CORE CRIMINAL LAW SUBJECTS: Evidence: Other Acts


2010 ( September Term)

United States v. Sullivan, 70 M.J. 110 (evidence that the victim had attempted to mutilate herself and had suicidal ideations was not relevant to show that she fabricated sexual assault allegations against the accused because she feared hospitalization if her mother believed she had again sought to injure herself; there was no evidence that the victim contemplated the possibility of hospitalization or that victim’s mother would consider hospitalization in the case of a future cutting incident, and the victim’s injuries were not similar to those associated with her prior self-mutilation).

(the mere fact of prior psychological counseling does not create a sufficient nexus to the case to inquire into a victim’s medical history; a direct nexus is needed). 

(evidence regarding the victim’s past use of medication was not relevant to show why the accused told bystanders that the victim had missed her medication as an explanation for her behavior on the day of alleged sexual assault, absent some showing that such prior medication would affect the victim's ability to perceive events or tell the truth at a later time).

(evidence of a witness’s psychological state is properly excluded if it did not affect her ability to perceive and tell the truth; conversely, it should be admitted if it relates to the witness’s ability to perceive events and testify accurately). 

2008 ( September Term)

United States v. Burton, 67 M.J. 150 (the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper).  


United States v. Goodin, 67 M.J. 158 (MRE 404(b) excludes evidence of other crimes, wrongs, or acts offered solely to prove the character of a person in order to show action in conformity therewith; such evidence may still be introduced under MRE 404(b) if it is offered for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). 


2007

United States v. Harrow, 65 M.J. 190 (the correct test for the admissibility of uncharged misconduct under MRE 404(b) is:  first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice).


2006


United States v. James, 63 M.J. 217 (prior to 1996, the admissibility of evidence of uncharged misconduct in the military justice system was severely restricted by MRE 404(b); this rule allowed evidence of bad acts to be admitted for limited purposes, but the basic evidentiary rule excluded bad acts solely to show bad character and a propensity to act in conformance with that bad character; in 1996, the rule against the admissibility of bad acts to prove a propensity to commit similar acts was turned upside down in cases involving violent sexual behavior or sexual offenses involving minors; Congress, as a part of the Violent Crime Control and Enforcement Act of 1994, enacted Fed. R. Evid. 413 and Fed. R. Evid. 414, rules that became applicable to military practice in 1996, and were formally adopted as MRE 413 and MRE 414 in a 1998 amendment to the MCM; these rules stated that in cases of sexual assault or sexual misconduct with a child, evidence of the commission of similar offenses, was admissible and may be considered for its bearing on any matter to which it is relevant; no exceptions were listed in the rules). 

 

(in interpreting MRE 404(b), CAAF has joined the prevailing federal practice, which does not limit “other” in acts under Fed. R. Evid. 404(b) to “prior” acts; it now continues down that road and concludes that the “one or more offenses” language of MRE 413 and MRE 414 is no more temporally restrictive than the “other crimes” language of MRE 404(b)).

 

United States v. Washington, 63 M.J. 418 (although the members found appellant not guilty of carnal knowledge with his daughter on divers occasions before the date of the offense of carnal knowledge with his daughter for which he was convicted, the lower court did not err in relying on the evidence regarding those earlier divers acts in upholding the factual and legal sufficiency of his conviction where the members could reasonably have found by a preponderance of the evidence that the prior acts occurred, the evidence that appellant may have earlier engaged in nearly identical acts was relevant to whether he engaged in similar conduct on the later date, and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice).

 

(the admissibility of other acts evidence is governed by the Military Rules of Evidence, and not by the members’ verdict; a finding of not guilty is not a finding of fact, but a determination that the government has not proved all the elements of the charged offense beyond a reasonable doubt). 

 

(with respect to other acts evidence involving child molestation and sexual assault, MRE 413 and MRE 414 are intended to provide for more liberal admissibility of character evidence in criminal cases).

 

(before a court-martial may submit evidence of prior charged or uncharged acts to the members, it must examine the evidence in the case and decide whether the members could reasonably find the conditional fact by a preponderance of the evidence; the three-prong test of United States v. Reynolds, 29 MJ 105 (CMA 1989), for the admissibility of uncharged misconduct can apply to evidence of charged misconduct; the test contains the following elements: (1) Does the evidence reasonably support a finding by the court members that the appellant committed prior crimes, wrongs or acts?; (2) What fact of consequence is made more or less probable by the existence of this evidence?; (3) Is the probative value substantially outweighed by the danger of unfair prejudice?). 

 

United States v. Tanner, 63 M.J. 445 (under MRE 404(b), evidence of uncharged misconduct is expressly inadmissible as a general matter to show propensity to commit the charged crime, but it may be admissible for other purposes). 

 

(MRE 404(b) does not provide a basis for admission of evidence during sentencing that is not otherwise admissible under RCM 1001(b)(4)).

 

(MRE 414, which addresses the admissibility of evidence of similar crimes in child molestation cases, establishes a presumption in favor of admissibility of evidence of prior similar crimes in order to show predisposition to commit the designated crimes; as such, MRE 414 stands in sharp contrast to MRE 404(b), which bars uncharged misconduct as evidence of predisposition).

 

(the structure of MRE 404(b) permits admission of evidence of other crimes, wrongs, or acts only upon a showing by the proponent of a specifically relevant purpose to be served under the circumstances of the particular case). 

 

(MRE 414 does not contain a prohibition against predisposition evidence; instead, in a court-martial for child molestation, MRE 414 provides a vehicle for the admissibility of other acts of child molestation committed by the accused; the rule reflects a presumption that other acts of child molestation constitute relevant evidence of predisposition to commit the charged offense; as such, in a child molestation case, evidence of a prior act of child molestation directly relates to the offense of which the accused has been found guilty and is therefore relevant during sentencing under RCM 1001(b)(4)). 

 

(evidence under MRE 414 is subject to a balancing test pursuant to MRE 403, under which relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members). 

 

2004

 

United States v. McDonald, 59 MJ 426 (this Court relies upon the following three-part test in United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989) to determine the admissibility of “other acts” evidence under MRE 404(b): (1) Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts?; (2) What fact of consequence is made more or less probable by the existence of this evidence?; and (3) Is the probative value substantially outweighed by the danger of unfair prejudice?).

 

(the first and second prongs of the Reynolds test address the logical relevance of the evidence; the third prong ensures that the evidence is legally, as well as logically, relevant; the moving party must satisfy all three prongs for the evidence to be admissible).

 

(MRE 404(b) evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor; the threshold inquiry a court must make before admitting similar acts evidence under MRE 404(b) is whether that evidence is probative of a material issue other than character, such as plan or intent; finally, a court must determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice).

 

(applying the second prong of Reynolds, we hold that evidence of appellant’s uncharged acts was not logically relevant to show either a common plan or appellant’s intent; the common plan analysis considers whether the uncharged acts in question establish a plan of which the charged act is an additional manifestation, or whether the acts merely share some common elements; the question as applied to the facts of this case, is whether the uncharged acts evidence shows that appellant had a plan to commit indecent acts that manifested itself on two occasions: first, when appellant was 13 years old with his stepsister, and second, 20 years later, with his adopted daughter; in answering such a question, we have examined the following factors: the relationship between victims and the appellant; ages of the victims; nature of the acts; situs of the acts; circumstances of the acts; and time span; viewing the facts of this case under that framework, we conclude that the military judge abused his discretion in admitting the uncharged acts to establish a common plan; indeed, the uncharged acts in this case are extremely dissimilar to the charged offenses: 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 intent analysis considers whether appellant’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; in this case, 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 military judge’s determination of relevance on the issue of intent was fanciful and clearly unreasonable).

 

2003

United States v. Diaz, 59 MJ 79 (this Court applies a three-pronged test for determining admissibility of other-acts evidence under M.R.E. 404(b): (1) whether the evidence reasonably supports a finding by the court members that the accused committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) whether the probative value is substantially outweighed by the danger of unfair prejudice; if the evidence fails any of the three tests, it is inadmissible).

2002

United States v. Tyndale, 56 MJ 209 (evidence of prior drug use is not inadmissible per se at a court-martial; Mil.R.Evid 404(b) permits evidence of other crimes, wrongs, or acts to prove facts other than a person’s character, such as intent, knowledge, absence of mistake or accident, motive, opportunity, or knowledge).

(the test for admissibility of other acts evidence under Mil.R.Evid. 404(b) is whether the evidence is offered for some purpose other than to demonstrate the accused’s predisposition to crime; the rule is one of inclusion).

(evidence offered under Mil.R.Evid. 404(b) must meet three criteria for admissibility: (1) the evidence must reasonably support a finding by the court members that appellant committed the prior crimes, wrongs, or acts; (2) the evidence must make a fact of consequence more or less probable; and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice).

United States v. Simpson, 56 MJ 462 (similar offenses occurring earlier in time may be used as “other crimes, wrongs, or acts” for the limited purpose of demonstrating appellant’s tendency to take advantage sexually of women who were intoxicated or under the influence of alcohol).

United States v. Humpherys, 57 MJ 83 (Mil.R.Evid. 404(b) is a rule of inclusion, not exclusion; the sole test under Mil.R.Evid. 404(b) is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime).

(In addition to having a proper purpose under Mil.R.Evid. 404(b), proffered evidence must meet the standards of Mil.R.Evid. 104(b), 402, and 403).

(There is a three-pronged test for determining admissibility of other-acts evidence under Mil.R.Evid. 404(b), failure of the evidence under any one of which renders the evidence inadmissible:  (1) whether the evidence reasonably supports a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) whether the probative value is substantially outweighed by the danger of unfair prejudice).

(Under the three-pronged analysis for determining admissibility of other-acts evidence under Mil.R.Evid. 404(b), the military judge did not abuse his discretion by admitting the challenged testimony concerning statements made to other female soldiers where:  (1) there was more than sufficient evidence for the members to conclude that appellant made the statements in issue; (2) the evidence was relevant to a probable defense that the statement was made for an official purpose as well as being relevant to appellant’s intent in making the charged remark, a fact in issue and of consequence; and (3) the danger of unfair prejudice to appellant's interests did not substantially outweigh the probative value of the extrinsic-acts evidence in proving intent).

(extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct).

(extrinsic evidence of prior acts of misconduct is not admissible to rebut opinion evidence of good military character).

2001

United States v. Young, 55 MJ 193 (the test for admissibility of evidence of uncharged crimes is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime).

(there is a three-part test for admissibility of evidence of other crimes, wrongs, or acts: (1) the evidence must reasonably support a finding that the accused committed the crime, wrong, or act; (2) the evidence must make a fact of consequence more or less probable; and (3) its probative value must not be substantially outweighed by the danger of unfair prejudice).

(the three-part test for admissibility of evidence of other crimes, wrongs, or acts applies to subsequent acts).

(military judge did not abuse his discretion by admitting evidence of a drug conversation involving appellant weeks after the charged drug conspiracy; the subsequent conversation revealed the subject matter and context of a conversation in which appellant admitted the charged conspiracy).

2000

United States v. Phillips, 52 MJ 268 (there is a three-part test to determine the admissibility of evidence of “other crimes, wrongs, or acts”:  (1) the evidence must reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts; (2) the evidence must make a fact of consequence more or less probable; and, (3) the probative value must not be substantially outweighed by the danger of unfair prejudice).

United States v. Smith, 52 MJ 337 (upon objection, the proponent of other acts evidence should be required to identify the specific purpose or purposes for which evidence of other crimes, wrongs, or acts is being offered).

(in determining the admissibility of MRE 404(b) evidence, circumstantial evidence that appellant may have wrongfully appropriated money entrusted to him was sufficient for the fact-finder to reasonably find that the accused committed the “other act” of temporarily appropriating money for his own purposes).

(proffered MRE 404(b) evidence that appellant may have wrongfully appropriated money entrusted to him was relevant to a fact of consequence in larceny case; specifically, that appellant had financial difficulties and the degree of financial pressure that was applied to appellant on the actual day of the charged theft were probative of a motive on his part to commit larceny).

(the probative value of evidence that appellant may have wrongfully appropriated money entrusted to him was not substantially outweighed by the danger of unfair prejudice where:  (1) military judge ruled and instructed that the evidence could be used only for its tendency, if any, to prove the accused’s motive for alleged theft; (2) the evidence had great probative value because it revealed the true extent of the accused’s financial desperation on the day of the alleged theft; and, (3) the military judge instructed that the evidence could not be used as propensity evidence).

United States v. Taylor, No. 98-1140, 53 MJ 195 (evidence of other crimes, acts, or wrongs must be offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is guilty because he is predisposed to commit similar offenses; such evidence may be admitted if it:  (1) reasonably supports a finding that the accused committed the crime, wrong, or act; (2) makes a fact of consequence more or less probable; and (3) possesses probative value that is not substantially outweighed by the danger of unfair prejudice).

(accused’s pretrial statement contained references to minor criminal conduct, brandishing a knife at his roommate, arming himself with a knife in response to a disagreement, and firing a weapon at a person before he joined the Marine Corps; military judge did not abuse his discretion by not redacting this other acts evidence from accused’s pretrial statement where: blanking out an entire paragraph might invite the members to speculate and infer something adverse to the accused; the military judge provided cautionary instructions; appellant offered nothing to show that the use of the disputed evidence was not limited by effective instructions; and the members may be presumed to have followed the limiting instructions).

United States v. Wright, No. 99-0318, 53 MJ 476 (MRE 413, “Evidence of similar crimes in sexual assault cases”, creates an exception to MRE 404(b)’s general prohibition against the use of a defendant’s propensity to commit crimes and is subject to the balancing test of MRE 403).

(before admitting evidence under MRE 413, “Evidence of similar crimes in sexual assault cases”, three threshold findings are required:  (1) the accused is charged with an offense of a sexual nature; (2) the evidence proffered is evidence of the defendant’s commission of another offense of sexual assault; and (3) the evidence is relevant under MREs 401 and 402).

(before admitting evidence under MRE 413, “Evidence of similar crimes in sexual assault cases”, the military judge must apply a balancing test under MRE 403 and consider the following non-exclusive factors:  (1) strength of proof of prior acts; (2) probative weight of evidence; (3) potential for less prejudicial evidence; (4) distraction of factfinder; (5) time needed for proof of prior conduct; (6) temporal proximity; (7) frequency of the acts; (8) presence or lack of intervening circumstances; and (9) the relationship between the parties).

(in addition to a requirement to balance under MRE 403, MRE 413, “Evidence of similar crimes in sexual assault cases”, also protects:  (1) by limiting the uncharged misconduct to serious offenses; (2) by requiring the evidence to meet the relevancy requirements of MREs 401 and 402 and enforced through MRE 104(b); (3) by requiring the military judge to conclude by a preponderance of the evidence that the offenses occurred; and (4) by the notice requirement in MRE 413(b) which ensures that the admission of evidence does not threaten the presumption of innocence).

(in a “judgment of the Court”, MRE 413, “Evidence of similar crimes in sexual assault cases”, was found to be constitutional in the face of appellant’s claim that the rule violated the Due Process and Equal Protection Clauses of the Constitution).

United States v. Matthews, No. 99-0487, 53 MJ 465 (other acts evidence offered under MRE 404(b) must satisfy three tests to be admissible:  (1) the evidence must reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts; (2) the evidence must make a fact of consequence more or less probable; and (3) the evidence must satisfy the balancing required by MRE 403).

United States v. Henley, No. 99-0094, 53 MJ 488 (where victims of long-term sexual abuse as children testified about uncharged sexual abuse outside the statute of limitations, testimony regarding this uncharged sexual abuse was admissible as other crimes, wrongs or acts evidence under MRE 404(b)).

United States v. Browning, 54 MJ 1 (MRE 404(b) is a rule of inclusion rather than exclusion; it permits admission of relevant evidence of other crimes or acts unless the evidence tends to prove only criminal disposition).

(there is a three-pronged test for admissibility of other acts evidence:  (1) such evidence must reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts; (2) such evidence must make a fact of consequence more or less probable; and (3) the probative value must not be substantially outweighed by the danger of unfair prejudice).

(the standard of proof for the first prong of the test for admissibility of other acts evidence is quite low and is satisfied by evidence upon which the trier of fact could reasonably conclude that the accused committed the act sought to be introduced; this prong was satisfied where co-actor testified that the events did take place and that they were in furtherance of the conspiracy).

(admissibility of evidence of other acts, crimes or wrongs committed by appellant’s co-conspirators is not evaluated under MRE 404(b), but instead is evaluated under MREs 401, 402, and 403).

United States v. Baumann, 54 MJ 100 (MRE 404(b) is viewed as a rule of inclusion, not exclusion, thus evidence of uncharged misconduct of an accused may be offered to show a motive for some action by a person other than an accused).

United States v. Tanksley, 54 MJ 169 (Mil. R. Evid. 404(b) is a rule of inclusion; the nub of the matter is whether the evidence is offered for a purpose other than to show an accused’s predisposition to commit an offense).

(testimony from appellant’s older daughter that he had sexually molested her years earlier was admissible against appellant on charge of sexually molesting a different daughter where the evidence met the three-prongs for admissibility of Mil. R. Evid. 404(b) evidence:  (1) the testimony of the older daughter reasonably supported a finding by the court members that appellant has sexually abused the older daughter; (2) the evidence made the existence of appellant’s malevolent intent in bathing with the second daughter more probable; and (3), as the evidence was properly before the members on another charge and because the trial judge’s instructions precluded any improper use of the evidence, there was no danger of unfair prejudice).

1999

United States v. Griggs, 51 MJ 418 (the fact of an acquittal does not necessarily bar evidence of prior acts where those prior acts are relevant and probative).

(at a trial for indecent exposure, military judge did not abuse his discretion by admitting evidence of prior uncharged acts of indecent exposure and masturbation as evidence of intent and absence of mistake under MRE 404(b), where:  (1) there was sufficient evidence that the prior acts occurred; (2) the appropriate MRE 403 balancing test was applied; and (3) due sensitivity was exercised toward the fact that the prior acts had been subject to an acquittal).

United States v. Morrison, 52 MJ 117 (evidence of other acts of misconduct may not be introduced solely to show that an accused has a propensity to commit crimes of the type charged).

(to be admissible under MRE 404(b), evidence of other acts of misconduct must meet a three-part test:  (1) the evidence must reasonably support a finding by the court members that the accused committed the other act – preponderance of the evidence is the standard; (2) the evidence must make a fact of consequence more or less probable; and, (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under MRE 403).

(to be admissible to show a plan or scheme, other acts of misconduct must be almost identical to the charged acts; where offered to show modus operandi, there must be a high degree of similarity between the extrinsic evidence and the charged act, so much so that it is like a “signature” marking the charged offense as the product of the accused).

(military judge abused his discretion admitting evidence of other acts of misconduct in the form of testimony by the accused’s natural daughter about a prolonged period of sexual abuse at the hands of the accused, where the uncharged acts were not sufficiently similar to the charged acts to show plan, scheme, or modus operandi because:  (1) aside from youth, there was no common relationship between the victims and appellant; (2) the ages of the victims varied over a broad range; (3) the nature of the acts was different in type and character; (4) the acts were in different types of places; (5) there was no common theme among the circumstances of the acts; and, (6) the time gap between the acts lessened the probative value to show a plan or scheme).

(although uncharged acts had some tendency to show motive and intent, where these issues were not contested and nature of the charged acts was so overtly sexual that motive and intent were not in issue, the probative value of the uncharged acts on motive and intent was minimal).

(while uncharged acts may have had sufficient probative value to satisfy requirement that such evidence make a fact of consequence more or less probable, the prejudicial effect outweighed probative value where:  (1) the uncharged acts were far more serious than the charged acts; (2) the uncharged acts were committed with appellant’s natural daughter as opposed to distant relationship and no relationship to the victims of the charged offense; and, (3) uncharged acts constituted a long-term, incestuous relationship involving sexual acts well beyond the duration and nature of the charged acts).


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