting months or years later to do the same on appeal.

VI. Character Evidence

A. Character Evidence Generally Prohibited.

1. As a general rule, the law disfavors character evidence.  This principle is embodied in MRE 404(a)(1), which prohibits the use of evidence of a person’s character to prove that the person acted on a specific occasion in conformity with that character. This general rule of prohibition is derived from the common law, where “[c]ourts… almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt…. The State may not show the defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.”  Michelson v. United States, 335 U.S. 469, 475 (1948) (footnotes omitted) (citation omitted).

2. There are two main justifications for the prohibition on propensity:

a) Propensity evidence may lead to the wrong outcome in a court-martial. 

b) Propensity evidence almost always carries a significant risk of unfair prejudice.

3. The MREs generally break character evidence into two basic types:  character traits under MRE 404(a), and specific instances of character conduct under Mil. R. Evid. 404(b).  Both subsections of the rule prohibited the “propensity inference”– that a person’s character (either as a trait, or in the form of specific instances of past conduct) suggests that the person did something because of a propensity to do such things. 

4. While the law embraces a general rule prohibiting introduction of propensity evidence, there are exceptions to that general rule.  The exceptions generally fall into three categories:

a) Narrow exceptions for character evidence of an accused or victim (MRE 404(a)(2)), including good character as a defense, and a victim’s character for peacefulness in homicide or assault cases;

b) Broad exceptions for the character of an accused in sexual assault and child molestation cases (MRE 413 and 414);

c) Tailored exceptions for witnesses (MRE 404(a)(3)); this rule provides exceptions for witnesses’ character by incorporating the requirements of Rules 607–609).

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MRE 404(a). Character evidence

(a)  Character Evidence.

(1)  Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2)  Exceptions for an Accused or Victim

(A)  The accused may offer evidence of the accused's pertinent trait and, if the evidence is admitted, the prosecution may offer evidence to rebut it. General military character is not a pertinent trait for the purposes of showing the probability of innocence of the accused for the following offenses under the UCMJ:

(i)  Articles 120–123a;

(ii)  Articles 125–127;

(iii) Articles 129–132;

(iv) Any other offense in which evidence of general military character of the accused is not relevant to any element of an offense for which the accused has been charged; or

(v)  An attempt or conspiracy to commit one of the above offenses.

(B)  Subject to the limitations in MRE 412, the accused may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecution may:

(i)  offer evidence to rebut it; and

(ii) offer evidence of the accused's same trait; and

(C)  In a homicide or assault case, the prosecution may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3)  Exceptions for a Witness. Evidence of a witness's character may be admitted under MRE 607, 608, and 609.

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B. Permissible Propensity Inference

1. While character evidence is generally prohibited, there are specific exceptions which allow the use of character evidence for its “propensity purpose”:  using evidence to show a person acted in conformity with their character.  The MRE lists these exceptions based on the status of the person offering the evidence, and about whom the evidence is offered. 

a) Pertinent Character Traits Offered by the Accused: 

(1) The accused was permitted under MRE 404(a) to offer any pertinent character trait which makes it unlikely that she committed the charged offense.  In other words, this is circumstantial evidence of conduct.  “Pertinent” in 404(a) means the same thing as “relevant” as that term is defined in MRE 401. 

(2) When submitting the request for reputation or opinion witnesses, the proffer should include the following foundational elements: the name of the witness, whether the witness belongs to the same community or unit as the accused, how long the witness has known the accused, whether he knows him in a professional or social capacity, the character trait known, and a summary of the expected testimony.  United States v. Breeding, 44 M.J. 345 (1996).

(3) The formula could be applied in the following scenarios:

Offense                   Pertinent Character Trait

Larceny                 Trustworthiness or Honesty

Drunkenness           Sobriety

Assault                   Peacefulness

b) General Good Military Character of the Accused—Past and Present

(1) In the past, the MRE (and the courts) held a permissive view of a military accused’s general good military character as a pertinent character trait if there was a nexus, however strained or slight, between the crime circumstances and the military.  In most cases this meant a likelihood that the defense would include a “good soldier defense” by presenting the accused’s good military character evidence.  United States v. Wilson, 28 M.J. 48 (C.M.A. 1989).  Consider the impact of United States v. Foster, 40 M.J. 140 (C.M.A. 1994) (service discrediting behavior or conduct prejudicial to good order inherent in all enumerated offenses).

(2) The National Defense Authorization Act for Fiscal year 2015 directed numerous changes to the MRE, including a modification to the admissibility of general good military character. In particular, the new Rule notes that the general good military character of an accused is not a pertinent (meaning not relevant to, and therefore not admissible) trait for the following offenses:

(a) Articles 120–123a;

(b) Articles 125–127;

(c) Articles 129–132;

(d) Any other offense in which evidence of general military character of the accused is not relevant to any element of an offense for which the accused has been charged; or

(e) An attempt or conspiracy to commit one of the above offenses.

(3) NOTE: the full effect of this change in the law on lesser included offenses remains uncertain.  Assault consummated by a battery under Article 128 can be a lesser included offense in a sexual assault case, meaning that a special instruction or series of instructions may be necessary to properly advise the members on when, and for what offenses, general good military character may be considered. To determine whether general good military character may be admissible, first determine whether an offense for which the introduction of general good military character is permitted is a lesser included offense of a charged offense. If that’s the case, then general good military character may be admissible; prudent counsel will request a special instruction from the military judge on that evidence.

c) Rebuttal by Government of Good Character of Accused – if an accused introduces good military character evidence (or any other pertinent character trait evidence), the government is allowed to rebut it.  NOTE:  If a defense counsel loses a motion in limine to preclude the government from cross-examining character witnesses regarding accused’s bad acts, a tactical election not to present good character case probably will bar review.  United States v. Gee, 39 M.J. 311 (C.M.A. 1994). 

(1) Rebuttal by the government is proper when the accused claims that he or she is not the sort of person who would do such a thing.  “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.”  Michelson v. United States, 335 U.S. 469, 479 (1948); United States v. Johnson, 46 M.J. 8 (1997).

(a) But see, United States v. Trimper, 28 M.J. 460 (C.M.A. 1989) cert. denied, 493 U.S. 965 (1989).  Even if the accused opens the door to uncharged misconduct (here by claiming to have never used cocaine), the judge must decide whether the unfair prejudicial effect of the rebuttal evidence substantially outweighs its probative value.  MRE 403.  See also, United States v. Graham, 50 M.J. 56 (1999).  The CAAF held it was reversible error to allow trial counsel to question accused about prior positive urinalysis, even though the accused testified he was surprised when he tested positive for THC.

(b) United States v. Goldwire, 55 M.J. 139 (2001), the CAAF held that when defense counsel attempt to develop their theory of the case through the cross examination of government witnesses, they may open the door to reputation and opinion testimony regarding truthfulness of the accused.  In Goldwire, the trial defense counsel cross-examined the CID agent on exculpatory statements made by the accused during the interview conducted by the CID agent.  The appellant argued on appeal that this cross-examination was allowed under the rule of completeness and that it did not open the door to reputation and opinion testimony concerning the accused.  The CAAF disagreed.

(2) Accused’s Sexual Propensities – proof of an accused’s sexual propensities in sex offense courts-martial is specifically allowed, provided certain requirements are met and special instructions given.  MRE 413 and 414 discuss these rules in greater detail later in this outline.

d) Character of Victim – subject to MRE 412, an accused is allowed to offer evidence of a pertinent character trait of an alleged victim in order to show that it makes it likely the victim acted in a certain way on a specific occasion. MRE 404(a)(1) and (2).  For example, the accused is permitted, when relevant, to show that the victim was the aggressor by introducing evidence of the victim’s character for violence.  United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989).

e) Rebuttal by the Government – if an accused offers evidence of a victim’s character, the government is permitted to rebut that evidence:

(1) Where an accused offers a pertinent character trait of the victim, the government may rebut the accused’s evidence with character evidence of the victim.  MRE 404(a)(2)(A).

(2) Where an accused offers the character trait of the victim, that “opens the door” to government evidence of the same character trait, if relevant, of the accused (even without the accused first bringing his or her character into evidence).   MRE 404(a)(1). 

(3) In homicide and assault cases, the government may introduce character evidence to prove the peaceful character of the victim to rebut a claim made in any way that the victim was the first aggressor.  MRE 404(a)(2), United States v. Pearson, 13 M.J. 922 (N.M.C.M.R. 1992) (victim’s character for peacefulness relevant after accused introduces evidence that victim was the aggressor).

f) Impeachment of a Witness – when an issue is whether a witness testified truthfully, evidence about that witness’s character for truth-telling is permitted to support an inference that the witness has acted at trial in conformity with the witness’s usual respect for truth.  MRE 405(a) and 608.

2. Character Evidence for Non-propensity Purpose – If the evidence has relevance independent of propensity, it may be admissible.  For example, evidence that someone charged with an offense has committed similar offenses in the past could lead a trier of fact to conclude the person is a bad person and criminally inclined.  If this were the only purpose for the evidence given by the government, it would not be a permissible use of character evidence (unless offered under MRE 413 or 414).  If, however, the evidence were offered to prove the accused possessed the knowledge necessary to commit the charged offense in the current court-martial, then admissibility would be possible.  See “KIPPOMIA” under MRE 404(b) (treated in greater detail later in this outline).

VII. Uncharged conduct

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MRE 404(b):  Crimes, Wrongs, or Other Acts

(b)  Crimes, Wrongs, or Other Acts.

(1)  Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2)  Permitted Uses; Notice. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by the accused, the prosecution must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecution intends to offer at trial; and

(B)  do so before trial - or during trial if the military judge, for good cause, excuses lack of pretrial notice.

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A. Uncharged Conduct Generally

1. Understanding the MRE:  Although character evidence is generally inadmissible to prove action in conformity with that character (propensity) on a specific occasion (except in those exceptions noted elsewhere in this outline), it is admissible if introduced for a non-propensity purpose.  Non-propensity evidence (uncharged misconduct) is not offered to prove that an individual acted in conformity with that individual’s character on a particular occasion.  Rather, this evidence is offered to prove other relevant things like Knowledge, Intent, Plan, Preparation, Opportunity, Motive, Identity, and Absence of Mistake (KIPPOMIA). Mil. R. Evid. 404(b)(2).  The list in MRE 404(b)(2) is not an exhaustive one:  The “sole test” for admissibility of uncharged misconduct is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and therefore to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.  It is unnecessary that relevant evidence fit snugly into a pigeon hole provided by MRE 404(b).  United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989).

2. MRE 404(b) is an “inclusive rule” which permits admission of extrinsic evidence unless the sole purpose is to show criminal disposition.  If the proponent can articulate a non-propensity theory of logical relevance for the uncharged misconduct evidence, the military judge will have discretion to admit or exclude the evidence after applying MRE 403.

3. Some Non-propensity Theories of Relevance.

a) Motive.  Motive supplies the reason that nudges the will and prods the mind to indulge in criminal intent.  Such evidence may be offered to prove that the act was committed, or to prove the identity of the actor, or to prove the requisite mental state.

(1) Two inferences are required: 

(a) first, the act(s) must support an inference of some mental state;

(b) second, the mental state must be causally related to an issue in the case.  This is an area which is difficult to distinguish, analytically, from propensity. 

(2) Some examples:

(a) United States v. Watkins, 21 M.J. 224, 225 (C.M.A. 1986) (motive evidence relevant to show a person’s action as an outlet for emotions.  Prior acts of conduct must be of a type which reasonably could be viewed as the expression and effect of the existing internal emotion, and same motive must exist at time of subsequently charged acts).

(b) United States v. Phillips, 52 M.J. 268 (2000).  Accused charged with BAQ fraud and entering into a sham marriage in order to collect BAQ payments.  Court held that evidence of the accused’s homosexual relationship was admissible under MRE 404(b) to show motive and intent.

b) Intent:  Negates accident, inadvertence, or causality.  Intent differs from other named MRE 404(b) exceptions because, typically, it is an ultimate issue in the case.  When considering whether uncharged misconduct constitutes admissible evidence of intent under MRE 404(b), a military judge should consider “whether … [the accused’s] state of mind in the commission of both the charged and uncharged acts was sufficiently similar to make the evidence of the prior acts relevant on the intent element of the charged offenses.” United States v. McDonald, 59 M.J. 426, 430 (2004).   According to the CAAF, the relevancy of the other crime is derived from the accused’s possession of the same state of mind in the commission of both offenses.  The state of mind does not have to be identical, but must be sufficiently similar to make the evidence of the prior acts relevant on the intent element of the charged offenses.  The link between the charged and uncharged misconduct must permit meaningful comparison.   

(1) The “doctrine of chances.”  United States v. Merriweather, 22 M.J. 657, 661 (A.C.M.R. 1986) (“[T]he sheer number of injuries suffered by the victim over a relatively short period of time would have led common persons to conclude that the charged injury was less likely to have been accidental, thus rebutting the inference of possible accident which arose from the testimony elicited by the defense counsel”).

(2) United States v. Sweeney, 48 M.J. 117 (1998). Accused charged with stalking his current wife.  Court allowed evidence that accused stalked former wife in a similar manner.  Court said uncharged misconduct was probative of intent to inflict emotional distress.

(3) United States v. Henry, 53 M.J. 108 (2000).  At his trial for rape of his stepdaughters, evidence was introduced that the accused made her watch pornographic videos with him.  No videos were found in the home, but magazines containing video order forms were found and introduced at trial under MRE 404(b).  The CAAF affirmed holding that this evidence was relevant to show intent and that the accused may have groomed his victim.  The court also said this evidence was relevant to impeach the victim’s in-court testimony because she was now recanting her allegations of rape.

(4) United States v. Hays, 62 M.J. 158 (2005), the CAAF affirmed a military judge’s decision to admit the appellant’s uncharged acts as evidence of intent. The appellant was charged with solicitation to commit the rape of a minor, and the government introduced numerous items of child pornography and explicit e-mails from the appellant’s computer to demonstrate intent to commit the offense.

(5) United States v. Harrow, 65 M.J. 190 (2007).  Appellant was charged with the unpremeditated murder of her five-month-old daughter.  The military judge permitted three witnesses to testify about previous incidents where the appellant was abusive to her daughter.  The military judge correctly applied the three-part test found in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) to determine admissibility of previous incidents of flicking, thumping, and biting reflected a state of mind indicating that the appellant responded to her daughter’s irritating, yet normal, behavior with deliberate, inappropriate physical force under MRE 404(b).  The CAAF determined that the evidence was relevant to show both absence of mistake and intent.  Although the appellant did not argue accident, evidence produced at trial by the appellant supported an argument that the injuries might have been accidentally inflicted.  The government was entitled to rebut this argument.   Likewise, although the appellant did not defend on the ground of either lack of requisite intent or accident, the CAAF held that “evidence of intent and lack of accident may be admitted regardless of whether a defendant argues lack of intent because every element of a crime must be proven by the prosecution.”  Id. at 202.

c) Plan:  Connotes a prior mental resolve to commit a criminal act, and implies preparation, and working out the particulars (time, place, manner, means, and so forth).  Plan may prove identity, intent, or the actual criminal act.  Evidence of plan must actually establish a plan.  The CAAF will examine the relationship between the victims and the appellant, ages of victims, nature of the acts, situs of the acts, circumstances of the acts, and time span.  If the CAAF finds the dissimilarities too great to support a common plan theory, it will not support admitting the uncharged misconduct. 

(1) Some decisions have been quite liberal in admitting uncharged misconduct evidence under the rubric of plan.  See, United States v. Munoz, 32 M.J. 359 (C.M.A. 1991), cert. denied, 502 U.S. 967 (1991) (where the “age of the victim, the situs of the offense, the circumstances surrounding their commission, and the fondling nature of the misconduct” were similar to sexual misconduct of the accused 12 years earlier, the evidence was admissible to show a plan to sexually abuse his children (per Judge Sullivan). 

(2) The CAAF may be applying the brakes to the practice of using old acts of uncharged misconduct to prove plan under MRE 404(b).  See, United States v. McDonald, 59 M.J. 426, 430 (2004) (holding that a military judge abused his discretion in admitting 20-year-old acts of uncharged misconduct committed when the appellant was 13 years old to establish a common plan to commit charged acts of sexual misconduct against the appellant’s daughter. 

d) Identity:  The government may use modus operandi evidence to establish the identity of the accused.

(1) A high degree of similarity between the extrinsic act and the charged offense is required, so similar as to constitute “a signature marking the offense as the handiwork of the accused.”  United States v. Gamble, 27 M.J. 298, 305 (C.M.A. 1988).

e) Consciousness of Guilt:

(1) In United States v. Rhodes, 61 M.J. 445 (2005), the military judge admitted evidence of a meeting between a key government witness and the appellant to show the appellant’s consciousness of guilt.  Shortly after the meeting, the witness manifested a sudden memory loss pertaining to his potential testimony.  The CAAF reversed, holding that, while the evidence could have been admitted to evaluate the truthfulness of the witness’s claim of memory loss, it was not admissible to show appellant’s consciousness of guilt. However, consciousness of guilt may be admissible in some circumstances.  

(2) In United States v. Staton, 69 M.J. 228 (C.A.A.F. 2010), the court held that prosecutor intimidation, where the accused drove his car aggressively towards the trial counsel in the commissary parking lot, is probative of consciousness of guilt, and that a carefully tailored instruction appropriately mitigated defense concerns that the evidence would be used for the wrong purpose.  The Court used the Reynolds test to determine admissibility.

B. The Reynolds Test

1. In 1989, the Court of Military Appeals in United States v Reynolds, 29 M.J. 105 (C.M.A. 1989), announced a 3-part test to determine admissibility of uncharged misconduct:

a) Does the evidence reasonably support a finding that the appellant committed the prior crimes, wrongs, or acts?

(1) Identify the “other act” and show who did it.  This is a question of conditional relevancy, and governed by MRE 104(b).  The judge is required only to consider the evidence offered and decide whether the panel reasonably could find that the “similar act” was committed by the accused. 

(2) In determining whether the government has introduced enough evidence, the trial court neither weighs credibility nor makes a finding that the government has proven the conditional fact by a preponderance of the evidence.  The court simply examines all the evidence in the case and decides whether the panel members could reasonably find the conditional fact.  See Huddleston v. United States, 485 U.S. 681 (1988) (preliminary finding by the court that the government has proven the act by a preponderance of the evidence is not required by FRE 104(a); United States v. Castillo, 29 M.J. 145, 151 (C.M.A. 1989).

b) Does the evidence make a fact of consequence in the case more or less probable?   What inferences and conclusions can be drawn from the evidence?  If the inference intended includes one’s character as a necessary link, the past bad act evidence is excluded.

c) Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice?  

C. When Properly Admitted

1. United States v. Hays, 62 M.J. 158 (2005).  After being convicted of possessing child pornography and soliciting the rape of a child, the accused appealed on grounds that the introduction of uncharged misconduct in the form of emails in which he solicited pictures of child pornography was improper.  The evidence included emails and pictures from the appellant discussing and showing children and adults engaging in sexual activity.  The defense objected under MRE 401 and 403.  The CAAF focused on the third Reynolds prong.  Although the pictures and language in the e-mails were offensive, the CAAF believed that this was the nature of much of the evidence in cases involving child pornography.  See United States v. Garot, 801 F.2d 1241, 1247 (10th Cir. 1986) (noting that defendants in child pornography cases unavoidably risk the introduction of evidence that would offend an average juror).  The CAAF determined that in light of the nature of the offense and the other evidence admitted, the prejudicial impact of the admitted exhibits did not substantially outweigh their probative value in demonstrating appellant’s intent and motive to solicit sex with a child.  See United States v. Acton, 38 M.J. 330, 334 (C.M.A. 1993) (explaining that any prejudicial impact due to the “shocking nature” of a pornographic video depicting incest was diminished because the same conduct was already before the court members).

2. United States v. Harrow, 62 M.J. 649 (A.F. Ct. Crim. App. 2006).  After conducting a detailed Reynolds analysis, the AFCCA affirmed the introduction of prior instances of “flicking, biting, and thumping” the child in a shaken baby syndrome death case, finding the prior incidents demonstrated the state of mind of the accused and were sufficiently similar to pass the second Reynolds prong.  The AFCCA went on to note “that, generally speaking, MRE 404(b) is interpreted more restrictively in military jurisprudence than its counterpart in other federal courts.  In applying this jurisprudence, it is clear that military decisions are very fact specific, often based upon the totality of the circumstances, rather than granting the military judge broad discretion.”  Harrow, 62 M.J. at 660; See e.g., Hays, 62 M.J. 158 (2005); United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005); Rhodes, 61 M.J. 445 (2005); and Diaz 59 M.J. at 79 (2003).   The interesting dicta on the difference between MRE 404(b) and F.R.E. 404(b) notwithstanding, the Harrow court also mentions that 404(b) is a “rule of inclusion, not exclusion.”  Harrow, 62 M.J. at 659.  In a subsequent appeal, CAAF ignored the AFCCA dicta and instead focused on Reynolds’s second prong, analyzing whether the evidence was relevant to show the appellant’s intent or absence of mistake.  United States v. Harrow, 65 M.J. 190 (2007).

3. United States v. Booker, 62 M.J. 703 (A.F. Ct. Crim. App. 2006).  In Booker, the government sought admission of evidence to show an accused’s consciousness of guilt. This case generally stands for the principle that, so long as the evidence is offered for a purpose other than to show the accused’s predisposition to commit the crime, evidence may be admitted under MRE 404(b).  The relevant evidence need not fit exactly into one of the pigeon holes described under MRE 404(b).

4. Admissibility of Post-Offense Misconduct.  Evidence of an accused’s crack-related activities occurring after the charged offense was admissible to show intent and knowledge as to earlier offense.  United States v. Latney, 108 F.3d 1446 (D.C. Cir. 1997).  But see United States v. Matthews, 53 M.J. 465 (2000) (holding that evidence of a hot urinalysis that occurred after the charged wrongful use could not be used to show knowing use on the date of the charged offense).

5. Effect of an Acquittal on Admissibility of MRE 404(b):  In United States v. Mundell, 40 M.J. 704 (A.C.M.R. 1994), the Army appellate court applied earlier precedents in United States v. Hicks, 24 M.J. 3 (C.M.A. 1987) and Dowling v. United States, 493 U.S. 342 (1990) to uphold the introduction of other acts for which the accused had been previously acquitted. “[C]ollateral estoppel does not preclude using otherwise admissible evidence even though it was previously introduced on charges of which an accused has been acquitted.” (Hicks, 24 M.J. at 8 (Cox, J., concurring)).

D. Limiting the Admissibility

1. In United States v. Diaz, 59 M.J. 79 (2003), the government introduced evidence of several other injuries the appellant had allegedly inflicted on his daughter to establish a “pattern of abuse” that would help establish that the death of his daughter was a homicide and appellant was the perpetrator.  The CAAF applied the Reynolds test and concluded that the uncharged misconduct was improperly admitted: (1) The government failed to establish that the accused had inflicted the other injuries on his daughter; (2) the evidence did not make a fact of consequence more or less probable because the accused’s defense was a general denial and a claim that the death was due to unknown causes; and (3) when viewed in the light of improper opinion testimony that was also admitted at trial, the evidence was substantially more prejudicial than probative.

2. United States v. McDonald, 59 M.J. 426 (2004).  Applying the second prong of Reynolds, CAAF held that evidence of appellant’s uncharged acts was not logically relevant to show either a common plan or appellant’s intent.  The CAAF concluded that the military judge abused his discretion in admitting the uncharged acts to establish a common plan due to how dissimilar the uncharged acts were to the charged offenses.  The CAAF focused on the fact the appellant was 13 years of age at the time of the uncharged acts, rather than a 33-year-old adult; the uncharged acts were committed in the home of his stepsister, where he was visiting, while the charged acts occurred where he was the head of the household; the uncharged acts were with a stepsister who was about five years younger, rather than with a young stepchild under his parental control, who was about 20 years younger.  The CAAF also held the uncharged acts were not relevant to show intent.  The CAAF focused on the fact the appellant was a 13-year-old child at the time of the uncharged acts, and a 33-year-old married adult at the time of the charged acts.  Absent evidence of that 13-year-old adolescent’s mental and emotional state, sufficient to permit meaningful comparison with appellant’s state of mind as an adult 20 years later, the CAAF held that the military judge’s determination of relevance on the issue of intent was “fanciful and clearly unreasonable.”

3. United States v. Rhodes, 61 M.J. 445 (2005).  The CAAF reversed the affected findings and sentence after holding that the military judge abused his discretion in applying the third prong of the Reynolds test.  The case involved a government witness who suddenly lost his memory after speaking with the appellant shortly before trial.  The witness had given a confession implicating himself and the appellant in drug offenses.  The trial counsel wanted to offer evidence of the previous meeting to argue the appellant had intimidated the witness.  The CAAF determined that the military judge did not err by allowing the government to enter evidence about the meeting between the appellant and the government witness.  The Court concluded this evidence placed the memory loss in its proper context.  However, the military judge did err when he instructed the members that they could use the evidence to prove consciousness of guilt on the appellant’s part.  The CAAF believed the military judge’s instruction erroneously allowed the Government to suggest that the Appellant was at fault for a key government witness’s memory loss (other factors could have contributed to the memory loss, such as the significant time between the confession and trial).  “When evidence is admitted under MRE 404(b), the [members] must be clearly, simply, and correctly instructed concerning the narrow and limited purpose for which the evidence may be considered.”

4. United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005).  Military judge abused his discretion by admitting uncharged misconduct evidence.  Although not expressly stated in the opinion, the military judge’s decision failed the first prong of the Reynolds test.  The CAAF determined that the admission was harmless.  When a military judge erroneously admits uncharged misconduct, that decision will not be overturned “unless the error materially prejudices the substantial rights of the accused.”  UCMJ, art. 59(a).  The harmlessness of the error will be evaluated by “‘weighing: (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.’”  McDonald, 59 M.J. at 430, citing United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.1999).

5. United States v. Thompson, 63 M.J. 228 (2006).  The Appellant was convicted of wrongful use, possession and distribution of marijuana.  The uncharged misconduct at issue on appeal involved statements by the Appellant about his preservice drug use. The appellant maintained the uncharged misconduct served no legitimate purpose and merely painted him as a habitual drug user.  Focusing again on the second Reynolds prong, CAAF found that Thompson did not raise the issues of lack of knowledge or mistake of fact regarding marijuana.  Although the defense counsel referred to the Appellant as “naïve” and “young” in his opening statement, this description was never tied to marijuana or tied to anything that caused the Appellant to misapprehend any fact of consequence.  Because the military judge admitted the uncharged acts evidence for the purpose of disproving lack of knowledge or mistake of fact, that evidence served no relevant purpose.  Since it was not relevant, the evidence failed the second prong of the Reynolds analysis.  The evidence did not make a fact of consequence more or less probable by the existence of the evidence.

6. Uncharged Acts During Sentencing:  Admissibility of uncharged misconduct during presentencing is controlled by MRE 1001(b)(4), not MRE 404(b).  MRE 404(b) evidence which may have been admissible on the merits is not admissible during presentencing unless it constitutes aggravating circumstances within the purview of Rule 1001(b)(4).

7. Defense Concessions.  United States v. Crowder, 141 F.3d 1202 (D.C. Cir. 1998) (en banc).  Case remanded from the Supreme Court in light of Old Chief v. United States, 519 U.S. 172 (1997).  In an en banc reversal, a majority of the court held that the defense could not stipulate to uncharged misconduct in an effort to preclude the government from introducing evidence under FRE 404(b).  The D.C. Circuit said that the evidence was relevant under MRE 401 even though there may have been other forms of evidence available.  The defense cannot force the government to stipulate, and if the evidence fits an exception under MRE 404(b) and is not unduly prejudicial under MRE 403, then it is admissible in the form the government wants.  Stipulations are not the same as other evidence and government is not required to sacrifice the context and richness of the evidence through stipulations unless, as in Old Chief, the stipulation deals with the legal status of the accused and the stipulation gives the government everything they otherwise would want through use of the evidence.  See also United States v. McCrimmon, 60 MJ 145 (2004) (assuming no overreaching by the government, evidence of uncharged misconduct, otherwise inadmissible evidence, may be presented to the court by stipulation and may be considered by the court).

VIII. METHODS OF PROVING CHARACTER

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MRE 405. Methods of proving character

(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the military judge may allow an inquiry into relevant specific instances of the person's conduct.

(b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

(c) By Affidavit. The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.

(d) Definitions. "Reputation" means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. "Community" in the Armed Forces includes a post, camp, ship, station, or other military organization regardless of size.

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A. MRE 405.  Form of proof.

1. While MRE 404 governs whether character evidence is admissible, by contrast, MRE 405 governs “how” a proponent may prove character or a character trait.  The rule applies in those situations where “character is in issue” (likely only entrapment cases) and in certain instances of allowable character evidence under MRE 404(a)(1) (character of the accused), MRE 404(a)(2) (character of the alleged victim) and MRE 608 (character of a witness). 

2. MRE 405 does not apply to the following:

a) Propensity Inferences under MRE 404(a).  Since this use of character evidence is prohibited, there is no acceptable form of proof to introduce the character evidence.

b) Non-propensity purpose under MRE 404(b).  If one of the stated purposes of introduction under MRE 404(b) (KIPPOMIA – Knowledge, Intent, Plan, Preparation, Opportunity, Motive, Identity, or Absence of mistake) or any other non-character basis is offered for introduction of the evidence, then MRE 405 does not apply.  Under MRE 404(b), relevancy does not depend upon conclusions about a person’s character.

c) Habit under MRE 406.  Habit evidence is not treated as character evidence and as such, is exempted from MRE 405.

d) Evidence of a victim’s other sexual behavior under MRE 412.  MRE 405 does not govern the method of proof. Under MRE 412, the evidence may only be proven by extrinsic specific acts subject to the other constraints under Rule 412.

e) Evidence of similar crimes under MRE 413 and 414.  These rules are exempted from 405.  Under MRE 413 and 414, the accused’s sex-related traits in sex offense or child molestation cases may be proven by reputation, opinion, or extrinsic specific acts. 

B. MRE 405.  Methods of Proving Character.

1. MRE 405(a) limits a proponent of character evidence to proving it either through using reputation or opinion testimony.  A proponent is generally not allowed to elicit testimony regarding specific instances of conduct (unless character is an essential element of an offense or defense – discussed in detail below).  

a) Reputation evidence is information that a witness knows about an individual from having heard discussion about the individual in a specified community.  MRE 405(d) lists several permissible examples of a “community.”  See United States v. Reveles, 41 M.J. 388 (1995) (for purposes of reputation testimony, “community” broadly defined to include patrons at officer’s club bar).

b) Opinion evidence is a witness’s personal opinion of an individual’s character.  From a practical standpoint, the impact of this evidence, depends greatly upon the individual giving it.

c) On cross-examination of a character witness, inquiry is allowable into relevant instances of conduct (discussed in greater detail below).

2. Mechanically, the proponent demonstrates reputation/opinion/specific instances character evidence by showing the following that an individual has a particular character trait; the witness has an opinion about the trait, or is familiar with the person’s reputation concerning that particular trait, or can testify concerning specific acts relevant to the trait; AND the witness states an opinion, relates the reputation, or, under very limited circumstances, testifies about specific instances of conduct relevant to trait in issue.

3. Cross-Examining a Character Witness

a) The witness giving the reputation or opinion testimony is subject to impeachment by relevant specific instances of conduct.  MRE 405(a).  The rule in practice tends almost exclusively to be used by the government; however, it applies equally to both trial and defense counsel.  This method is obviously a very effective way of testing a witness’s opinion or reputation knowledge.  If the witness admits hearing or knowing of the act, the trier of fact may discredit their testimony.  If the witness denies having heard or knowing of the act, the trier of fact may question how well the witness knows the individual or the individual’s reputation. 

b) Counsel may inquire about specific instance of conduct by asking “Have you heard” or “Do you know” questions.  Prior to asking any such question, however, counsel must have a good faith belief. United States v. Pruitt, 43 M.J. 864 (A.F. Ct. Crim. App. 1996).  The opponent to such inquiry may require the proponent to state their good faith belief by way of a motion in limine.

c) The witness either knows of the specific instances of conduct or they do not.  The counsel asking the question is stuck with the witness’s response.  United States v. Robertson, 39 M.J. 211 (C.M.A. 1994), cert. denied, 115 S. Ct. 721 (1995).  This is true since the purpose of the specific instance of conduct is to test the basis of the witness providing the character evidence. 

d) When cross-examining on specific instances of conduct, the focus should be on the underlying conduct and not the government action taken in response to the underlying conduct.  For example, counsel’s questions should focus on the conduct which led to an article 15 and not the fact of the article 15 itself.  Robertson, 39 M.J. at 214-15.

e) Timeliness of Acts – MRE 405(a) is concerned with character at the time of the charged offense.  Under the rule, any cross-examination should be limited to acts that would have occurred prior to the offense charged, because the court wants to test character at that time.  Thus, it is improper to ask a character witness whether the charges brought in the case have affected reputation or their opinion.  United States v. Brewer, 43 M.J. 43 (1995) (although not objected to, the court held that counsel are not permitted to test the basis of a witness’ character opinion by using the charged offense).

4. Under MRE 405(b), specific instances of conduct are allowed in cases where character or a trait of character of an individual is an essential element of an offense or defense.  Character is rarely an essential element of an offense or defense.  An example of when character would be an essential element of an offense or defense is in a court-martial where the defense to purchasing illegal drugs is entrapment.  Either the government or defense would be permitted to offer character evidence regarding the predisposition to purchase illegal drugs.  Such evidence escapes the general proscription against character evidence because it is not offered to prove conformity, but because of the significance of the trait in relation to the crime.  Where character is “an essential element of the offense or defense,” proof may be made by means of opinion or reputation evidence or specific instances of a person’s conduct.   MRE 405(a) and (b).

a) United States v. Schelkle, 47 M.J. 110 (1997) (character is not an essential element of good soldier defense such that proof may be made by reference to specific acts of conduct).

b) United States v. Dobson, 63 M.J. 1 (2006).  May evidence of specific acts of violence by an alleged victim, known to the accused, be admitted into evidence on the issue of the accused’s intent?  Yes.  Although the military judge correctly prevented the defense from using specific acts under MRE 405 to prove character of the accused, the military judge erred by not admitting the evidence to show the appellant’s state of mind at the time of the victim’s death.  Under MRE 405, a relevant character trait may only be admitted by reputation or opinion testimony, unless the character trait is an essential element of an offense or defense.  The military judge determined that although the victim’s character for violence could be proved by opinion or reputation evidence, specific acts by the victim were not admissible because the character trait for violence was not an essential element of the self-defense claim.  The CAAF held the military judge erred when he did not address the question of whether evidence of specific acts of violence known to the appellant were admissible on the issue of the appellant’s intent.  Since the government lacked any direct evidence on premeditation, the prohibited testimony was material.  With no direct evidence of intent, the panel could have accepted all of the government’s evidence pointing to the appellant as the perpetrator of the murder, but still have a reasonable doubt as to whether she premeditated the murder in light of the impact of abuse on her intent. Under these circumstances, the CAAF could not be confident that the error of excluding the testimony of the defense’s two witnesses was harmless on the issue of premeditation.  Therefore CAAF reversed the findings as to premeditated murder as well as the sentence. 

5. MRE 405(c) has no federal counterpart, and is made necessary by the worldwide disposition of the armed forces and the difficulty of securing witnesses, particularly in connection with brief statements concerning character.  MRE 405(c) is based on prior military practice and permits the defense to use affidavits or other documentary evidence to establish the accused’s character.  The rule permits the government to make use of similar evidence in rebuttal. 

a) This use may have Sixth Amendment difficulties under Crawford v. Washington, 541 U.S. 36 (2004). 

b) United States v. Lowe, 56 M.J. 914 (N-M Ct. Crim. App. 2002), the service court held that the military judge erred in allowing opinion testimony through the introduction of hearsay documents containing a “litany” of uncharged misconduct.  The court went on to note that while MRE 405(c) relaxes the rules of evidence regarding hearsay concerning the form of such testimony, it does not relax the rules of evidence concerning the substance of such evidence.  While the government counsel could have presented a written opinion under MRE 405(c) rebutting the opinion offered by the defense, it couldn’t use MRE 405(c) to admit extrinsic evidence of otherwise inadmissible uncharged misconduct to rebut the offered opinion.

IX. Rule 410

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MRE 410. Pleas, plea discussions, and related statements

(a)  Prohibited Uses. Evidence of the following is not admissible against the accused who made the plea or participated in the plea discussions:

(1)  a guilty plea that was later withdrawn;

(2)  a nolo contendere plea;

(3)  any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or

(4)  any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b)  Exceptions. The military judge may admit a statement described in subdivision (a)(3) or (a)(4):

(1)  when another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2)  in a proceeding for perjury or false statement, if the accused made the statement under oath, on the record, and with counsel present.

(c)  Request for Administrative Disposition. A "statement made during plea discussions" includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; "on the record" includes the written statement submitted by the accused in furtherance of such request.

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A. MRE 410

1. The rule aims to encourage legitimate plea bargaining by protecting open, candid discussions between the accused and the prosecution.  See Notes of Advisory Committee to Federal Rule of Evidence 410 (1975); Standard 14-2.2, ABA Standards Relating to Pleas of Guilty (1986).  Mezzanatto v. United States, 513 U.S. 196 (1995).

2. The Military Rule extends to pretrial agreements, or discussions of the same with the trial counsel, staff judge advocate, or convening authority or other counsel for the Government.  The federal rule extends only to “an attorney for the prosecuting authority.” 

3. The following are inadmissible against an accused:

a) A plea of guilty that is later withdrawn;

b) Any statement made by the accused and defense counsel in the course of the providence inquiry concerning a plea of guilty that is later withdrawn;

c) Any statement made by the accused and defense counsel in the course of plea discussions which do not ultimately result in a plea of guilty or which result in a plea of guilty that is later withdrawn.

4. United States v. Vasquez, 54 M.J. 303 (2001).  Accused submitted a chapter 10 request admitting to a 212 day AWOL.  That charge was not before the court.  Government admitted that request in the sentencing case as part of the accused’s service records.  CAAF said that accused’s statements were covered by MRE 410 in light of the court’s long-standing precedent for avoiding an excessively formalistic application of the rule in favor of a broad application. 

5. MRE 410 Examples. 

a) United States v. Barunas, 23 M.J. 71 (C.M.A. 1986) (accused’s letter to commander requesting non-judicial disposition of use and possession of cocaine charges was inadmissible under MRE 410).

b) United States v. Brabant, 29 M.J. 259, 264-65 (C.M.A. 1989) (accused’s statement that he would do whatever it took to “make this right” was inadmissible).

c) United States v. Watkins, 34 M.J. 344 (C.M.A. 1992) (accused’s questions to investigator as to amount of likely prison sentence is not plea negotiation as CID not within enumerated exceptions of MRE 410).

d) United States v. Balagna, 33 M.J. 54, (C.M.A. 1991).  CSM testified concerning the accused’s duty performance.  CSM previously had spoken for the accused in an Article 15 hearing based on a positive urinalysis, but stated that because of a report he had read, he would not do so again.  Court member asked about the report.  The panel was told about a Chapter 10 request, and the judge instructed that the report had no relevance to the trial.

e) The Government may be able to introduce such evidence if it can establish that the same information was independently obtained or pursuant to other theories.  See United States v. Magee, 821 F.2d 234 (5th Cir. 1987).

X. Rule 412

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MRE 412. Sex offense cases: The victim's sexual behavior or predisposition

(a)  Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (b) and (c):

(1)  Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2)  Evidence offered to prove any alleged victim's sexual predisposition.

(b)  Exceptions. In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:

(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(3) evidence the exclusion of which would violate the constitutional rights of the accused.

(c)  Procedure to determine admissibility.

(1)  A party intending to offer evidence under subsection (b) must—

(A)  file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B)  serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2)  Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and remain under seal unless the military judge or an appellate court orders otherwise.

(3)  If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subdivision (b)(1) or (2) of this rule and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy, or that the evidence is described by subdivision (b)(3) of this rule, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the victim may be examined or cross-examined. Any evidence introduced under this rule is subject to challenge under MRE 403.

(d)  Definitions. For purposes of this rule, the term "sexual offense" includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. "Sexual behavior" includes any sexual behavior not encompassed by the alleged offense. The term "sexual predisposition" refers to an alleged victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the fact finder. For the purpose of this rule, the term “victim” includes an alleged victim.

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A. Purpose and Background.

1. Basics:  MRE 412 is a rule of relevance which prohibits the introduction of evidence of a victim’s other sexual behavior or predisposition.   The logical foundation of the rule is similar to—though broader in scope than—the prohibition on propensity evidence from MRE 404, and rests on the premise that evidence of a person’s other sexual conduct rarely is relevant to the question of how a person acted on a specific occasion.  The Rule “is intended to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses.” (MCM, App. 22, at A22–36) (2012)). 

2. Prior to adoption of MRE 412, an accused was permitted to introduce evidence of the “unchaste” character of the victim, regardless whether the victim testified at trial.  The prior rule often produced evidence “of at best minimal probative value with great potential for distraction…[which] discourages both the reporting and prosecution of many sexual assaults.”  This use of the alleged victim’s sexual history by an accused came under criticism in the late 1970s.  As a result, Congress passed the Privacy for Rape Victim Act of 1978 as Federal Rule of Evidence 412. Congress revised the rule as part of the Violent Crime Control and Law Enforcement Act of 1994.  The military adopted Federal Rule of Evidence 412 under the provisions of Rule 1102 as MRE 412. 

3. Early decisions of military appellate courts expressed “grave doubts whether MRE 412(a) should be properly construed as an absolute bar to the admission of evidence of a prosecutrix’ sexual reputation.”  United States v. Elvine, 16 M.J. 14 (C.M.A. 1983).  Since that time the contours of MRE 412 have become clearer through both case law and refinements to the rule itself. 

B. Applicability and Exceptions.

1. MRE 412 applies to both consensual and non-consensual offenses under the UCMJ.  The rule’s protections depend on the status and presence of a victim, rather than consent.  United States v. Banker, 60 M.J. 216 (2004).  After CAAF’s decision in Banker, the MRE was amended in 2007 to clarify that MRE 412 applies in all sexual offense cases where the evidence is offered against a person that can reasonably be characterized as a “victim of the alleged sexual offense.”  Hence, Rule 412 applies to nonconsensual as well as consensual offenses, sexual offenses specifically proscribed under the UCMJ, federal sexual offenses prosecutable under clause 3 of Article 134, and state sexual offenses prosecutable under the Federal Assimilative Crimes Act.  Accordingly, the “nonconsensual” language was removed from the rule by Executive Order 13,447 in September 2008.

2. There are three enumerated exceptions to the general rule of prohibition under 412:

a) Someone else is the source of physical evidence:  If the trial counsel has introduced evidence of semen, injury, or other physical evidence, the defense must be allowed to introduce other specific instances of the victim’s sexual behavior (if relevant) to show another was the source of the evidence.  MRE 412(b)(1).

b) Evidence of other specific instances of sexual behavior between the victim and the accused if offered to prove consent, or if offered by the prosecution:  this may be offered by the accused to prove consent or mistake of fact as to consent, or by the prosecution to prove lack of consent.  MRE 412(b)(2).

(1) United States v. Jensen, 25 M.J. 284 (C.M.A. 1987).  Includes acts and statements of intent to engage in intercourse.

(2) United States v. Kelly, 33 M.J. 878 (A.C.M.R. 1991).  The military judge erred in excluding evidence of an alleged rape victim’s flirtatious and sexually provocative conduct.  To admit evidence of past sexual behavior, the proponent must demonstrate that the evidence is relevant, material, and favorable to the defense.  The victim's past sexual conduct met those requirements in this case. The rape shield provisions aim to protect the victim from harassment and humiliation, but those ends are not served by excluding evidence of pattern of behavior involving open, public displays of sexually suggestive conduct.  Findings and sentence were set aside.

c) Constitutionally-required evidence:  Under MRE 412(b)(3), the standard is that the evidence must be (1) relevant, (2) material, and (3) favorable (defined by case-law as “vital”) to the defense.  For all practical purposes, this is a test of necessity or vitality in military courts-martial.  United States v. Banker, 60 M.J. 216 (2004).

(1) United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).  The military judge denied the accused’s initial MRE 412(b)(3) (formally MRE 412(b)(1)(C)) motion to cross examine the victim on a prior, unfounded rape allegation.  During direct examination the government opened the door by using it to bolster her reason for delayed reporting the current allegation.  The court found it error to deny the accused the ability to cross examine on it after the government opened the door.  Denying the accused the right to confront the victim with her previous allegation of rape under MRE 412(b)(1)(C) after the government opened the door on direct examination in an effort to bolster her credibility denied the accused his right to confrontation despite the military judge’s earlier ruling to exclude the evidence in pretrial motions.  A key component of the Confrontation Clause is the crucible of cross-examination.  Davis v. Alaska, 415 U.S. 308, 316-317 (1974).  This right becomes even broader when the prosecution opens the door to impermissible evidence during their case in chief.  A failure by the intermediate court was not recognizing that witness credibility is an issue for the fact finder. 

(2) United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011).  The C.A.A.F. held that the prior decision in United States v. Banker was wrong in holding that an accused’s constitutional rights should be balanced against a victim’s privacy interests when determining admissibility under MRE 412(b)(3).  If evidence is constitutionally required, and it survives MRE 403 balancing, the evidence is admissible regardless of the level of embarrassment.  Despite this holding, the facts of this case did not allow the accused to confront the victim with evidence under MRE 412.  The accused in this case did not make a showing that the evidence found in e-mails alluding to the victim being sexually active was constitutionally required under MRE 412(b)(3).  The military judge did allow cross-examination on the e-mails without allowing questions into the content by using MRE 611.  While an accused has a right to confront his accuser, that right is not without limitations.  Davis v. Alaska, 415 U.S. 308, 316 (1974).  The Confrontation Clause protects a person’s rights to a fair cross-examination of a witness to establish bias or motive to lie.  That cross-examination can be curtailed when the probative value is outweighed by the danger of unfair prejudice.  These dangers of unfair prejudice include harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986).  Here, the judge had already determined that there was insufficient probative value in the e-mails to rise to the level of constitutionally required evidence.  As such, he may be allowed an opportunity to expose her motive to lie, but not in every possible manner.  The military judge placed limits on the inquiry, and CAAF held that the judge had admitted sufficient evidence to establish TE’s motive to lie. Excluding the sexual nature of the worrisome e-mails did not violate the constitutional rights of the accused.  The court did not conduct any MRE 403 analysis. 

(3) United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011).  The C.A.A.F. held that in an Article 120 case it was error for the military judge to exclude evidence that the victim had an extra-marital affair two years prior.  When she disclosed the earlier affair to her husband, he became enraged and kicked down the wife’s lover’s door.  The court found that the military judge prevented the appellant from presenting a theory that a previous affair made it more likely that CL would have lied in this case; that it was a fair inference that a second affair would be more damaging to CL’s marriage than a single event; and there was evidence in the record to support this inference, particularly the evidence that the husband had had a prior violent reaction when learning about CL’s affair.   The court found that the proffered evidence had a direct and substantial link to CL’s credibility, and her credibility was a material fact in the case.  The probative value of the evidence was high because the other evidence in the case was so conflicting, and was not outweighed by other concerns.  The court did not conduct any MRE 403 analysis.

(4) United States v. Williams, 37 M.J. 352 (C.M.A. 1993).  The military judge denied the defense motion for a rehearing based on newly discovered evidence concerning the victim’s credibility.  The evidence suggested a motive to fabricate, and showed that the government expert based his opinion testimony on her “deceitful and misleading” information.  Since the evidence was relevant, material and favorable to the defense, it was “constitutionally required to be admitted.”

(5) United States v. Greaves, 40 M.J. 432 (C.M.A. 1994).  The military judge properly prevented accused from testifying that he knew that rape victim was a hostess at a Japanese bar and dressed provocatively.  The testimony was not relevant where the victim was semi-conscious and where the accused was allowed to testify about circumstances which allegedly led him to believe the victim consented.

(6) United States v. Harris, 41 M.J. 890 (A. Ct. Crim. App. 1995).  Evidence of a victim’s prior sexual activity as a prostitute was constitutionally required to be admitted where defense theory was that victim agreed to sexual intercourse in expectation of receiving money for a bus ticket to Cleveland, and was motivated to retaliate by alleging rape only after accused called her a “skank bitch.”  See also United States v. Saipaia, 24 M.J. 172 (C.M.A. 1987), cert. denied, 484 U.S. 1004 (1988).

(7) United States v. Buenaventura, 45 M.J. 72 (1996).  Evidence of sexual abuse of an eight-year-old victim by the grandfather, and expert testimony regarding “normalization” – replacing abusive person (grandfather) with friendly person (accused) in recalling the abuse – was constitutionally required to be admitted.  But see United States v. Gober, 43 M.J. 52 (1995); United States v. Pagel, 45 M.J. 64 (1996). 

d) The victim’s past sexual history must be relevant to the defense’s theory before it is admissible under a Constitutionally-required standard.

(1) United States v. Velez, 48 M.J. 220 (1998).  Accused was convicted of rape.  The CAAF noted that the defense theory of the case was that the contact never happened, so even if the victim was promiscuous, it didn’t matter under the defense theory.

(2) United States v. Datz, 59 M.J. 510 (C.G. Ct. Crim. App. 2003).  Affirming appellant’s rape conviction, the court held that evidence of the victim’s previous sexual encounters with another Service member was too speculative and not commonly viewed as being relevant.  

(3) United States v. Banker, 60 M.J. 216 (2004); abrogated by United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) (holding that the prior decision in United States v. Banker was wrong when it held that the victim’s privacy interests should be balanced against evidence determined to be constitutionally required before allowing it into evidence).  In Banker, the C.A.A.F. held that evidence proffered under the constitutionally required exception to MRE 412(a) is admissible only if the evidence is 1) relevant; 2) material; and 3) favorable to the defense AND it is not outweighed by the victim’s privacy.  This balancing test, applied in this manner, is unconstitutional under United States v. Gaddis.  While other sections of Banker may be useful in helping counsel determine relevant and material, if evidence is found constitutionally required, the victim’s privacy cannot be used to exclude it regardless of the significance.    

C. MRE 412.  Requirements for admission. 

1. Prior to admission, the proponent must show: The act is relevant for one of the specified exceptions to in MRE 412; where the act occurred; when the act occurred; AND who was present;

2. Proponent must show that its probative value outweighs MRE  403 dangers.

a) United States v. Sanchez, 44 M.J. 174 (1996).  As offer of proof failed to identify the significance and theory of admissibility of the victim’s prior sexual behavior, accused was not entitled to hearing on the admissibility of MRE 412 evidence.  Judge Everett claims that, where alleged motive is commonly understood and obvious from the facts, it is unnecessary for the defense to produce expert testimony.  However, where the proffered motive is highly speculative and not commonly understood, expert testimony is essential to understand the connection between the motive to lie and the prior consensual behavior.

b) United States v. Banker, 60 M.J. 216 (2004).  In applying MRE 412, the military judge is not asked to determine if the proffered evidence is true.  Rather, the military judge serves as a gatekeeper by deciding first whether the evidence is relevant and next whether it is admissible under the MRE .  The factfinder weigh the evidence and determine its veracity.  While evidence of a motive to fabricate an accusation is generally constitutionally required to be admitted, the alleged motive must itself be articulated to the military judge in order for her to properly assess the threshold requirement of relevance. 

c) United States v. Zak, 65 M.J. 786 (A. Ct. Crim. App. 2007).  The military judge abused her discretion in excluding evidence of the victim’s prior sexual behavior towards appellant (i.e., a mostly nude massage) because she did not believe that the incident occurred.   Based on Banker, the ACCA reiterated that the military judge only determines whether the evidence is relevant and meets one of the exceptions under MRE 412(b), not whether the evidence is true.

3. Evidence admissible under MRE 412 is still subject to challenge, and may therefore be excluded, under MRE  403.  (Note that the 2007 Amendment to 412(c)(3) specifically states, “Such evidence is still subject to challenge under MRE  403.”). 

4. Procedural requirements for admission.  MRE 412(c) imposes procedural and notice requirements that must be implemented before a defense counsel may use one of the exceptions.  The defense must file a written motion at least five days prior to entering a plea.  The motion must specifically describe the desired evidence and the purpose for which it is being offered.  The defense must serve the motion on the government, the military judge, and notify the alleged victim.  The military judge, if necessary, conducts a closed Article 39(a) session.  During this proceeding both parties may call witnesses, including the alleged victim and offer other evidence.  The alleged victim must be afforded a reasonable opportunity to attend and be heard.  The defense is required to establish that its evidence satisfies one of the stated exceptions.  The military judge must determine whether, on the basis of the hearing, the evidence the defense seeks to admit is relevant.  Evidence admissible under Rule 412 is still subject to challenge under Rule 403. 

XI. RULES 413 and 414

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MRE 413. Similar crimes in sexual offense cases

(a)  Permitted Uses. In a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.

(b)  Disclosure to the Accused. If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including any witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.

(c)  Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

(d)  Definition. As used in this rule, "sexual offense" means an offense punishable under the Uniform Code of Military Justice, or a crime under federal or state law (as "state" is defined in 18 U.S.C. § 513), involving:

(1)  any conduct prohibited by Article 120;

(2)  any conduct prohibited by 18 U.S.C. chapter 109A;

(3)  contact, without consent, between any part of the accused's body, or an object held or controlled by the accused, and another person's genitals or anus;

(4)  contact, without consent, between the accused's genitals or anus and any part of another person's body;

(5)  contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or

(6)  an attempt or conspiracy to engage in conduct described in subdivisions (d)(1)–(5).

 

MRE 414. Similar crimes in child-molestation cases

(a)  Permitted Uses. In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.

(b)  Disclosure to the Accused. If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.

(c)  Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

(d)  Definitions. As used in this rule:

(1)  “Child” means a person below the age of 16; and

(2)  “Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as "state" is defined in 18 U.S.C. § 513), that involves:

(A)  any conduct prohibited by Article 120 and committed with a child;

(B)  any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;

(C)  any conduct prohibited by 18 U.S.C. chapter 110;

(D)  contact between any part of the accused's body, or an object held or controlled by the accused, and a child's genitals or anus;

(E)  contact between the accused's genitals or anus and any part of a child's body;

(F)  contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or

(G)  an attempt or conspiracy to engage in conduct described in subdivisions (d)(2)(A)–(F).

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A. MRE 413/414.

1. MRE 413 allows, in sexual assault cases, the introduction of evidence that the accused has committed another sexual assault offense.  If admitted, the evidence may be considered on any matter to which it is relevant (including propensity).  The rule operates as an exception to the rule prohibiting propensity evidence under MRE 404. MRE 414 functions the same way in cases of child molestation.  The rules were written to overcome three main criticisms of MRE 404(b) in sex offense cases:  (1) MRE 404(b) requires trial counsel to articulate a non-propensity purpose; (2) the military judge always has discretion under Rule 403 to exclude the evidence; and (3) the limiting instruction from the military judge prohibited the government from using the evidence to argue an accused has a propensity to commit sexual offenses.

2. Congress enacted MRE 413 and 414 as part of the Violent Crime Control and Enforcement Act of 1994.  During the Congressional debate on these provisions, Representative Susan Molinari, the MREs ’ primary sponsor, said it was the intent of Congress that the courts “liberally construe” both MRE so that finders of fact can accurately assess a defendant’s criminal propensities and probabilities in light of his past conduct.

B. MRE 413/414.  Scope of the Rules.

1. Prior to admitting evidence under MRE 413 or 414, the military judge must make three threshold determinations: 

a) The accused is charged with an offense of sexual assault/child molestation;

b) The evidence proffered is evidence of the accused’s commission of another offense of sexual assault/child molestation; and

c) The evidence is relevant under MRE 401 and 402.  United States v. Berry, 61 M.J. 91 (2005).

2. Balancing under MRE 403.  If the evidence offered meets these threshold requirements, a military judge must next apply the balancing test under MRE 403 to determine whether the evidence may be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members.  Numerous military appellate courts have published opinions which clarify the contours of this important rule.

a) United States v. Green, 51 M.J. 835 (A. Ct. Crim. App. 1999).  Military judge erroneously believed MRE 413 “trumped” MRE 403, and that the MRE 403 balancing test was not required.  The Army appellate court held that a military judge is required to conduct a MRE 403 balancing test prior to admitting evidence under either MRE 413 or 414.

b) In United States v. Wright, 53 M.J. 476, 482 (2000), the accused pled guilty to indecent assault of P in October of 1996.  He pled not guilty but was convicted of indecent assault of D in April of 1996, and housebreaking of P’s room in October of 1996. The government admitted the assault on P under MRE 413 to prove propensity to commit indecent assault against D.  The CAAF rejected the appellant’s claim that 413 was unconstitutional, finding the internal procedural protections of the rule and MRE 403 balancing were sufficient to safeguard the interests of an accused.  In addition, CAAF outlined a list of several nonexclusive factors (now widely referenced as the “Wright factors”) a military judge must consider in performing the required balancing of probative value and prejudicial effect.  These include: strength of proof of the prior act (e.g. a conviction, versus mere gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties. 

c) United States v. Henley, 53 M.J. 488 (2000).  The accused was convicted of committing oral sodomy on his natural son and daughter.  At trial, the government introduced incidents falling outside the statute of limitations under both MRE 414 and 404(b).  The trial court admitted the evidence under both rules.  The Air Force Court found the evidence admissible under MRE 404(b), and therefore did not need to address the MRE 414 issue. While CAAF agreed with the Air Force Court’s approach and affirmed, the opinion included dicta noting that, in light of its opinion in Wright, the evidence would have been admissible under MRE 414 as well.

d) United States v. Bailey, 55 M.J. 238 (2001).  Appellant was convicted at a general court-martial of rape, forcible sodomy, aggravated assault, and other offenses.  He argued on appeal that the military judge erred in admitting, over defense objection, evidence of prior acts of forcible sodomy through the testimony of the appellant’s former wife and former girlfriend when the acts in question occurred up to a decade in time prior to the charged offenses.  The military judge allowed the evidence under MRE 413, after performing a balancing test under MRE 403. The military judge also provided a limiting instruction to the panel concerning this evidence.  The CAAF held that the balancing test conducted by the military judge, in conjunction with his limiting instruction, met the requirements for an appropriate balancing test outlined in United States v. Wright, even though the trial judge had not applied all of the non-exclusive factors outlined in the Wright decision.  See also United States v. Dewrell, 55 M.J. 131 (2001).

e) United States v. Berry, 61 M.J. 91 (2005).  Appellant was convicted of forcible sodomy involving another male soldier.  At trial, the appellant’s defense to the charge of forcible sodomy was that the alleged victim had consented to the oral sex incident.  To counter this defense, the Government sought to introduce testimony from LS, who testified he had been the victim of a similar act by the appellant eight years earlier.  The military judge found that the testimony was relevant and admissible under MRE 413.  The ruling was affirmed by ACCA in an unpublished opinion.  The CAAF found that although the testimony was relevant, the military judge erred in admitting it because he failed to do an adequate balancing test under MRE 403 and that under a proper MRE 403 balancing test the testimony was inadmissible and prejudicial.

3. No Temporal Limit.  United States v. James, 63 M.J. 217 (2006).  The CAAF concluded that the clear language of MRE 414 does not limit the admission of other incidents of child molestation to those occurring before the charged offenses.  This reading has equal application to MRE 413.  Therefore, the fact that propensity evidence under MRE 413/414 occurs after the date of the charged offenses is not a barrier to its admission in the accused’s court-martial.

4. Same acts not required.  No requirement that the acts admitted under MRE 413/414 be the exact same acts of molestation as the charged offenses.  United States v. Ediger, 68 M.J. 243 (C.A.A.F. 2010). 

5. Limiting instructions may be required.

a) In United States v. Dacosta, 63 M.J. 575 (Army Ct. Crim. App. 2006), the Army Court of Criminal Appeals held that trial judges have a sua sponte duty to issue a specific list of instructions to members on considering evidence offered under MRE 413. The Benchbook was later modified to meet this requirement. 

b) United States v. Schroder, 65 M.J. 49 (2007) illustrates the need for the type of instruction mandated by Dacosta.  In Schroder, the military judge properly admitted the uncharged misconduct under MRE 414, but failed adequately to instruct the members on its proper uses.  While finding that the military judge’s instruction fell short of what was required when MRE 414 evidence is admitted at trial, CAAF noted that the military judge correctly instructed the members on the government’s burden, but improperly qualified the statement by informing the members that they may “[h]owever . . . consider the similarities in the testimony” of the three alleged victims concerning the alleged rape and indecent acts.  The CAAF believed the instruction was “susceptible to unconstitutional interpretation” because it could be construed to mean the similarities between the charged and uncharged misconduct could, standing alone, convict the appellant.  The CAAF pointed to Dacosta and Benchbook instruction 7-13-1.  While not adopting the entirety of the Dacosta instruction as its own, the CAAF stated the members “must be instructed that the introduction of such propensity evidence [under MRE 414] does not relieve the government of its burden of proving every element of every offense charged.  Moreover, the factfinder may not convict on the basis of propensity evidence alone.”  In this case, the CAAF was convinced beyond reasonable doubt that the error did not contribute to the appellant’s conviction.  As such, the court determined the error was harmless.  

c) In 2016 ACCA revisited the issue and overturned the portion of Dacosta which required those specific instructions. United States v. Williams, 75 M.J. 621, 629–30 (Army Ct. Crim. App. 2016). While the “formulaic” requirement of Dacosta has been eliminated, ACCA reaffirmed a more general requirement that a judge’s “instruction on M.R.E. 413 or M.R.E. 414 evidence must still inform the panel that: 1) an accused may not be convicted based on propensity evidence alone; and 2) that M.R.E. 413 or M.R.E. 414 evidence does not relieve the government of its burden to prove every element of every offense charged.” Williams, 75 M.J. at 630, citing Schroder, 65 M.J. at 56.

6. Admissibility of juvenile offenses.  In United States v. Bare, 65 M.J. 35 (2007), the accused was charged with sexually molesting his natural daughter, RB.  At the time of the trial, RB was fourteen years old.  However, the sodomy specification covered a period when RB was under the age of twelve.   At trial, the government sought to admit the testimony of the appellant’s sister KB regarding his sexual molestation of her when she was between the ages of seven and eleven and the appellant was between the ages of fifteen and nineteen.  The Government also sought to admit the testimony of TA, the appellant’s stepdaughter.  TA alleged the appellant had sexually molested her when she was about eleven years old. The government offered KB and TA’s testimony under MRE 414.   The appellant did not challenge the admissibility of TA’s testimony (since this occurred when he was an adult).  However, the appellant did argue that the military judge erred in conducting the required MRE 403 analysis.  The appellant analogized his case to that of United States v. Berry, 61 M.J. 91 (2005) and United States v. McDonald, 59 M.J. 426 (2004).  In both Berry and McDonald, the CAAF concluded the military judge erred in admitting evidence of uncharged adolescent sexual misconduct to prove the charged adult sexual misconduct.  The appellant in Bare argued that, as in Berry and McDonald, the military judge failed to give adequate consideration to his young age at the time of the uncharged misconduct when conducting his MRE 403 analysis.  The CAAF considered whether, in light of Berry and McDonald, the military judge erred in admitting uncharged sexual acts between the appellant, when he was an adolescent, and his sister.  The CAAF stated that a military judge must take care to meaningfully analyze the different phases of an accused’s development when projecting on a child the mens rea of an adult or extrapolating an adult mens rea from the acts of a child.  The CAAF cautioned military judges to not treat the different phases of the accused’s development as being unaffected by time, experience, and maturity.  In this case, however, CAAF was persuaded that the appellant’s facts were distinguishable from those in Berry.   Unlike Berry, the military judge conducted a meaningful MRE 403 balancing analysis which considered factors weighing both against and in favor of admission of the evidence; the misconduct occurred while the accused was an adult as well as an adolescent; the appellant was charged with an offense of child molestation (Berry was not); and the misconduct occurred regularly for a period of about two or three years.  All of these factors, according to the CAAF, made KB’s testimony more probative and less unfairly prejudicial than the testimony admitted in Berry.  As such, the military judge did not abuse his discretion in admitting the evidence under MRE 414.

7. Scope of evidence.  The evidence offered under MRE 413 or 414 does not necessarily have to be the acts which constitute a sexual offense. 

a) In United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010), the government admitted over defense objection file names suggestive of homosexual acts with preteen and teenage boys under MRE 414 (and alternatively under MRE 404(b) against the accused who was charged with sodomizing a fourteen-year-old male.  The CAAF held that the file names were not proper propensity evidence under MRE 414, nor were they admissible for any purpose under MRE 404(b). 

b) In order to be admissible under MRE 414, the proffered propensity evidence must be evidence of the accused’s commission of another offense of child molestation as defined by the rule.  The military judge admitted the evidence under MRE 414(d)(5) and alternatively under section (d)(2).  MRE 414(d)(5) allows evidence of an offense of child molestation that constitutes a crime under any Federal law that prohibits “deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child.”  MRE 414(d)(2) allows evidence of “any sexually explicit conduct with children” proscribed by the UCMJ, Federal, or State law.  The court held that MRE 414(d)(5) could not include possession of just the file names suggestive of child pornography because, in the absence of the actual files, it was not possible to determine if the conduct depicted in the media fell within the parameters of MRE 414(d)(5). 

c) The court further held that MRE 414(d)(2) did not apply because it requires that the qualifying “sexually explicit conduct” proscribed by Federal law be “with children.”  According to the court, under military law, “with children” means in the physical presence of children.  United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008).^[1]  As such, possession or attempted possession of child pornography would not qualify under MRE 414(d)(2) because the appellant himself was not physically present with the children depicted in the child pornography.  But see United States v. Conrady, 69 M.J. 714 (A. Ct. Crim. App. 2011) (holding that images clearly depicting a child in pain where the appellant saved them to his personal computer and admitted receiving sexual gratification from the images qualified under MRE 414(d)(5)).  Conrady is discussed further below.

d) The court also held that the unassociated file names were not admissible under MRE 404(b) because the military judge failed to make a proper MRE 404(b) analysis.  The court noted that the military judge specifically referenced “propensity” in making his MRE 404(b) determination.  Propensity may be a relevant basis under MRE 413 and 414, but it is not a proper basis for admitting evidence under MRE 404(b).  Accordingly, the military judged erred in alternatively admitting the unassociated file names under MRE 404(b).  Additionally, the court independently determined that the probative value of the proffered evidence did not outweigh the danger of unfair prejudice. 

e) Finally, the court held that admitting the unassociated file names was prejudicial and therefore set aside appellant’s conviction for sodomy and indecent acts.  The court also noted that the indecent acts charge was not subject to rehearing because the finding to that charge was reached as a lesser included offense of forcible sodomy under Article 125, UCMJ.  Pursuant to United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), indecent acts with a child is no longer a lesser included offense of sodomy.   

f) United States v. Conrady, 69 M.J. 714 (A.C.C.A. 2011).  The Appellant had a previous court-martial conviction for receiving child pornography through interstate commerce in violation Article 134, U.C.M.J. (charged as 18 U.S.C. §2252A(a)(2)(B)).  The government sought to admit several items from the Appellant’s prior court-martial, two of which were images of child pornography.  The government argued that the images qualified under MRE 414 as a prior crime of child molestation under MRE 414(d)(1) and (2).  PE 14 depicted a child, obviously in pain, engaged in sexual activity with two adults, while PE 18 contained an image of child pornography but no element of infliction of pain or injury.  While the military judge did err in admitting the PE 14 under MRE 414(d)(1) and (2), the error was harmless because PE 14 was admissible under MRE 414(d)(5).  Possession, receipt or transport of an image of child pornography alone does not meet the definition of a sexual act or sexual conduct with children because it is not done in the presence of a child, which is required under MRE 414(d)(1) and (2).  United States v. Yammine, 69 M.J. 70, 76 (C.A.A.F. 2010).  However, this court’s prior decision in Yammine did not rule out the possibility that child pornography could be a qualifying prior crime under MRE 414 in other circumstances.  MRE 414(d)(5) does not refer to engaging in sexual contact and, as such, does not require the presence of a child.  Instead, it focuses on “deriving pleasure . . . from the infliction of physical pain on a child,” which the accused here did through receiving and viewing the photograph.   While the admission of PE 18 admission was in error and it was not admissible under another subsection, based on the other evidence admitted, the error was harmless. [NOTE: the subsections of MRE 414 have been renumbered since the court’s decision in Conrady, but the law remains substantively the same.]

8. Admissibility between charged offenses. In the past, MRE 413 permitted the government to argue a propensity inference—subject to the Wright factors noted above—between charged offenses.  See, generally, United States v. Barnes, 74 M.J. 692 (A.C.C.A. 2015)(trial counsel’s comments on the propensity of the accused during closing argument in a case involving only charged misconduct were proper under MRE 413); United States v. Bass, 74 M.J. 806 (N–M. C.C.A. 2015)(military judge’s instructions on the members’ consideration of the propensity of the accused was proper where only charged misconduct was before the court); United States v. Maliwat, 2015 CCA LEXIS 443 (A.F.C.C.A. 2015)(there is a general presumption of admission for MRE 413 evidence which, when admissible, may be considered for the propensity of the accused to commit a sexual assault). However, in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), CAAF held that the use of sexual offense evidence for propensity purposes as between charged offenses was unconstitutional because it undermined the presumption of innocence and diluted the government’s burden of proving charged offenses beyond a reasonable doubt.  The use of charged conduct as MRE 413 evidence is error regardless of the forum, the number of victims, or whether the events are connected.  See United States v. Hukill, 76 M.J. 219, (C.A.A.F. 2017).

XII. PRIVILEGE RULES

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MRE 501. Privilege in general

(a)  A person may not claim a privilege with respect to any matter except as required by or provided for in:

(1)  the United States Constitution as applied to members of the Armed Forces;

(2)  a federal statute applicable to trials by courts-martial;

(3)  these rules;

(4)  this Manual; or

(5)  the principles of common law generally recognized in the trial of criminal cases in the United States district courts under rule 501 of the Federal Rules of Evidence, insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the Uniform Code of Military Justice, these rules, or this Manual.

(b)  A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:

(1)  refuse to be a witness;

(2)  refuse to disclose any matter;

(3) refuse to produce any object or writing; or

(4) prevent another from being a witness or disclosing any matter or producing any object or writing.

(c)  The term "person" includes an appropriate representative of the Federal Government, a State, or political subdivision thereof, or any other entity claiming to be the holder of a privilege.

(d)  Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity.

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A. Privileges generally.

1. Privileges are distinctive in their operation, in that they govern not just the admissibility and use of evidence at trial (whether members of the court may see or hear it, and how counsel may argue on those things), but govern also whether the materials may be produced in the first place. The authors of Military Evidentiary Foundations (5th Edition) explain privilege analysis in the following manner: in certain proceedings, the holder has a privilege unless it is waived or there is an applicable exception.  David A. Schlueter et al., Military Evidentiary Foundations, § 7–1[1] et seq. (5th ed. 2013). There are six considerations in this analytical framework:

a) The proceedings to which the privileges apply:  pursuant to Rule 1101, the MRE respecting privileges apply at all stages in virtually all proceedings conducted pursuant to the UCMJ: investigations, Article 32 hearings, Article 72 vacation proceedings, search and seizure authorizations, and proceedings involving pretrial confinement.

b) The holder of the privilege:  The original holder is the intended beneficiary (e.g., the client, the penitent, the patient), although in certain cases, another person (e.g. psychotherapist) will have authority to assert the privilege.

c) The nature of the privilege:  Encompasses three rights - to testify and refuse to disclose the privileged information; to prevent third parties from making disclosure; and the right to prevent counsel or the judge from commenting on the invocation of the privilege.

d) What is privileged?  The confidential communication between properly related parties made incident to their relation.

e) “Communication” is broadly defined.

f) “Confidential” implies physical privacy and intent on the part of the holder to maintain secrecy.

g) Waiver of the privilege:  Voluntary disclosure of the privileged matter, in-court or out-of-court, will waive the privilege.

h) Exceptions to the privilege:  In the military, exceptions to a privilege (as well as the privilege itself) are expressly delineated.  See United States v. Custis, 65 M.J. 366, 370-71 (2007) (stating that “whereas privileges evolve in other federal courts based on case law determinations, in the military system the privileges and their exceptions are expressly delineated.”). 

2. To claim a privilege, the elements of the foundation, in general, are: The privilege applies to this proceeding; the claimant is asserting the right type of privilege; the claimant is a proper holder of the privilege; and the information to be suppressed is privileged because it was a communication, it was confidential, it occurred between properly related parties, and it was incident to the relation.

B. MRE 501.

1. MRE 501 is the basic rule of privilege, recognizing privileges required by or provided for by the Constitution, acts of Congress, the Military Rules of Evidence, the MCM, and the privileges “generally recognized in the trial of criminal cases in the United States district courts pursuant to FRE 501 to the extent that application of those principles to courts-martial is practicable.”  United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991) (although it was unaware of any case applying 501(a)(4) to a privilege arising entirely from state law, here, accused did not even have standing to claim a statutory privilege for statements made by daughter to state social services officials).

2. Despite the express provisions of MRE 501 (a)(4), can military courts apply federal common law privileges?   See United States v. Custis, 65 M.J. 366, 370-71 (2007) (stating that “whereas privileges evolve in other federal courts based on case law determinations, in the military system the privileges and their exceptions are expressly delineated.”)  See also United States v. Wuterich, 68 M.J. 511 (N-M. Ct. Crim. App. 2009) (refusing to recognize a “reporter’s privilege,” in part, because the privilege was not specifically delineated.)  

C. MRE 502.  Lawyer-Client Privilege.

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MRE 502. Lawyer-client privilege

(a)  General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(1)  between the client or the client's representative and the lawyer or the lawyer's representative;

(2)  between the lawyer and the lawyer's representative;

(3)  by the client or the client's lawyer to a lawyer representing another in a matter of common interest;

(4)  between representatives of the client or between the client and a representative of the client; or

(5)  between lawyers representing the client.

(b)  Definitions. As used in this rule:

(1) "Client" means a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2)  "Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the Armed Forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding. The term "lawyer" does not include a member of the Armed Forces serving in a capacity other than as a judge advocate, legal officer, or law specialist as defined in Article 1, unless the member:

(A)  is detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding;

(B)  is authorized by the Armed Forces, or reasonably believed by the client to be authorized, to render professional legal services to members of the Armed Forces; or

(C)  is authorized to practice law and renders professional legal services during off-duty employment.

(3)  "Lawyer's representative" means a person employed by or assigned to assist a lawyer in providing professional legal services.

(4)  A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(c)  Who May Claim the Privilege. The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary.

(d)  Exceptions. There is no privilege under this rule under any of the following circumstances:

(1)  Crime or Fraud. If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2)  Claimants through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3)  Breach of Duty by Lawyer or Client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;

(4)  Document Attested by the Lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5)  Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

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1. An attorney-client relationship is created when an individual seeks and receives professional legal service from an attorney.  In addition, there must be an acceptance of the attorney by the client and an acceptance of the client by the attorney before the relationship is established. 

2. This privilege may be claimed by the client, or the lawyer on the client’s behalf.  However, MRE 502(d)(1) removes the privilege with respect to future crimes, as does 502(d)(3) with regard to breach of duty by lawyer or client, etc.  United States v. Smith, 33 M.J. 527 (A.C.M.R. 1991).

3. Waiver is examined strictly.  In United States v. Marcum, 60 M.J. 198 (2004), the appellant went AWOL after findings but before sentencing.  His defense counsel used a 20-page document the appellant had prepared for use at trial as an unsworn statement on sentencing.  The document contained unflattering observations about several of the victims involved in the case, and the trial counsel capitalized on those observations in his sentencing argument.  The CAAF held that the right to introduce an unsworn statement is personal to the accused, and in the absence of affirmative evidence of waiver, the evidence was admitted in violation of the attorney-client privilege.

4. Remedy for breach.  In United States v. Pinson, 56 M.J. 489 (2002), the CAAF held that when the actions of the government breached the attorney-client relationship between the accused and the defense counsel it may warrant reversal if it impacted the attorney’s performance or resulted in the disclosure of privileged information at the time of trial.  The CAAF identified the following factors when making that determination: (1) whether an informant testified at the accused’s trial as to the conversation between the accused and his attorney; (2) whether the prosecution’s evidence originated in the conversations; (3) whether the overheard conversation was used in any other way to the substantial detriment of the accused; or (4) whether the prosecution learned from the informant the details of the conversations about trial preparations.  Based upon these factors the court concluded no harm to the defense and affirmed the case.

D. MRE 503.  Communications to Clergy. 

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MRE 503. Communications to clergy

(a)  General Rule. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

(b)  Definitions. As used in this rule:

(1)  "Clergyman" means a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.

(2)  "Clergyman's assistant" means a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.

(3)  A communication is "confidential" if made to a clergyman in the clergyman's capacity as a spiritual adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.

(c)  Who May Claim the Privilege. The privilege may be claimed by the person, guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's assistant to do so is presumed in the absence of evidence to the contrary.

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1. This privilege protects communications made as a formal act of religion or conscience.  The privilege may be claimed by the penitent or in the absence of contrary evidence, by the clergyman or his/her assistant.  United States v. Napoleon, 46 M.J. 279 (1997).  For privilege to apply, the communication must: be made either as a formal act of religion or as matter of conscience; be made to a clergyman in his or her capacity as a spiritual advisor or to a clergyman’s assistant in his or her capacity as an assistant to a spiritual advisor; and be intended to be confidential.  Note that the privilege was amended in 2007 to include communications made to a clergyman’s assistant.  A “clergyman’s assistant” is “a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.” See MRE 503(b)(2).

2. United States v. Benner, 57 MJ 210 (2002).  The CAAF reversed the case, holding that when a chaplain meets with a penitent, MRE 503 allows the disclosing person to prevent the chaplain from disclosing the contents of the statement when it was made as a formal act of religion or as a matter of conscience.  In this case the chaplain spoke with the accused and then informed him that army regulations would force the chaplain to disclose the confession of the accused. That was an erroneous statement of the Army’s regulation governing chaplains.  Based upon statements made by the chaplain the accused then made an involuntary confession to CID agents after the chaplain took him to the MP station. The CAAF held that the confession was involuntary, and under a totality of the circumstances test could not be deemed admissible.

3. In United States v. Shelton, 64 M.J. 32 (C.A.A.F. 2006), the CAAF held that communications made to a civilian minister acting as a marital counselor were covered by the attorney-client privilege. 

E. MRE 504.  Marital Privilege.

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MRE 504. Marital privilege

(a)  Spousal Incapacity. A person has a privilege to refuse to testify against his or her spouse. There is no privilege under subdivision (a) when, at the time of the testimony, the parties are divorced, or the marriage has been annulled.

(b)  Confidential Communication Made During the Marriage.

(1)  General Rule. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were married and not separated as provided by law.

(2)  Who May Claim the Privilege. The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.

(c) Exceptions.

(1) To Confidential Communications Only. Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b) and are not entitled to protection under the privilege in subdivision (b).

(2) To Spousal Incapacity and Confidential Communications. There is no privilege under subdivisions (a) or (b):

(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;

(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other, or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or

(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 18 U.S.C. § 1328; with transporting the other spouse in interstate commerce for prostitution, immoral purposes, or another offense in violation of 18 U.S.C. §§ 2421–2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.

(d) Definitions. As used in this rule:

(1) “A child of either” means a biological child, adopted child, or ward of one of the spouses and includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is:

(A) an individual under the age of 18; or

(B) an individual with a mental handicap who functions under the age of 18.

(2) “Temporary physical custody” means a parent has entrusted his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody, nor is a written agreement required. Rather, the focus is on the parent’s agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of his or her child for recurring care or during absences due to temporary duty or deployments.

(3) As used in this rule, a communication is “confidential” if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.

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1. MRE 504 reflects the Supreme Court’s decision in Trammel v. United States, 445 U.S. 40 (1998), in which the Court held that the witness spouse alone has a privilege to refuse to testify, and a defendant spouse may assert only the privilege concerning confidential communications.  Thus, one spouse may refuse to testify against the other.  Confidential communications made during marriage are privileged, and that privilege may be asserted by the spouse who made the communication, or on his behalf by or the spouse to whom it was made during or after the marital relationship.  See United States v. Durbin, 68 M.J. 271 (C.A.A.F. 2010) (allowing a witness spouse to testify concerning statements she made during a confidential marital communication so long as those statements did not repeat or reveal the accused spouse’s privileged statements). 

2. The rule contains several exceptions to the privilege, most importantly: (1) when the accused is charged with a crime against the person or property of the spouse or a child of either, and (2) when, at the time of the testimony is to be given, the marriage has been terminated by divorce or annulment.  To prevent unwarranted discrimination among child victims, the term “a child of either” was amended in 2007 to include “not only a biological child, adopted child, or ward of one of the spouses but also includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship.  For purposes of this rule only, a child is: (i) an individual under the age of 18; or (ii) an individual with a mental handicap who functions under the age of 18.”  Prior to this amendment, there was no de facto child privilege in the military.  See United States v. McCollum, 58 M.J. 323( C.A.A.F. 2003) (holding that MRE 504(c)(2)(A) requires a lawful parental relationship, as opposed to a custodial relationship, to trigger the “child of either” exception).  

3. Adultery.  United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007).  Adultery constitutes a crime “against the person or property of the other spouse.”  Thus, when one spouse is charged with adultery, the marital privilege, pursuant to MRE 504(c)(2)(A) does not apply to communications involving the adultery. 

4. Presumption of Confidentiality.  In United States v. McCollum, 58 M.J. 323 (2003), the appellant raped his wife’s 14-year-old sister, who was staying with the family for a summer visit.  He made several statements to his wife about the incident.  At trial, the military judge admitted two of the statements, claiming that the appellant did not establish the intent to hold the communications confidential. The CAAF reversed, holding that marital communications carry a presumption of confidentiality.  Once the party asserting the privilege has established that the communication was made privately during a valid marriage, the burden shifts to the opposing party to overcome the presumption.  

5. Joint-Participant Exception.  Although civilian federal courts recognize the joint-participant exception to the marital privilege, the joint-participant exception does not apply in military cases.  See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007).  In Custis, the CAAF reasoned that unlike privileges in the federal civilian courts that evolve based on case law, privileges in the military system are specifically delineated.  Hence, the only exceptions are those expressly authorized.  Consequently, there is no joint-participant exception to the marital privilege.  Note that the ACCA in United States v. Davis, 61 M.J. 530 (A. Ct. Crim. App. 2005) had previously recognized a joint-participant exception to marital communications privilege.

F. MRE 509.  Deliberations of Courts and Juries.

1. MRE 509 preserves the sanctity of the factfinder’s deliberative process. 

2. MRE 606(b) provides an exception and permits intrusion into the factfinder’s deliberative process when there are questions concerning:

a) Whether extraneous prejudicial information was brought to bear upon any member;

b) Whether any outside influence was improperly brought to the member’s attention; or

c) Whether there was unlawful command influence.

3. Note that the deliberative process of military judges, like that of a panel, is protected from post-trial inquiry.  United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009).   

G. MRE 513.  Psychotherapist Patient Privilege.

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MRE 513. Psychotherapist-patient privilege

(a)  General Rule. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.

(b)  Definitions. As used in this rule:

(1)  "Patient" means a person who consults with or is examined or interviewed by a psychotherapist for purposes of advice, diagnosis, or treatment of a mental or emotional condition.

(2)  "Psychotherapist" means a psychiatrist, clinical psychologist, clinical social worker, or other mental health professional who is licensed in any State, territory, possession, the District of Columbia, or Puerto Rico to perform professional services as such, or who holds credentials to provide such services as such, or who holds credentials to provide such services from any military health care facility, or is a person reasonably believed by the patient to have such license or credentials.

(3)  "Assistant to a psychotherapist" means a person directed by or assigned to assist a psychotherapist in providing professional services, or is reasonably believed by the patient to be such.

(4)  A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication.

(5)  "Evidence of a patient's records or communications" means testimony of a psychotherapist, or assistant to the same, or patient records that pertain to communications by a patient to a psychotherapist, or assistant to the same, for the purposes of diagnosis or treatment of the patient's mental or emotional condition.

(c)  Who May Claim the Privilege. The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

(d)  Exceptions. There is no privilege under this rule:

(1)  when the patient is dead;

(2)  when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;

(3)  when federal law, state law, or service regulation imposes a duty to report information contained in a communication;

(4)  when a psychotherapist or assistant to a psychotherapist believes that a patient's mental or emotional condition makes the patient a danger to any person, including the patient;

(5)  if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;

(6)  when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; or

(7)  when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or MRE 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice.

 

(e)  Procedure to Determine Admissibility of Patient Records or Communications.

(1)  In any case in which the production or admission of records or communications of a patient other than the accused is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

(A)  file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B)  serve the motion on the opposing party, the military judge and, if practical, notify the patient or the patient's guardian, conservator, or representative that the motion has been filed and that the patient has an opportunity to be heard as set forth in subdivision (e)(2).

(2)  Before ordering the production or admission of evidence of a patient's records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the patient, and offer other relevant evidence. The patient must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a case before a court-martial comprised of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

(3)  The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:

(A) a specific, credible factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;

(B) that the requested information meets one of the enumerated exceptions under subdivision(d) of this rule;

(C)  that the information sought is not merely cumulative of other information available; and

(D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.

(4)  Any production or disclosure permitted by the military judge under this rule must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subsection (d) of this MRE and are included in the stated purpose for which the records or communications are sought under subsection (e)(1)(A) of this MRE .

(5)  To prevent unnecessary disclosure of evidence of a patient's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

(6)  The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

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1. MRE 513 is a now-distant derivative of the Supreme Court’s decision in Jaffe v. Redmond 518 U.S. 1 (1996), and safeguards the confidentiality of communications between patients and psychotherapists and other counselors.  The privilege applies “at all stages of a case or proceeding” (see MRE 1101(c)) in actions arising under the UCMJ, but it is not a broader doctor-patient privilege (which is excluded from the Rules under MRE 501(d)).  While military courts were initially reluctant to implement psychotherapist-patient privilege, the rule has become more firmly rooted over time, and has been recently modified by statute.

a) United States v. Rodriguez, 54 M.J. 156 (2000).  The CAAF affirmed the Army Court’s ruling that Jaffee v. Redmond did not create a psychotherapist-patient privilege in the military. 

b) United States v. Paaluhi, 54 M.J. 181 (2000).  Consistent with Rodriguez, the court ruled that Jaffe v. Redmond did not create a psychotherapist-patient privilege in the military.  The CAAF reversed the conviction on other grounds, finding ineffective assistance on the part of defense counsel to tell the accused to talk to a Navy psychologist without first having the psychologist appointed to the defense team.

c) While Rodriguez and Paaluhi were not decided until 2000, in 1999 President Clinton directed the inclusion of MRE 513 in Executive Order 13,140 (6 October 1999).

d) United States v. Jenkins, 63 M. J. 426 (C.A.A.F. 2006).  Doctor’s testimony was permitted under MRE 513(d)(4) and (6) because the privilege under MRE 513 reflects a more limited privilege based on the “specialized society” of the military and “the needs of military readiness and national security.”

e) United States v. Bazar, 2012 WL 2505280 (A.F.C.C.A. 2012).  Judge did not allow evidence from mental health records to impeach victim during sentencing; not constitutionally required and properly excluded by MRE 403.

f) United States v. Hudgins, 2014 CCA LEXIS 227 (A.F.C.C.A. 2014).  Mental health records indicating marginal dissatisfaction with relationship do not meet the “constitutionally required” standard.

g) United States v. Klemick, 65 M.J. 576 (N–M. C.C.A., 2006). In Klemick, the N–M. C.C.A. considered what threshold should apply to directing the production of privileged psychotherapist-patient records under MRE 513.  Finding no precedent in military or federal case law, the court turned to analyze state law on the issue.  The court ultimately adopted the treatment afforded these records under a Wisconsin state court decision.  Finding that “a threshold showing is required prior to an in camera review” of privileged communications, based on three considerations:

(1) Did the moving party set forth a specific factual basis demonstrating a reasonable likelihood that the requested privileged records would yield evidence admissible under an exception to MRE 513;

(2) Is the information sought merely cumulative of other information available; and

(3) Did the moving party make reasonable efforts to obtain the same or substantially similar information from unprivileged sources? Klemick, 65 M.J. 576, at 580. 

2. Statutory amendments.  The standard announced in Klemick was adopted (with an additional element) by Congress in the changes to MRE 513 mandated by the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 (2014) [hereinafter 2015 NDAA]. In general, those provisions Congress added in the 2015 NDAA clarify the scope of the privilege, curtail exceptions, enhance procedural remedies for patients, and make it more difficult to obtain and admit privileged matter. The 2015 NDAA also added an enforcement mechanism for MREs 412 and 513 by amending Article 6b of the UCMJ to provide that victims who believe their rights under those rules have been violated by the military judge may petition the Courts of Criminal Appeals (CCA) for a writ of mandamus. See 2015 NDAA, § 535 (2014). Congress subsequently amended Article 6b to both expand and extend that mandamus practice to include MREs 514 and 615, as well as permitting victims to seek a writ from the decisions of a Preliminary Hearing Officer at Article 32 hearings. See § 531 of the National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 (2015) [hereinafter 2016 NDAA].

3. The rule. The most prominent feature of the modifications directed in the FY 2015 NDAA was removal of the “constitutionally required” exception under MRE 513(d)(8). In addition, MRE 513(e)(3) imposes a clearly stated burden of proof (preponderance of the evidence) where a party seeks production of privileged records or communications (even for in camera review). Because the modified Klemick standard announced in the rule requires proof by a preponderance that “the requested information meets one of the enumerated exceptions under subsection (d)[,]” (emphasis added)  in theory a party cannot prevail on a motion for production or admissibility of privileged records because the “constitutionally required” exception is no longer enumerated. This issue has not yet been directly addressed by C.A.A.F.  However, the Army Court of Criminal Appeals in Lk v. Acosta, 76 M.J. 611 (A.C.C.A 2017), discussed the constitutional exception’s removal.  In its opinion, A.C.C.A distinguishes the right to discovery and the 6th Amendment right to a fair trial.  The opinion makes it clear that Congress cannot remove the constitutional considerations for admissibility of such evidence and reminds parties that there is no constitutional right to discovery.  The Navy Marine Corps Court of Appeals (N.M.C.C.A) reached a similar conclusion with respect to Congress’ ability to remove 6th Amendment considerations in J.M. v. Payton-O-Brien, 76 M.J. 782 (N.M.C.C.A 2017).  Like A.C.C.A, the N.M.C.C.A concluded that removing the exception did not remove the constitutional reach of the 6th Amendment at trial, however, the court did not distinguish the right to discovery of privileged information from the right to have the privileged information admitted at trial.  Thus when a judge concludes that the Constitution requires an in camera review or subsequent admission at trial, the privilege must be waived or the court should provide a remedy (e.g. abatement).

4. Cases. The military courts have, however, addressed jurisdiction and procedural defects encountered at trial.

a) In D.B. v. Lippert in re Ducksworth, 2016 CCA LEXIS 63 (A.C.C.A., 2016), the Army appellate court set aside the trial court’s ruling on MRE 513 because the trial judge directed production of the records prior to conducting the required hearing under MRE 513(e). In addition, ACCA noted that the modification of Article 6b established a distinct basis for jurisdiction at the CCA. Id. at 4. 

b) In E.V. v. United States, 75 M.J. 331, 334 (C.A.A.F., 2016), CAAF dismissed a victim’s petition for review and held that, while Article 6b is an independent grant of jurisdiction to the CCAs, it does not grant appellate jurisdiction of those petitions at CAAF. In Randolph v. H.V., 76 M.J. 27 (C.A.A.F. 2017), the CAAF reaches the same conclusion in dismissing a petition for review of the Coast Guard CCA brought by the accused.

c) In Lk v. Acosta, 76 M.J. 611 (A.C.C.A 2017), the Army appellate court held that MRE 513 is not a rule of discovery, and the judge’s ruling that a child’s records had to be produced was made without benefit of the court’s conclusion that the exception to the privilege in MRE 513(d)(2), which allowed release of records in cases where an alleged victim was a child of the accused’s spouse, applied only to admission of privileged communications at trial.

5. Quasi psychotherapist-patient privilege also exists under limited circumstances:

a) Where psychiatrist or psychotherapist is detailed to assist the defense team, communications are protected as part of attorney-client confidentiality.  United States v. Tharpe, 38 M.J. 8, 15 n.5 (C.M.A. 1993).

b) Communications made by an accused as part of a sanity inquiry under MRE 302.  United States v. Toledo, 26 M.J. 104 (C.M.A. 1988), cert. denied, 488 M.J. 889 (1988).  Note that confidentiality privilege for statements made during mental responsibility exams may not automatically apply retroactively to exams which the military judge deems as adequate substitute for court-ordered RCM 706 examinations.  United States v. English, 44 M.J. 612 (N-M. Ct. Crim. App. 1996), rev’d on other grounds, 47 M.J.  215 (1997).

H. MRE 514.  Victim Advocate-Victim Privilege.

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MRE 514. Victim advocate-victim and Department of Defense Safe Helpline staff-victim privilege.

 

(a) General rule. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.

(b) Definitions. As used in this rule:

(1) “Victim” means any person who is alleged to have suffered direct physical or emotional harm as the result of a sexual or violent offense.

(2) “Victim advocate” means a person who:

(A) is designated in writing as a victim advocate in accordance with service regulation;

(B) is authorized to perform victim advocate duties in accordance with service regulation and is acting       

 in the performance of those duties; or

(C) is certified as a victim advocate pursuant to federal or state requirements.

(3) “Department of Defense Safe Helpline staff” are persons who are designated by competent authority in writing as Department of Defense Safe Helpline staff.

(4) A communication is “confidential” if made in the course of the victim advocate-victim relationship or Department of Defense Safe Helpline staff-victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.

(5) “Evidence of a victim’s records or communications” means testimony of a victim advocate or Department of Defense Safe Helpline staff, or records that pertain to communications by a victim to a victim advocate or Department of Defense Safe Helpline staff, for the purposes of advising or providing assistance to the victim.

(c) Who may claim the privilege. The privilege may be claimed by the victim or the guardian or conservator of the victim. A person who may claim the privilege may authorize trial counsel or a counsel representing the victim to claim the privilege on his or her behalf. The victim advocate or Department of Defense Safe Helpline staff who received the communication may claim the privilege on behalf of the victim. The authority of such a victim advocate, Department of Defense Safe Helpline staff, guardian, conservator, or a counsel representing the victim to so assert the privilege is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) when the victim is dead;

(2) When federal law, state law, Department of Defense regulation, or service regulation imposes a duty to report information contained in a communication;

(3) When a victim advocate or Department of Defense Safe Helpline staff believes that a victim’s mental or emotional condition makes the victim a danger to any person, including the victim;

(4) If the communication clearly contemplated the future commission of a fraud or crime, or if the services of the victim advocate or Department of Defense Safe Helpline staff are sought or obtained to enable or aid anyone to commit or plan to commit what the victim knew or reasonably should have known to be a crime or fraud;

(5) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; or

(6) when admission or disclosure of a communication is constitutionally required.

(e) Procedure to Determine Admissibility of Victim Records or Communications.

(1) In any case in which the production or admission of records or communications of a victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) serve the motion on the opposing party, the military judge and, if practicable, notify the victim or the victim’s guardian, conservator, or representative that the motion has been filed and that the victim has an opportunity to be heard as set forth in subdivision (e)(2).

(2) Before ordering the production or admission of evidence of a victim’s records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence. The victim must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims’ Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

(3) The military judge may examine the evidence, or a proffer thereof, in camera if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:

(A) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;

(B) that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;

(C) that the information sought is not merely cumulative of other information available; and

(D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.

(4) Any production or disclosure permitted by the military judge under this rule must be narrowly tailored

to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subsection (d) of this rule and are included in the stated purpose for which the records or communications are sought under subsection (e)(1)(A) of this rule.

(5) To prevent unnecessary disclosure of evidence of a victim’s records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

(6) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or appellate court orders otherwise.

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1. MRE 514 creates a privilege for confidential communications between victims of sexual or violent offenses and their victim advocate.  Confidential communications protected under this rule are those that made “in the furtherance of the rendition of advice or assistance.”  MRE 514(b)(3). 

2. “A communication is ‘confidential’ if made in the course of the victim advocate – victim relationship . . . and not intended to be disclosed to third persons.”  MRE 514 (b)(4).  When communications are made in the presence third parties, or when otherwise confidential communications are revealed to third parties, the communications are not generally confidential and thus not protected by the privilege.  United States v. Harpole,77 M.J. 231, 235 (C.A.A.F. 2018), citing United States v. McElhaney, 54 M.J. 120, 131-2 (C.A.A.F 2000).  However, relationships by blood, marriage, or a “commonality of interest” between the holder of the privilege and the third party may keep the privilege intact.  United States v. Shelton, 64 M.J. 32 at 39 (C.A.A.F. 2005) (quoting In re Grand Jury Investigation, 918 F. 2d 374, 385-88 (3d Cir. 1990)). 

3. The plain meaning of the phrase, in the furtherance of the rendition of advice or assistance, “requires the communication to the third person to be for the purpose of facilitating the victim advocate in providing advice or assistance to the victim.” United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). 

4. The party claiming the privilege has the burden of proof by a preponderance of the evidence.  United States v. McCollum, 58 M.J. 323, 336 (C.A.A.F. 2003). 

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XIII. WITNESS Rules

A. Rule 601.  Competency.

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MRE 601. Competency to testify in general

Every person is competent to be a witness unless these rules provide otherwise.

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1. The rule eliminates the categorized disabilities which existed at common law and under prior military law.  United States v. Morgan, 31 M.J. 43 (C.M.A. 1990), cert. denied, 498 U.S. 1085 (1991).  The very young (4 year old child here) are competent, even if hesitant, apprehensive, and afraid.

2. In the event that the competency of a witness is challenged, e.g., a child, the proponent of the witness must demonstrate that the witness has: capacity to observe; capacity to remember; capacity to relate; and recognition of the duty to tell the truth.

B. MRE 602.  Personal Knowledge.

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MRE 602. Need for personal knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under MRE 703.

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1. As long as the panel could find that the witness perceived the event, the testimony should be admitted.  Note, however, the term “sufficient,” which affirms that the military judge retains power to reject evidence if it could not reasonably be believed.

2. To demonstrate personal knowledge, the proponent must show the witness was in a position to perceive the event, and did actually perceive it.

C. MRE 605.  The military judge.

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MRE 605. Military judge's competency as a witness

(a)        The presiding military judge may not testify as a witness at any proceeding of that court-martial. A party need not object to preserve the issue.

(b)        This rule does not preclude the military judge from placing on the record matters concerning docketing of the case.

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1. United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991).   Without any supporting evidence at trial, the military judge used his own specialized knowledge of drug use in Germany to conclude the accused used hashish instead of leaf marijuana, how a pipe was used in the process, and that the charged offense was not the accused’s first use of marijuana.  In doing so, the judge became a witness, was disqualified, and all actions from then on were void.

2. The rule is an exception to Rule 103 waiver rule.  It does not apply to:

a) Subsequent proceedings concerning trial presided over; e.g., limited rehearing such as those ordered pursuant to United States v. Dubay, 37 C.M.R. 411 (C.M.A. 1967).

b) Judicial notice under MRE 201.

D. MRE 607.  Who May Impeach. 

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MRE 607. Who may impeach a witness

Any party, including the party that called the witness, may attack the witness's credibility.

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1. Under prior practice, the party calling a witness was said to “vouch” for the witness.  Ordinarily, that meant the party could not attack the credibility of that witness.  That is no longer the case.  Under the current rules a party may impeach its own witness, and may even call a witness for the sole purpose of impeachment. See 2013 Supplement to Manual for Courts-Martial, at A22–54.

2. MRE 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.”  The rule contemplates impeachment, however, not the attempted introduction of evidence which otherwise is hearsay.  Put differently, the Government may not use impeachment by prior inconsistent statement as a “subterfuge” to avoid the hearsay rule.  United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985).  United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996), cert. denied, 117 S. Ct.  692 (1997).

E. Methods of Impeachment.

1. Attacks focused on: Defects in capacity to observe, remember or relate; untruthful character; bias, partiality, interest in the outcome; prior convictions; prior inconsistent statements; or delay in reporting abuse or subsequent recantation.

2. Defects in Capacity.  Here the focus is on the witness’s ability to observe, remember, and relate the information.

a) Observation.  The common mode of attack is that the witness could not adequately see/hear the incident in question because of poor lighting, cross-racial identification problems, distance from the scene, etc.

b) Recall.  Because of the witness’s age, mental condition at the time of the incident or at the time of trial, time lapse between the incident and their in-court testimony, etc., the witness cannot accurately remember the incident.

c) Relate.  Because of the witness’s age, mental condition, lack of expertise, etc., the witness cannot accurately relate the information.

F. MRE 608.  Untruthful Character.

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MRE 608. A witness's character for truthfulness or untruthfulness

(a)  Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

(b)  Specific Instances of Conduct. Except for a criminal conviction under MRE 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. The military judge may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1)  the witness; or

(2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

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1. Once a witness testifies, including the accused or a hearsay declarant, his or her credibility becomes an issue.  Evidence of character is then relevant.  MRE 608(a) limits the relevance to truthfulness or untruthfulness.  Methods of proving character are set out in MRE 405.  Under 608(a), the character must be attacked before it may be rehabilitated.  Thus, bolstering is prohibited by the rule.  Once attacked, the witness’ character for being truthful may be rehabilitated with opinion or reputation evidence.  See United States v. Jenkins, 50 M.J. 577 (N. M. Ct. Crim. App. 1999), witness cannot comment directly about the credibility of another witness’s testimony. 

a) The foundational elements:

(1) Reputation witness must show he or she is a member of the same community as the witness to be attacked or rehabilitated and that he or she has lived or worked there long enough to have become familiar with the witness’ reputation for truthfulness or the untruthfulness.  United States v. Toro, 37 M.J. 313 (C.M.A. 1993).

(2) Opinion witness must demonstrate that he or she is personally acquainted with witness and on that basis is able to have formed an opinion about the truthfulness or the lack thereof.  United States v. Perner, 14 M.J. 181 (C.M.A. 1982).

b) When cross-examination is conducted in such a manner as to induce the belief of untrustworthiness, rehabilitation is permitted.  United States v. Allard, 19 M.J. 346 (C.M.A. 1985).  Also, a “slashing cross-examination” will satisfy the “or otherwise” component of MRE 608(a).  United States v. Everage, 19 M.J. 189 (C.M.A. 1985).  Note, however, that merely introducing evidence that contradicts a witness’s testimony or statement is not an “or otherwise” attack under MRE 608(a). 

c) MRE 608(b)(2) provides that a character witness can be asked questions about specific acts of the person whose credibility has been attacked or rehabilitated as a means of “testing” the character witness.

2. The questioner is precluded from introducing extrinsic evidence in support of his inquiry.  This avoids a “trial within a trial.”  If witness denies knowledge of the specific acts, no extrinsic evidence of specific acts is permitted.  You are “stuck with the answer.”  United States v. Cerniglia, 31 M.J. 804 (AFCMR 1991). 

a) Operation of the “Collateral Fact Rule.”  Under the rule, extrinsic evidence is inadmissible to impeach witnesses on collateral facts.  The purpose of the rule is to prevent digression into unimportant matters, since the potential for wasting time and confusing the factfinder is particularly high when extrinsic evidence is used to impeach.  It does not limit the cross-examiner’s questioning a witness about collateral facts, subject to the general discretion of the court.

(1) The rule applies to: Impeachment under MRE 608(b) and the cross-examination of a character witness under MRE 405(a).

(2) When the rule does not apply, the cross-examiner may question the witness and offer extrinsic evidence.  The rule does not apply to:

(a) Bias under MRE 608(c);

(b) Defects in capacity. See United States v. White, 45 M.J. 345 (C.A.A.F. 1996);

(c) Prior inconsistent statements under MRE 613 and 801(d)(1)(A);

(d) Impeachment by contradiction; or

(e) Impeachment under Mil.R.Evid. 609.

b) “Human Lie Detector” Testimony.  In United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003), the CAAF held that “human lie detector” testimony by an OSI agent violates the limits on character evidence in MRE  608(a) because it offers an opinion of the declarant’s truthfulness on a specific occasion.  At trial, an OSI agent testified that her training had helped her to identify whether subjects were being truthful in interviews. In United States v. Knapp, 73 M.J. 33 (C.A.A.F. 2014), CAAF found similar techniques evaluating nonverbal cues of an accused during an interview to be inadmissible human lie detector testimony, and set aside the findings and sentence.

G. MRE 608(c):  Bias.

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MRE 608. A witness's character for truthfulness or untruthfulness

(c)  Evidence of Bias. Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

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1. Ulterior motives are never collateral and may be proved extrinsically.  The three categories under 608(c) are a representative list, not an exhaustive one.

2. Rules should be read to allow liberal admission of bias-type evidence. United States v. Hunter, 21 M.J. 240 (C.M.A. 1986), cert. denied, 476 U.S. 1142 (1986).  See United States v. Aycock, 39 M.J. 727 (N.M.C.M.R. 1993) (the military judge abused his discretion and committed prejudicial error in excluding extrinsic evidence of a government witness’ bias and motive to testify falsely (anger and resentment toward the appellant through loss of $195 wager)).  But see United States v. Sullivan, 70 M.J. 110 (C.A.A.F. 2011) (requiring a stronger showing other than the mere fact that a victim has undergone psychological counseling to inquire into a victim’s medical history in order to attack victim’s bias and credibility). 

3. Constitutional dimensions: 

a) United States v. Bahr, 33 M.J. 228 (C.M.A. 1991).  14 year-old prosecutrix testified concerning sodomy and indecent acts by her stepfather.  Defense sought to introduce extracts from her diary showing a profound dislike of her mother and home life.  The military judge ruled the extracts were inadmissible, and kept the defense from examining the prosecutrix concerning a prior false claim of rape, and alleged advice to her friends to turn in their family members for child sexual abuse.  These rulings were evidentiary and constitutional error.  Prosecutrix’s hatred of her mother could be motive to hurt mother’s husband. 

b) United States v. Moss, 63 M.J. 233 (2006).  Does the exclusion of evidence of bias under MRE 608(c) raise issues regarding an accused’s Sixth Amendment right to confrontation?  Yes.  An accused’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes an accused from exploring an entire relevant area of cross-examination.  The military judge erred when he excluded evidence that the accused sought in order to challenge the credibility of the alleged victim.  It is the members’ role to determine whether an alleged victim’s testimony is credible or biased.  As such, bias evidence, if logically and legally relevant, are matters properly presented to the members. 

c) The test is to determine whether a limitation on the presentation of evidence of bias constitutes a Sixth Amendment violation is “whether ‘[a] reasonable jury might have received a significantly different impression of [the witness’s] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.’”  United States v. Collier, 67 M.J. 347, 352 (C.A.A.F. 2009).

H. MRE 609.  Impeachment with a Prior Conviction.

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MRE 609. Impeachment by evidence of a criminal conviction

(a)  In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

(1)  For a crime that, in the convicting jurisdiction, was punishable by death, dishonorable discharge, or by imprisonment for more than one year, the evidence:

(A)  must be admitted, subject to Mil. R. Evid. 403, in a court-martial in which the witness is not the accused; and

(B)  must be admitted in a court-martial in which the witness is the accused, if the probative value of the evidence outweighs its prejudicial effect to that accused; and

(2)  For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement.

(3)  In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.

(b)  Limit on Using the Evidence After 10 Years. Subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1)  its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2)  the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c)  Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1)  the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death, dishonorable discharge, or imprisonment for more than one year; or

(2)  the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d)  Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1)  the adjudication was of a witness other than the accused;

(2)  an adult's conviction for that offense would be admissible to attack the adult's credibility; and

(3)  admitting the evidence is necessary to fairly determine guilt or innocence.

(e)  Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending, except that a conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of impeachment until review has been completed under Article 64 or Article 66, if applicable. Evidence of the pendency is also admissible.

(f)  Definition. For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has been adjudged.

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1. This method of impeachment can be done in cross-examination, with extrinsic evidence, or both.  An important element in the analysis is the type of crime for which the witness was convicted.

2. Crimen falsi convictions are crimes such as perjury, false statement, fraud, or embezzlement, which involve deceitfulness or untruthfulness bearing on the witness’s propensity to testify truthfully.  For crimen falsi crimes, the maximum punishment is irrelevant and the military judge must admit proof of the conviction. 

3. Non crimen falsi crimes involve convictions for offenses punishable by death, dishonorable discharge, or imprisonment in excess of one year under the law of the prosecuting jurisdiction.  The key is the maximum punishment the witness faced, not the actual punishment the witness received.

a) Balancing test for witnesses:  Admissibility of non crimen falsi convictions of witnesses is governed by MRE 403.  The military judge can exclude this evidence if the probative value is substantially outweighed by unfair prejudice.

b) Balancing test for the accused witness:  Admissibility of non crimen falsi convictions of the accused is more restrictive than MRE 403.  Convictions are only admissible if the military judge determines the probative value outweighs the prejudicial effect.   See United States v. Ross, 44 M.J. 534 (A.F. Ct. Crim. App. 1996).

4. Time Limit.  Conviction generally inadmissible if more than 10 years old.  May be admitted if: Interests of justice require; probative value substantially outweighs prejudicial effect; proponent provides other party with notice.  Although not specifically stated in the rule, most commentators believe the ten year limitation applies to crimen falsi as well as non crimen falsi convictions. 

5. Juvenile Adjudications.  Generally not admissible unless necessary to a fair resolution of the case, and evidence would have been admissible if witness previously had been tried as an adult.  Juvenile proceedings may be used against an accused in rebuttal when he testifies that his record is clean.  See United States v Kindler, 14 C.M.A. 394 (C.M.A. 1964). 

6. Summary courts-martial are allowed only if the accused was represented by counsel or representation was affirmatively waived.  United States v. Rogers, 17 M.J. 990 (A.C.M.R. 1984).

I. MRE  613.  Impeachment with Prior Statements.

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MRE 613. Witness's prior statement

(a)  Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. The party must, on request, show it or disclose its contents to an adverse party's attorney.

(b)  Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. Subdivision (b) does not apply to an opposing party's statement under MRE 801(d)(2).

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1. Evidence that on a previous occasion a witness made a statement inconsistent with his or her present testimony is “probably the most effective and most frequently employed” attack on witness credibility.  Saying one thing on the stand and something different previously raises a doubt as to the truthfulness of both statements.  A prior inconsistent statement (PIS) casts doubt on the general credibility of the declarant.  Such evidence is considered only for purposes of credibility, not to establish the truth of the contents (avoiding a hearsay issue).  Thus, a limiting instruction would be appropriate.

2. A witness may be impeached with competent evidence to show that he or she made a previous statement, oral or written, inconsistent with his or her in-court testimony.  The evidence may be:

a) Intrinsic:  controlled by 613(a), involving interrogation of the witness concerning the prior statement, or

b) Extrinsic:  controlled by 613(b), involving extrinsic proof (testimony or documents) of the inconsistent statement.

3. Impeachment, however, is not the only possible use of a prior inconsistent statement.  Pursuant to MRE 801(d)(1)(A), such statements are admissible substantively, and may be considered by the fact-finder for the truth of the matter asserted, as an exemption to the rule against hearsay when three requirements are met:  The statement is inconsistent with the declarant’s testimony; the declarant made the statement under oath subject to the penalty of perjury; and the statement was made at a trial, hearing, or other proceeding, or in a deposition.

J. MRE 611.  Mode and Order of Interrogation and Presentation

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MRE 611. Mode and order of examining witnesses and presenting evidence

(a)  Control by the Military Judge; Purposes. The military judge should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1)  make those procedures effective for determining the truth;

(2)  avoid wasting time; and

(3)  protect witnesses from harassment or undue embarrassment.

(b)  Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The military judge may allow inquiry into additional matters as if on direct examination.

(c)  Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the military judge should allow leading questions:

(1)  on cross-examination; and

(2)  when a party calls a hostile witness or a witness identified with an adverse party.

(d)  Remote live testimony of a child.

(1)  In a case involving domestic violence or the abuse of a child, the military judge must, subject to the requirements of subdivision (d)(3) of this rule, allow a child victim or witness to testify from an area outside the courtroom as prescribed in R.C.M. 914A.

(2)  Definitions. As used in this rule:

(A)  "Child" means a person who is under the age of 16 at the time of his or her testimony.

(B)  "Abuse of a child" means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.

(C)  "Exploitation" means child pornography or child prostitution.

(D)  "Negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to endanger seriously the physical health of the child.

(E)  "Domestic violence" means an offense that has as an element the use, or attempted or threatened use of physical force against a person by a current or former spouse, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim.

(3)  Remote live testimony will be used only where the military judge makes the following three findings on the record:

(A)  that it is necessary to protect the welfare of the particular child witness;

(B)  that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and

(C)  that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis.

(4)  Remote live testimony of a child will not be used when the accused elects to absent himself from the courtroom in accordance with R.C.M. 804(d).

(5)  In making a determination under subdivision (d)(3), the military judge may question the child in chambers, or at some comfortable place other than the courtroom, on the record for a reasonable period of time, in the presence of the child, a representative of the prosecution, a representative of the defense, and the child's attorney or guardian ad litem.

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1. This rule is the basic source of the military judge’s authority to control proceedings at court-martial.

2. Scope of examination.

a) United States v. Stavely, 33 M.J. 92 (1992). C.M.A. held that when cross-examination goes to witness credibility, military judge should afford counsel wide latitude.

b) United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990).  An accused who chooses to testify on the merits is subject to same cross-examination as any other witness. Here, TC did not impermissibly comment on right to counsel when he asked accused if he saw a lawyer before making a pretrial statement.

c) Controlling examination to avoid constitutional problems.  In United States v. Mason, 59 M.J. 416 (C.A.A.F. 2004), the CAAF held that it was error to permit a trial counsel to ask on re-direct whether the accused had ever requested a re-test of the DNA evidence in his case, because the question tended to improperly shift the burden of proof in the case to the defense.

d) Alternatives to in-court testimony.  The 1995 Amendments to Drafter’s Analysis provides that “when a witness is unable to testify due to intimidation by the proceedings, fear of the accused, emotional trauma, or mental or other infirmity, alternatives to live in-court testimony may be appropriate.

K. MRE 612.  Refreshing Recollection.

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MRE 612. Writing used to refresh a witness's memory

(a)  Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1)  while testifying; or

(2)  before testifying, if the military judge decides that justice requires the party to have those options.

(b)  Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated or privileged matter, the military judge must examine the writing in camera, delete any unrelated or privileged portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c)  Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the military judge may issue any appropriate order. If the prosecution does not comply, the military judge must strike the witness's testimony or—if justice so requires—declare a mistrial.

(d)  No Effect on Other Disclosure Requirements. This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this Manual.

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1. This is NOT MRE 803(5), the recorded recollection hearsay exception. 

2. Foundation and Procedure.  Show the memory of the witness has failed; show there is some means available which will refresh the recollection of the witness; have the witness read/examine the refreshing document silently; recover the refreshing document; proceed with questioning; make the refreshing document an appellate exhibit and append it to the record of trial; protect privileged matters contained in the writing; nothing is read into the record.  Refreshing document need not be admissible; and opposing counsel may inspect the writing, use it in cross examination, and introduce it into evidence.

XIV. EXPERTS AND SCIENTIFIC EVIDENCE

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MRE 702. Testimony by expert witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a)  the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b)  the testimony is based on sufficient facts or data;

(c)  the testimony is the product of reliable principles and methods; and

(d)  the expert has reliably applied the principles and methods to the facts of the case.

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A.MRE 702.  Expert Witnesses

1. Trial judges decide preliminary questions concerning the relevance, propriety and necessity of expert testimony, the qualification of expert witnesses, and the admissibility of his or her testimony.  See MRE 104(a).

a) United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005), the CAAF held “Article 46 is a clear statement of congressional intent against government exploitation of its opportunity to obtain an expert vastly superior to the defense’s.”  Where the government provides itself with a top expert, it must provide a reasonably comparable expert to the defense.

b) United States v. Lee, 64 M.J. 213 (C.A.A.F. 2006), commenting on Warner and Article 46, CAAF held the playing field is even more uneven when the government benefits from scientific evidence and expert testimony and the defense is denied a necessary expert to prepare for and respond to the government’s expert.  Arguably, Warner and Lee can be read together to give the defense a much stronger argument for not only the need for an expert witness (especially if the government has an expert), but the need for a particular expert witness (or one comparable to the government’s expert).

c) United States v. McAllister, 64 M.J. 248 (C.A.A.F. 2007), the issue on appeal was: Whether the appellant’s right to present his defense was violated when he was prevented from employing and utilizing a necessary DNA expert at his trial?  The CAAF answered the question in the affirmative.  Had the military judge granted the defense request for a PCR expert, the members would have heard testimony about the discovery of DNA from three previously unidentified individuals.  The defense could have used this evidence to attack not only the thoroughness of the original test, but the weight that the members should have given to the government’s expert testimony.   Additionally, the CAAF believed the new evidence would have changed the evidentiary posture of the case.  At trial, the defense had nothing to contradict the character of the government’s DNA evidence which excluded all known suspects other that the appellant.  The DNA evidence, according to the CAAF, was the linchpin of the government’s case.  The additional evidence from TAI was hard evidence that someone other than the appellant, or any other known suspect, was in physical contact with the victim at or near the time of her death.  It was error for the military judge to have denied the defense request for an additional expert and retesting of the government’s sample.  The CAAF concluded that this evidence could have raised a reasonable doubt as to guilt.  As such, the CAAF held that the appellant was deprived of his constitutional right to a fair hearing as required by the Due Process Clause.   The error in denying the defense request for expert assistance was not harmless beyond a reasonable doubt.  As such, the findings of guilt with regards to the unpremeditated murder and the sentence were set aside.

2. In United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) the CAAF set out six factors that a judge should use to determine the admissibility of expert testimony.  Although Houser is a pre-Daubert case, it is consistent with Daubert, and the CAAF continues to follow it.  They are:

a) Qualified Expert.  To give expert testimony, a witness must qualify as an expert by virtue of his or her “knowledge, skill, experience, training, or education.”  See MRE 702

b) Proper Subject Matter.  Expert testimony is appropriate if it would be “helpful” to the trier of fact.  It is essential if the trier of fact could not otherwise be expected to understand the issues and rationally resolve them.  See MRE 702.

c) Proper Basis.  The expert’s opinion may be based on admissible evidence “perceived by or made known to the expert at or before the hearing” or inadmissible hearsay if it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . . .”  The expert’s opinion must have an adequate factual basis and cannot be simply a bare opinion.  See MRE 702 and 703.

d) Relevant.  Expert Testimony must be relevant.  See MRE 402.

e) Reliable.  The expert’s methodology and conclusions must be reliable.  See MRE 702.

f) Probative Value.  The probative value of the expert’s opinion, and the information comprising the basis of the opinion must not be substantially outweighed by any unfair prejudice that could result from the expert’s testimony.  See MRE 403. See also United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999) and United States v. Billings, 61 M.J. 163 (C.A.A.F. 2005).  

B. MRE 702.  The Expert’s Qualification to Form an Opinion.

1. Knowledge, Training, and Education Foundation.  Show degrees attained from educational institutions; show other specialized training in the field; show the witness is licensed to practice in the field and has done so (if applicable) for a long period of time; show teaching experience in the field; show the witness’ publications; and show membership in professional organizations, honors or prizes received, previous expert testimony.

2. Skill and Experience Foundation.  An expert due to specialized knowledge.  See United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986).

a) United States v. Banks, 36 M.J. 150 (C.M.A. 1992). Military judge erred when he refused to allow defense clinical psychologist to testify about the relevance of specific measurements for a normal prepubertal vagina, solely because the psychologist was not a medical doctor.  As the court noted, testimony from a qualified expert, not proffered as a medical doctor, would have assisted the panel in understanding the government’s evidence.

b) United States v. Harris, 46 M.J. 221 (C.A.A.F. 1997).  Military judge did not err in qualifying a highway patrolman who investigated over 1500 accidents, as an expert in accident reconstruction. 

c) United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000).  During the sentencing phase, the government called an expert on future dangerousness of the accused.  The expert said he could not diagnose the accused because he had not interviewed him nor had he reviewed his medical records.  In spite of this and objections by defense counsel, the expert did testify about pedophilia and made a strong inference that the accused was a pedophile who had little hope of rehabilitation.  The CAAF held that it was error for the judge to admit this evidence.  Citing Houser, the court noted that the expert lacked the proper foundation for this testimony, as noted by his own statements that he could not perform a diagnosis because of his lack of contact with the accused.

d) United States v. Billings, 61 M.J. 163 (C.A.A.F. 2005).  To link the appellant to a stolen (and never recovered) Cartier Tank Francaise watch, the Government called a local jeweler as an expert witness in Cartier watch identification to testify that a watch the appellant was wearing in a photograph had similar characteristics as a Tank Francaise watch.  Although the jeweler had never actually seen a Tank Francaise watch, his twenty-five years of experience and general familiarity with the characteristics of Cartier watches qualified him as a technical expert.

C. Proper Subject Matter (“Will Assist”)

1. Helpfulness.  Expert testimony is admissible if it will assist the fact finder.  There are two primary ways an expert’s testimony may assist.

a) Complex Testimony.  Experts can explain complex matters such as scientific evidence or extremely technical information that the fact finders could not understand without expert assistance.

b) Unusual Applications.  Experts can also help explain apparently ordinary evidence that may have unusual applications.  Without the expert’s assistance, the fact finders may misinterpret the evidence.  See United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998); United States v. Brown, 49 M.J. 448 (C.A.A.F. 1998).

2. United States v. Traum, 60 M.J. 226 (C.A.A.F. 2004).  To answer the question of why a parent would kill her child, the government called a forensic pediatrician, who testified to the following matters: (1) overwhelmingly, the most likely person to kill a child would be his or her biological parent; (2) the most common cause of trauma death for children under four is child maltreatment; (3) for 80% of child abuse fatalities, there are no prior instances of reported abuse; (4) Caitlyn died of non-accidental asphyxiation.  The CAAF held that there was no error in admitting “victim profile” evidence regarding the most common cause of trauma death in children under four and the fact that most child abuse deaths involve first-time abuse reports for that child.  The CAAF held that the military judge erred in admitting evidence that overwhelmingly, the most likely person to kill a child is its biological parent.  In context, however, the error was harmless because the government already had admitted the appellant’s confession.

3. United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006).  The CAAF concluded that the government does not need expert testimony in a child pornography prosecution based upon the Child Pornography Prevention Act (CPPA) to prove actual children were used to produce the images.  Court held that factfinder can make a determination as to whether actual children were used to produce the images based upon a review of the images alone, without expert testimony.  See also United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006).

D. Form of the Opinion.

1. The foundation consists of no more than determining that the witness has formed an opinion, and of what that opinion consists.

2. MRE 704.

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MRE 704. Opinion on an ultimate issue

An opinion is not objectionable just because it embraces an ultimate issue.

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a) The current standard is whether the testimony assists the trier of fact, not whether it embraces an “ultimate issue” so as to usurp the panel’s function. At the same time, ultimate-issue opinion testimony is not automatically admissible.  Opinion must be relevant and helpful as determined through MRE 401-403 and 702. 

b) In United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003), the Court held that it was improper for an expert to testify that the death of appellant’s child was a homicide and that the appellant was the perpetrator, when the cause of death and identity of the perpetrator were the primary issues at trial.

c) One recurring problem is that an expert should not opine that a certain witness’s rendition of events is believable or not.  See, e.g., United States v. Petersen, 24 M.J. 283, 284 (C.M.A. 1987) (“We are skeptical about whether any witness could be qualified to opine as to the credibility of another.”)  The expert may not become a “human lie detector.” United States v. Palmer, 33 M.J. 7, 12 (C.M.A. 1991); see also United States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007) (discussing that in a child sexual abuse case, where the government expert’s testimony suggested that there was better than a ninety-eight percent probability that the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and implicates the very concerns underlying the prohibition against human lie detector testimony.

(1) Questions such as whether the expert believes the victim was raped, or whether the victim is telling the truth when she claimed to have been raped (i.e. was the witness truthful?) are impermissible. 

(2) However, the expert may opine that a victim’s testimony or history is consistent with what the expert’s examination found, and whether the behavior at issue is typical of victims of such crimes. Focus on symptoms, not conclusions concerning veracity.  See United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998) (expert’s focus should be on whether children exhibit behavior and symptoms consistent with abuse; reversible error to allow social worker and doctor to testify that the child-victims were telling the truth and were the victims of sexual abuse). Example:  An expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms. United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990). 

E. MRE 703.  Basis For the Expert’s Testimony.

1. MRE 703 provides:

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MRE 703. Bases of an expert's opinion testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the members of a court-martial only if the military judge finds that their probative value in helping the members evaluate the opinion substantially outweighs their prejudicial effect.

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2. The language of the rule is broad enough to allow three types of bases: facts personally observed by the expert; facts posed in a hypothetical question; and hearsay reports from third parties.  United States v. Reveles, 41 M.J. 388 (C.A.A.F. 1995), expert testimony must be based on the facts of the case. 

a) Hypothetical questions (no longer required).  No need to assume facts in evidence, but, if used, must be reasonable in light of the evidence.  United States v. Breuer, 14 M.J. 723 (A.F.C.M.R. 1982). The proponent may specify historical facts for the expert to assume as true, or may have the expert assume the truth of another witness or witnesses.

b) Personal Perception.  United States v. Hammond, 17 M.J. 218 (C.M.A. 1984).  The fact that expert did not interview or counsel victim did not render expert unqualified to arrive at an opinion concerning rape trauma syndrome.  United States v. Snodgrass, 22 M.J. 866 (A.C.M.R. 1986); United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996).  Defense objected to social worker’s opinion that victim was exhibiting symptoms consistent with rape trauma accommodation syndrome and suffered from PTSD on basis that opinion was based solely on observing victim in court, reading reports of others and assuming facts as alleged by victim were true.  Objection went to weight to be given expert opinion, not admissibility.  The foundational elements include: Where and when the witness observed the fact; who was present; how the witness observed the fact; and a description of the observed fact.

c) Facts presented out-of-court (non-record facts), if “of a type reasonably relied upon by experts in the particular field” (even if inadmissible).  “The rationale in favor of admissibility of expert testimony based on hearsay is that the expert is fully capable of judging for himself what is, or is not, a reliable basis for his opinion.  This relates directly to one of the functions of the expert witness, namely to lend his special expertise to the issue before him.”  United States v. Sims, 514 F.2d 147, 149 (9th Cir. 1975), cert. denied, 423 U.S. 845 (1975).  There is a potential problem of smuggling in otherwise inadmissible evidence. 

(1) United States v. Neeley, 25 M.J. 105 (C.M.A. 1987), cert. denied, 484 U.S. 1011 (1988).  Psychiatrist’s testimony that she consulted with other psychologists in reaching her conclusion that accused had inflated results of psychiatric tests and her opinion was the consensus among these people was hearsay and inadmissible.  Military judge may conduct a 403 balancing to determine if the probative value of this foundation evidence is outweighed by unfair prejudice. 

(2) United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999). Defense was not allowed to cross-examine the government expert about contrary opinions from two colleges.  The defense did not call the two as witnesses and there was no evidence that the government expert relied on the opinions of these colleges.  The CAAF held the MJ did not err in excluding this questioning as impermissible smuggling under MRE 703.

(3) The elements of the foundation for this basis include: The source of the third party report; the facts or data in the report; if the facts are inadmissible, a showing that they are nonetheless of the type reasonably relied upon by experts in the particular field.  In United States v. Traum, 60 M.J. 226 (C.A.A.F. 2004), the CAAF emphasized that the key to evaluating the expert’s basis for her testimony is the type of evidence relied on by other experts in the field.

(4) United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010).   Over defense objection, the government’s expert testified that the accused had a moderately high risk of recidivism without having personally interviewed the accused.  The expert had reviewed the accused’s records, the charges and specifications, the stipulation of fact, chat logs, and the expert had listened to the accused’s providency inquiry.  The CAAF found that the military judge had not abused his discretion, stating that “[t]here can be no hard and fast rule as to what constitutes ‘sufficient information and knowledge about the accused’ necessary for an expert’s opinion as to an accused’s rehabilitation potential.”

(5) United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010).  Appellant was charged with sexually abusing his daughters who were seven and nine years old.  The girls testified to sexual abuse that included rape, oral and anal sex, and masturbation.  The prosecution called a forensic child interviewer as an expert witness.  On redirect, the expert witness testified that the frequency of children lying about sexual abuse was less than 1 out of 100 or 1 out of 200.  Defense counsel did not object.  The CAAF held that it was error to allow the expert testimony which impermissibly invaded the province of the panel.

F. Relevance. 

1. Expert testimony, like any other testimony must be relevant to an issue at trial.  See MRE 401, 402; Daubert, v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).

2. If the expert testimony is not relevant, it is de facto not helpful to the trier of fact.

G. Reliability.

1. The Test for Scientific Evidence.  In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court held that nothing in the Federal Rules indicates that “general acceptance” is a precondition to admission of scientific evidence.  The rules assign the task to the judge to ensure that expert testimony rests on a reliable basis and is relevant.  The judge assesses the principles and methodologies of such evidence pursuant to Rule 104(a).

a) The role of the judge as a “gatekeeper” leads to a determination of whether the evidence is based on a methodology that is “scientific,” and therefore reliable.  The judgment is made before the evidence is admitted, and entails “a preliminary assessment of whether the reasoning or methodology is scientifically valid.”   Trial court possessed with broad discretion in admitting expert testimony; rulings tested only for abuse of discretion.  General Electric Co. v. Joiner, 118 S. Ct. 512 (1997).  See also United States v. Kaspers,  47 M.J. 176 (C.A.A.F. 1997); United States v. Sanchez, 65 M.J. 145 (C.A.A.F. 2007).

b) Factors.  The Supreme Court discussed a nonexclusive list of factors to consider in admitting scientific evidence, which included the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) test as a separate consideration:

(1) whether the theory or technique can be and has been tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) whether the known or potential rate of error is acceptable;

(4) whether the theory/technique enjoys widespread  acceptance.

2. Non-Scientific Evidence.  The Supreme Court resolved whether the judge’s gatekeeping function and the Daubert factors apply to non-scientific evidence.  In Kumho Tire v. Carmichael, 119 S. Ct. 1167 (1999), the Court held that the trial judge’s gatekeeping responsibility applies to all types of expert evidence.  The Court also held that to the extent the Daubert factors apply, they can be used to evaluate the reliability of this evidence.  Finally, the Court ruled that factors other than those announced in Daubert can also be used to evaluate the reliability of non-scientific expert evidence. 

3. Other Factors.  Other factors courts have considered to evaluate the reliability of scientific and non-scientific testimony include:

a) Was the information developed for the purpose of litigation?

b) Did the expert unjustifiably extrapolate facts to support conclusions?

c) Are there alternative explanations?

d) Is the expert being as careful as they would be in their regular professional work outside paid litigation?

e) Is there a well-accepted body of learning in this area?

f) How much practical experience does the expert have and is there a close fit between the experience and the testimony?

g) Is the testimony based on objective observations and standards?

H. Probative Value

1. The probative value of the expert’s opinion and the information comprising the basis of the opinion must not be substantially outweighed any unfair prejudice that could result from the expert’s testimony. 

2. This is a standard MRE 403 balancing.

XV. HEARSAY

A. The Rule Against Hearsay. Military Rule of Evidence 802 prohibits the introduction of hearsay unless a federal statute applicable to trials by courts-martial or the Mil. R. Evid. Provide otherwise.

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MRE 801. Definitions that apply to this section; exclusions from hearsay

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements that Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s co-conspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

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B. Definitions.

1. Hearsay is an oral, written or nonverbal assertion made while not testifying at the current trial or hearing which is offered to prove the truth of what’s asserted in the statement. Pursuant to MRE 802, hearsay is inadmissible unless an exception to that general rule of prohibition applies.

2. Under MRE 801(b), the declarant is a “person” who makes a statement, not a computer, a drug detection dog, or other animal (although the data entered into a computer may be a statement of a person).  

3. Out-of-court means that at the time the person made the statement, the person was not in the courtroom, unless it satisfies the requirements of MRE 801(d).

4. Proving the Truth of the Matter Asserted:  This is the definitional prong that addresses the advocate’s need to cross-examine the declarant.  The proponent must offer the statement to prove the truth of an assertion contained in the statement.  If the statement is logically relevant to another theory, it is non-hearsay.  In other words, the value of the statement lies in the fact that it was made.  For example, an uttered statement that constitutes an element of an offense is not hearsay, but may be called an operative fact or a verbal act, e.g.:  disrespectful language; swearing, provoking language, threats, etc.  Other common non-hearsay uses include using the statement as circumstantial evidence of the declarant’s state of mind (e.g., premeditation), using the statement to show its effect on the state of mind of the hearer or reader.

C. Exemptions From Hearsay. There are several types of statements which are expressly defined under MRE 801(d) as “not hearsay,” even though they might otherwise meet the definition of hearsay in MRE 801(a). Subject to the other rules of evidence (for example, MRE 403), these non-hearsay statements are admissible to prove that what they say is true (they are “substantively” admissible):

1. Prior statements of a declarant-witness:  Both prior inconsistent and consistent statements may be non-hearsay under MRE 801(d) if the declarant testifies at the trial or hearing and is subject to cross-examination, and the out of court assertion:

a) Is inconsistent with the declarant’s trial testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or deposition (MRE 801(d)(1)(A); or

b) Is consistent with the declarant’s trial testimony and is offered either:

(1) To rebut an express or implied charge of recent fabrication, improper influence, or improper motive in testifying (MRE 801(d)(1)(B)(i); or

(2) To rehabilitate the declarant’s credibility as a witness when attacked on another ground (MRE 801(d)(1)(B)(ii). Note: the exemption under MRE 801(d)(1)(B)(ii) providing for substantive admissibility of prior consistent statements parallels an identical change to the Federal Rules of Evidence, and was implemented in 2016. See Exec. Order No. 13,730, 81 Fed. Reg. 33331, 33355 (May 20, 2016) (creating MRE 801(d)(1)(B)(ii)).

2. A prior statement of identification of a person made after perceiving the person is admissible as substantive evidence of guilt.  MRE 801(d)(1)(c). The foundation includes: The witness is on the stand subject to cross-examination; the testifying witness made a prior out-of-court identification of a person; where and when the identification occurred; and who was present.

3. An Opposing Party’s Statement.  MRE 801(d)(2). 

a) The logical underpinning of the admissions doctrine derives from the simple fact that a party cannot be heard to complain that it should have an opportunity to cross-examine itself.  There are three kinds of admissions:  personal, adoptive, and vicarious.

b) Personal admissions are statements by the party, and should not be confused with statements against interest in MRE  804(b)(3).  The latter derives its guarantee of reliability from the fact that it was against the declarant’s interest when made.  No similar rule is imposed on the admission, although for the accused there frequently will be constitutional and statutory rights that must be protected.  The proponent must show: The declarant, identified by the witness as the accused, made a statement; if rights warning necessary, the accused was warned of his or her rights and waived them; the oral or written statement was voluntary; and the statement is offered against the accused.

c) Adoptive admissions.  See, e.g., United States v. Potter, 14 M.J. 978 (N.M.C.M.R. 1982) (accused adopted another’s statement when he introduced it at his own magistrate’s hearing).  See also United States v. Datz, 61 M.J. 37 (C.A.A.F. 2005) (holding that a nod in response to equivocal and confusing compound questions was not an adoptive admission).  The doctrine requires proof that the declarant made a statement in the party’s presence; the party heard, read, or understood the statement; the party made a statement which expressed agreement with the declarant’s statement; and the statement is offered against the party.  Where a “tacit admission” is averred, that is, an adoption by silence, the critical inquiry is whether the accused was faced with self-incrimination issues (i.e., official questioning).  If not, the proponent must show the accused had the opportunity to deny the statement, that a reasonable innocent person would have denied it, and that the accused did not do so.   While this exemption can cover authorized spokespersons or agents, the most common use is the co-conspirator’s statement: the proponent must show a conspiracy existed; the declarant was part of the conspiracy at time of statement; the statement was made in furtherance of the conspiracy; and the statement was offered against the accused.

D. Common Hearsay Exceptions—Availability of the Declarant Immaterial.  As noted above, otherwise inadmissible hearsay is admissible if an exception applies.  Most exceptions fall under two broad categories:  those assessing reliability (and for which the availability of the declarant is immaterial) under Mil. R. Evid. 803; and those based on the unavailability of an important piece of evidence unless an exception to the hearsay rule applied.  The second category (under Rule 804) requires that the declarant be unavailable for the present trial, and is addressed later in this outline.  The text of Rules 803 and 804 are omitted from this outline due to their length; please refer to your current copy of the Rules.

1. Present Sense Impressions and Excited Utterances.

a) Present sense impression, unlike excited utterance, does not require the perceived event to be a startling one.  It does, however, apply only to statements made at the time the event is “perceived” or “immediately thereafter.”  The proponent must show: an event occurred; the declarant had personal knowledge of the event; the declarant made the statement soon after the event; and the statement “describes or explains” an event.

b) The excited utterance requires a showing that the event occurred; was startling; the declarant was acting under the stress of excitement cause by the event; and statement “relates” to a startling event. The time element or factor may determine whether the declarant was acting under the stress of excitement.  See United States v. Arnold, 25 M.J. 129 (C.M.A. 1987), cert. denied, 484 U.S. 1060 (1988) (12 hours until first opportunity); United States v. LeMere, 22 M.J. 61 (C.M.A. 1986) (3 year-old victim after 16  hours); United States v. Armstrong, 30 M.J. 769 (A.C.M.R. 1990) (4 to 5 days too long for an excited utterance), rev’d, 36 M.J. 311 (1993); United States v. Knox, 46 M.J. 688 (N.M. Ct. Crim. 1996). App. 1997) (one year too long).  See also United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991), aff’d, 36 M.J. 124 (C.M.A. 1992).  Spontaneous statement by crying, upset student to teacher concerning her father’s sexual molestation 18 hours earlier held admissible.  Focus is not on lapse of time since the exciting incident, but whether declarant is under stress of excitement so as to lack opportunity to reflect and to fabricate an untruthful statement.  See also United States v. Morgan, 40 M.J. 405 (C.M.A. 1994), cert. denied, 115 S. Ct. 907 (1995) (textbook example of excited utterance).  The proponent must show:  A startling or stressful event occurred; the declarant had personal knowledge of the event; the declarant made a statement about the event; and the declarant made the statement while he or she was in a state of nervous excitement.

c) United States v. Grant, 42 M.J. 340 (C.A.A.F. 1995).  Accused charged with various sexual offenses against his seven-year-old stepdaughter.  Trial counsel offered victim’s statements made to family friend 36-48 hours after one of the alleged incidents, both as excited utterance and residual hearsay.  MJ admits as excited utterance but rejects as residual hearsay.  While passage of time is not dispositive, CAAF concluded the requirements of 803(2) were not met where, as here, statements were the product of sad reflection and not made under the stress or excitement of the event.  The statement was, however, admissible under the residual exception based on its spontaneity, lack of suggestiveness, corroboration, the non-threatening home environment, and its general similarity to an excited utterance.  Case demonstrates the importance of using alternative theories for admissibility of evidence.

d) In United States v. Feltham, 58 M.J. 470 (C.A.A.F. 2003), the CAAF held that a military judge did not abuse his discretion in admitting the statements a male sailor made to his roommate approximately one hour after appellant forcibly orally sodomized him.  The military judge specifically found that the victim was still under the stress of a startling event; therefore, the lapse of time was not dispositive.

e) In United States v. Donaldson, 58 M.J. 477 (C.A.A.F. 2003), the CAAF upheld the admission as an excited utterance of a 3-year-old sexual assault victim’s statements to her mother 12 hours after the incident.  Although the girl had spent the entire day with her mother, they had always been in the company of others.  Her statement represented the first opportunity she had to be alone with and speak to a trusted adult.

f) In United States v. Bowen, 76 M.J. 83 (C.A.A.F. 2017), the Court applies the factors noted in Arnold, supra, ((1) the statement must be spontaneous; (2) the event must be startling; and (3) the declarant must be under the stress or excitement of that event).  In Bowen, the declarant was both severely intoxicated and impaired by the beating at issue in the case. Analyzing the nonverbal assertion by the victim of nodding her head when asked leading questions by an investigator, CAAF held that the military judge did not properly determine whether the declarant had sufficient mental capacity to be under the stress or excitement of the event as required by the third prong of the Arnold test. Accordingly, the head nods were not properly excited utterances under MRE 803(2), and were inadmissible.  Id. at 88 - 90. 

2. Statements for purposes of medical diagnosis or treatment.

a) Proponent must show declarant had some expectation of promoting well-being (and thus incentive to be truthful), and statement was made for purposes of medical diagnosis or treatment.  As small children typically cannot articulate that they expected some benefit from treatment, it is important that someone, like a mother or father, explain to them why they are going to the doctor, the importance of the treatment, and they need to tell what happened to feel better.  CAAF also recommends the caretakers identify themselves as such and engage in activity which could be construed as treatment by the child. United States v. Siroky, 44 M.J. 394 (C.A.A.F. 1996).

b) If statement is in response to questioning, the questioning must be of medical necessity. United States v. Haner, 49 M.J. 72 (C.A.A.F. 1998).  United States v. Armstrong, 36 M.J. 311 (C.M.A. 1993) (statement made to TC was in preparation for trial, and repetition to the psychologist several days later did not “change the character of the statements.”)  See United States v. Henry, 42 M.J. 593 (A. Ct. Crim. App. 1995). Statements made to medical personnel not made with expectation of receiving medical benefits but instead for the purpose of facilitating collection of evidence.  NOTE:  MRE 803(4) not limited to patient-declarants.  United States v. Yazzie, 59 F.3d 807 (9th Cir. 1995) (mother’s statements to docs ok).  United States v. Austin, 32 M.J. 757 (A.C.M.R. 1991) (child’s mom to social services).

c) United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006). Referral of a victim to a medical professional by trial counsel “is not a critical factor in deciding whether the medical exception applies to the statements she gave to those treating her.  The critical question is whether she had some expectation of treatment when she talked to the caregivers.”  United States v. Haner, 49 M.J. 72, 76 (1998). Under the circumstances of this case, the fact the trial counsel initiated the examination of JK by Dr. Craig is not a sufficient reason to hold that the military judge erred by concluding the medical exception applied.  The military judge’s findings that Dr. Craig saw JK for the purpose of medical diagnosis and treatment, and that JK expected to receive medical treatment when she saw Dr. Craig, support his decision to admit the statement made by JK to Dr. Craig under Rule 803(4).  As such, the military judge’s decision was not an abuse of discretion. 

3. Recorded Recollection.

a) Foundation and Procedure:  Attempt refreshing memory; establish that the memory of the witness cannot be refreshed; establish that this witness made a record when the matter was fresh in the memory of this witness; establish that the record made accurately reflects the knowledge of the witness at the time of the making; then have the witness read the recorded recollection into evidence.

b) Note:  The record could be marked as a prosecution or defense exhibit for identification, or as an appellate exhibit.  It should not be admitted unless offered by the adverse party.  Attach it to the record of trial.  It should not go to the deliberation room unless offered by the adverse party.  United States v. Gans, 32 M.J. 412 (C.M.A. 1991).  Excellent case detailing the differences between using writings to refresh memory under MRE 613 and writings used to establish past recollection recorded under MRE 803(5).

4. Records of Regularly Conducted Activities (Business Records).

a) Effective 1 January 2019, there is a foundational burden shift.  MRE 803(6)(E) now requires a challenging opponent to show that the source of information or the method or circumstance of preparation indicates a lack of trustworthiness by a preponderance of the evidence.  If the remaining foundational requirements are satisfied and there is no showing the record is untrustworthy, it is admissible subject to MRE 403.

(1) Bank Records.  Must lay the foundation specified in the MRE:  Timely recording by a regularly conducted business activity in accordance with a regular practice of recording.  When laying the business records foundation, witness familiarity with the records-keeping system must be sufficient to explain the system and establish the reliability of the documents.  Witnesses need not be those who made the actual entries or even the records custodian. United States v. Garces, 32 M.J. 345 (C.M.A. 1991) and United States v. Tebsherany, 32 M.J. 351 (C.M.A. 1991).  United States v. Brandell, 35 M.J. 369 (C.M.A. 1992).  Bank records not admissible under this provision unless a custodian or other qualified person testifies.

(2) NCIC Reports.  United States v. Littles, 35 M.J. 644 (N.M.C.M.R. 1992): NIS agent testified that he saw a National Crime Information Center (NCIC) report showing criminal activity and conviction of, the accused’s father.  The report was hearsay, and based upon the evidence presented, did not qualify for admission under MRE 803(6) or 803(8) (i.e., not shown to have been made at or near the time by a person with knowledge; the testifying agent was not the custodian of the record, nor did he show familiarity with the records-keeping system; the “rap” sheet was not a record or report of the activities of NCIC). 

(3) Lab Reports.  United States v. Schoolfield, 36 M.J. 545 (A.C.M.R. 1992), aff’d, 40 M.J. 132 (CMA 1994):  The accused alleged error in the admission of blood sample medical records (4 serology reports and a Western Blot test result) pursuant to MRE 803(6).  He argued the records were not kept in the ordinary course of business, no chain of custody was established, and that errors called into question the reliability of the records.  ACMR disagreed, finding no abuse of discretion by the military judge. The medical director of WRAMC Institute of Research was qualified to testify as to the record keeping system and maintenance of records.  Lab reports and chain of custody documents are admissible.  United States v. Vietor, 10 M.J. 69 (C.M.A. 1980); United States v. Robinson, 14 M.J. 903 (N.M.C.M.R. 1982).  Admission under the rule does not preclude the defense from calling the lab technicians to attack the report.  United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006).  Is data in a lab report a testimonial statement giving an accused the right to confront the makers of those statements pursuant to Crawford v. Washington, 541 U.S. 36 (2004)?  MAYBE.  In the context of random urinalysis screening, where the lab technicians do not equate specific samples with particular individuals or outcomes, and the sample is not tested in furtherance of a particular law enforcement investigation, the data entries of the technicians are not “testimonial” in nature.  IF, however, the lab reports were prepared at the behest of law enforcement in anticipation of a prosecution, the reports may become “testimonial.”  See United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (finding lab reports to be testimonial since law enforcement requested the report).  

(4) Computer Phone Records.  United States v. Casey, 45 M.J. 623 (N.M. Ct. Crim. App. 1996).  Computer system does not have to be foolproof, or even the best available, to produce records of adequate reliability.

(5) VHS Videotapes.  MRE 803(6) Business records.  United States v. Harris, 55 M.J. 433 (C.A.A.F. 2001).  The CAAF adopted the prevailing view of state and federal courts regarding the “silent witness” theory of admissibility vis-à-vis videotapes.  The court noted that over the last 25 years, the “silent witness” theory of authentication has developed in almost all jurisdictions to allow photographs to substantively “speak for themselves” after being authenticated by evidence that supports the reliability of the process or system that produced the photographs.  The court adopted the silent witness theory, noting that “any doubts about the general reliability of the video cassette recording technology had gone the way of the beta tape”.  The court also addressed when a witness could meet the requirements of 803(6).  They noted that in order for a witness to meet the qualification requirements of 803(6) they must be “generally familiar” with the process.  

(6) Duty Rosters. In United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016), after members had adjourned to deliberate on the merits, they forwarded questions to the military judge about documents which had been mentioned during cross-examination. During an Article 39(a) session, the military judge heard evidence from witnesses which established the foundation to admit those documents as business records. The defense cross examined government witnesses and presented a witness of its own, after which the trial judge granted the government’s motion to admit the records over defense objection. The judge denied the defense request to examine the witnesses before the members in order to attack the reliability of the records. CAAF found this to violate the constitutional rights of the accused to due process, confrontation, and presenting a defense. Id.

5. Public Records and Reports.  MRE 803(8).

a) Effective 1 January 2019, there is a foundational burden shift.  MRE 803(8)(B) now requires a challenging opponent to show that the source of information or the method or circumstance of preparation indicates a lack of trustworthiness by a preponderance of the evidence.  If the remaining foundational requirements are satisfied and there is no showing the record is untrustworthy, it is admissible subject to MRE 403.

(1) Permits introduction of evidence from public office or agency where the data and source of information are indicative of trustworthiness and set forth (a) the activities of the office; or (b) matters observed pursuant to a duty imposed by law; or (c) (against the Government) factual findings resulting from an investigation made pursuant to authority granted by law.  Presumption of regularity.  Substantial compliance with regulation is sufficient.  Irregularities material to the execution preclude admissibility.  United States v. Anderson, 12 M.J. 527 (N.M.C.M.R. 1981).  Excludes matters observed by police or personnel acting in a law enforcement capacity, if offered by the Government. Defense can admit police reports under MRE 803(8)(c).  Purely ministerial recordings of police may be admissible.  United States v. Yeoman, 22 M.J. 762 (N.M.C.M.R. 1986), aff’d, 25 M.J. 1 (C.M.A. 1987) (the reporting of a filed complaint).

(2) In United States v. Taylor, 61 M.J. 157 (C.A.A.F. 2005), the CAAF held that a military judge erred by admitting a document with undecipherable content under the public records exception; the custodian could not explain the origin or meaning of the undecipherable content.  The CAAF further held that any underlying documents used to create a public record must satisfy a hearsay exception to satisfy MRE 805.

(3) United States v. Rankin, 64 M.J. 243 (C.A.A.F. 2007).  Are service record entries documenting an accused’s period of unauthorized absence “testimonial” for purposes of the Confrontation Clause?  No.  Service records documenting absence are not prepared by law enforcement or any prosecutorial agency, rather, they are routine personnel documents that chronicle the relevant dates, times, and locations of the accused.  Additionally, at the time the documents are created, an objective witness would not reasonably believe the statement would be available for use at a later trial.  But see Whorton v. Bockting, 127 S. Ct. 1173 (2007) (changing the analysis of non-testimonial statements under the Confrontation Clause, “Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability.  Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.”)

6. Contents of Learned Treatises.

a) Main requirement for using the exception, whether on direct or cross-examination, is the establishment of the treatise, periodical, or pamphlet as reliable authority.  See generally David F. Binder, Hearsay Handbook, ch. 7 §19.01 at 337 (3d ed. 1991).  The proponent of the evidence accomplishes this task either by obtaining an admission from an expert witness concerning the reliability or authority of the statement.  The provision concerning calling the treatise to the attention of the expert in cross-examination, or having the expert rely upon the treatise on direct examination “is designed to ensure that the materials are used only under the sponsorship of an expert who can assist the fact finder and explain how to apply the materials.”  2 C. McCormick, McCormick on Evidence ch. 34, §321 at 352 (4th ed. 1992).  Another method is through judicial notice.  “Given the requirements for judicial notice, MRE 201, and the nature and importance of the item to be authenticated, the likelihood of judicial notice being taken that a particular published authority other than the most commonly used treatises is reliable is not great.”  Michael H. Graham, Federal Practice and Procedure-Evidence §6769 at 714, note 4 (1992). 

b) As is the case with the hearsay exception for recorded recollections, MRE 803(18) provides that statements from the learned treatise are read into evidence; the learned treatise itself does not become an exhibit.

7. Residual Hearsay Rule—The “Catchall”.  The residual hearsay rule formerly appeared under MRE 803(24) and 804(b)(5), but has been transferred to MRE 807.

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MRE 807. Residual exception.

(a)  In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in MRE  803 or 804:

(1)  the statement has equivalent circumstantial guarantees of trustworthiness;

(2)  it is offered as evidence of a material fact;

(3)  it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4)  admitting it will best serve the purposes of these rules and the interests of justice.

(b)  Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

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a) The proponent must demonstrate “equivalent circumstantial guarantees of trustworthiness”;

b) Inherent Reliability.  Idaho v. Wright, 497 U.S. 805 (1990) (admissibility of child’s statement to doctor regarding abuse pursuant to residual hearsay rule requires a showing of indicia of reliability at the time statement made, not through corroborating evidence.)  

c) United States v. Morgan, 40 M.J. 405 (C.M.A. 1994), cert. denied, 115 S. Ct. 907 (1995):  Military judge properly admitted sworn statement of rape complainant under residual exception.  The statement was made near to the time of the attack and was consistent with earlier excited utterances.  

d) Establish the evidence is offered to prove a material fact in issue;

e) Show evidence offered is more probative of the point than any other evidence reasonably available;

(1) All the prerequisites for use must be met, including the requirement that it be more probative than any other evidence on the point for which it is offered.  United States v. Pablo, 50 M.J. 658 (A. Ct. Crim. App. 1999), testimony of school counselor inadmissible hearsay because victim testified on the same issues and counselor’s testimony did not shed any new light on the issue. 

(2) United States v. Czachorowski, 66 M.J. 432 (A. Ct. Crim. App. 2008).  The military judge ruled that the alleged child-victim was unavailable based on the trial counsel’s proffer that the child had forgotten the alleged instances of abuse.  The military judge admitted the child’s statements of the alleged incident to both the mother and the grandparents as residual hearsay.   The CAAF found that the government failed to meet its burden that it could not obtain more probative evidence despite “reasonable efforts.”   The government offered nothing to corroborate its assertions that the child had forgotten the alleged incident, and the military judge relied solely on government’s assertions without seeking any corroboration before declaring the child unavailable.  Because the residual hearsay exception should be rarely used, “Absent personal observation or a hearing, there must be some specific evidence of reasonable efforts to obtain other probative evidence.” 

f) Demonstrate that admission of the evidence fosters fairness in the administration of justice; and

g) Provide notice of intended use. 

(1) United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003).  During the sentencing phase of appellant’s court-martial for writing bad checks, the military judge admitted a letter from one of the victims to show victim impact and the full circumstances of the offenses.  The letter was not admitted for the truth of the matters asserted therein. On appeal, the AFCCA held that the contents of the letter were admissible as residual hearsay under MRE 807.  The CAAF reversed, holding that the AFCCA failed to apply the notice and foundational requirements of MRE 807.  In order to admit evidence under MRE 807, the appellant must be afforded sufficient notice in advance of the trial or hearing to prepare to meet the evidence; this requirement applies equally to trial and appellate proceedings.  

(2) United States v. Czachorowski, 66 M.J. 432 (A. Ct. Crim. App. 2008).  The CAAF took a flexible approach and found that the advance notice requirement applies to the statements and not the means that the proponent intended to use to seek admission of the statements.  While the trial counsel gave no formal notice, the defense counsel knew about the statements and the trial counsel’s intent to offer the statements.  Notice was satisfied.

h) Harmless Error Test.  In United States v. Lovett, 59 M.J. 230 (C.A.A.F. 2004), the appellant was convicted of raping his 5-year-old daughter.  The daughter testified at trial.  The Government also introduced several hearsay statements of the victim through written statements by her mother and the testimony of a family friend.  The CAAF refused to rule as to whether admission of these items was error, holding instead that any errors in admitting the evidence were harmless because the statements were cumulative to and consistent with the victim’s in-court testimony, and some of the statements were contained in another Government exhibit that was entered into evidence without defense objection.

E. MRE 804.  Common Hearsay Exceptions - Unavailability.

1. 804(a)(1):  Claim of privilege (which cannot be remedied by grant of testimonial immunity).  United States v. Robinson, 16 M.J. 756 (A.C.M.R. 1983).

2. 804(a)(4):  Death, Physical Inability, Mental Incapacity, or Intimidation.  United States v. Arruza, 26 M.J. 234 (C.M.A. 1988), cert. denied, 489 U.S. 1011 (1989) (child intimidated); United States v. Ferdinand, 29 M.J. 164 (C.M.A. 1989), cert. denied, 493 U.S. 1044 (1990) (A child victim may become unavailable if testifying would be too traumatic).   But see United States v. Harjak, 33 M.J. 577 (N.M.C.M.R. 1991) (notwithstanding judge’s empathetic concerns for child, unauthenticated medical reports detailing victim’s physical and psychological condition to demonstrate unavailability irrelevant as reports did not discuss her current condition).

3. 804(a)(5): Absence.  Inability to locate or procure attendance or testimony through good faith, major efforts:  United States v. Hampton, 33 M.J. 21 (C.M.A. 1991).  The victim refused to return for the trial and the military judge had no means to compel the victim’s attendance.  She properly was determined to be unavailable under MRE 804(a)(5).  Under these circumstances, the pretrial deposition was admissible.

4. United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006).  Military judge erred when he determined a child-witness was unavailable within the meaning of MRE 804(a).  Even though a child-witness may not provide any “helpful” information, this is not a valid basis for a finding of unavailability.  The Confrontation Clause guarantees only an opportunity for effective cross-examination, not necessarily effective cross-examination.

F. MRE 804(b).  Former Testimony.

1. The foundational requirements are:  The first hearing was a fair one; the witness testified under oath at the first hearing; the opponent was a party in the first hearing; the opponent had an opportunity to develop the witness’ testimony; the opponent had a motive to develop the witness’ testimony at the first hearing; the witness is unavailable; and there is a verbatim transcript of the first hearing.

2. Despite wording of MRE 804(b)(1), admissibility of Article 32 testimony under former testimony exception depends on opponent’s opportunity to cross-exam, not whether cross-examination actually occurred or the intent of the cross-examiner.  United States v. Connor, 27 M.J. 378 (C.M.A. 1989); United States v. Hubbard, 28 M.J. 27 (C.M.A. 1989), cert. denied, 493 U.S. 847 (1989).  United States v. Austin, 35 M.J. 271 (C.M.A. 1992):  UCMJ art. 32 testimony was admitted under MRE 801(d)(1)(A) and 804(b)(1).  After the testimony was read to the members, they were permitted to take it into deliberations, over defense objection.  Analogizing to a deposition, which is not taken into deliberations (See RCM 702(a) discussion), COMA concluded the verbatim Article 32 testimony was not an “exhibit” within the meaning of RCM 921(b).  See also United States v. Montgomery, CM 9201238, (A.C.M.R. 28 July 1994) (per curiam) (unpub.), the A.C.M.R. applied a similar analysis to a verbatim transcript of a prior trial.  

G. MRE  804(b)(3).  Statement Against Pecuniary, Proprietary, or Penal Interests.

1. The foundational requirements include:  The declarant is unavailable; the declarant previously made a statement; the declarant subjectively believed that the statement was contrary to his or her interest; the interest was of a recognized type; and if the defense offers a statement which tends to expose the declarant to criminal liability, to exculpate the accused, there must be corroboration to show the statement is trustworthy.  United States v. Perner, 14 M.J. 181 (C.M.A. 1982).

H. MRE 804(b)(6).  Forfeiture by wrongdoing.

1. Giles v. California, 128 S. Ct. 2678 (2008) (holding that before finding that a defendant forfeited his right to confrontation by his wrongdoing, the government must prove that the defendant intended to prevent a witness from testifying.)  

2. United States v. Marchesano, 67 M.J. 535 (A. Ct. App. 2008) (adopting a four- part test for determining whether a party “acquiesced in the wrongdoing.”   (1) Whether “the witness was unavailable through the actions of another;” (2) whether “the act of another was wrongful in procuring the unavailability of the witness;”  (3) whether “the accused expressly or tacitly accepted the wrongful actions of another;”  and (4) whether “the accused did so with the intent that the witness be unavailable.”

I. MRE 805 and 806.  Hearsay within Hearsay; Attacking and Supporting Credibility of Declarant.

1. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule.  United States v. Littles, 35 M.J. 644 (N.M.C.M.R. 1992).

2. When a hearsay statement, or a statement defined in rule 801(d)(2)(c), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.

XVI. MISCELLANEOUS RULES

A. MRE 1101.  Applicability of Rules.

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MRE 1101. Applicability of these rules

(a)  In General. Except as otherwise provided in this Manual, these rules apply generally to all courts-martial, including summary courts-martial, Article 39(a) sessions, limited fact-finding proceedings ordered on review, proceedings in revision, and contempt proceedings other than contempt proceedings in which the judge may act summarily.

(b)  Rules Relaxed. The application of these rules may be relaxed in presentencing proceedings as provided under R.C.M. 1001 and otherwise as provided in this Manual.

(c)  Rules on Privilege. The rules on privilege apply at all stages of a case or proceeding.

(d)  Exceptions. These rules - except for Mil. R. Evid. 412 and those on privilege - do not apply to the following:

(1)  the military judge's determination, under MRE  104(a), on a preliminary question of fact governing admissibility;

(2)  pretrial investigations under Article 32;

(3)  proceedings for vacation of suspension of sentence under Article 72; and

(4)  miscellaneous actions and proceedings related to search authorizations, pretrial restraint, pretrial confinement, or other proceedings authorized under the Uniform Code of Military Justice or this Manual that are not listed in subdivision (a).

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1. The Military Rules of Evidence apply generally to all courts-martial, including summary courts-martial; to proceedings pursuant to Article 39(a); to limited fact-finding proceedings ordered on review; to proceedings in revision; and to contempt proceedings except those in which the judge may act summarily.

2. The application of the rules may be relaxed in sentencing proceedings.

3. The Military Rules do not apply (except for MREs 412 and the rules governing privilege) in investigative hearings pursuant to Article 32; proceedings for vacation of suspension of sentence pursuant to Article 72; proceedings for search authorizations; proceedings involving pretrial restraint; and in other proceedings authorized under the Uniform Code of Military Justice or the MCM and not listed in rule 1101(a).

B. MRE 1102.  Amendments and exceptions.

1. The Rule provides that “Amendments to the Federal Rules of Evidence—other than Articles III and V—will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.”

2. MRE 1102 also reflects the judgment of the President that Federal Rules of Evidence 301, 302, 415, and 902(12) do not apply in military proceedings.