CORE CRIMINAL LAW SUBJECTS: Evidence: Plan or Design

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. Whitner
, 51 MJ 457 (homosexual tapes and materials depicting sexual abuse of the superior-subordinate relationship in the military environment or coercive sexual conduct in a military-type environment rationally supported a ruling admitting such evidence to show a plan or method to secure homosexual sex from unsuspecting servicemembers).

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