CORE CRIMINAL LAW SUBJECTS: Evidence: Relevance

2013 (September Term)

United States v. Flesher, 73 M.J. 303 (testimony on the counterintuitive behaviors of rape victims is relevant). 

2012 (September Term)

United States v. Solomon, 72 M.J. 176 (MRE 403 provides that although 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; in the MRE 413 context, the Rule 403 balancing test should be applied in light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible; accordingly, in conducting the balancing test, the military judge should consider the following non-exhaustive factors to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice:  strength of proof of the prior act (i.e., conviction versus gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and the relationship between the parties; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion).   

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (relevant evidence is any evidence that has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence). 

United States v. Gaddis, 70 M.J. 248 (the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process). 

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).

United States v. Pope, 69 M.J. 328 (relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice or misleading the members). 


United States v. Staton, 69 M.J. 228 (it is well established that witness intimidation is relevant evidence to demonstrate consciousness of guilt). 


United States v. White, 69 M.J. 236 (defendants do not have a constitutional right to present any and all evidence, but only that evidence which is logically and legally relevant).

 

(at a court-martial, an accused is entitled to present relevant evidence that is not otherwise inadmissible). 

 

(MRE 401 provides that relevant evidence means 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; relevant evidence is admissible; evidence that is not relevant is not admissible; the relevance standard is a low threshold). 

 

(in a prosecution for signing a false official document relating to the accused’s response about her criminal history on an AF Form 1540, Application for Clinical Privileges/Medical Staff Appointment, the military judge did not abuse his discretion in excluding Army credentialing forms previously completed by the accused as irrelevant; the excluded forms were different in format and content from the AF Form 1540, they did not contain any questions concerning an applicant’s criminal history, were completed by the accused four to ten years prior to her completing the AF Form 1540, and contained no information that would make the existence of the accused’s intent to deceive more or less probable). 


2009 (September Term)


United States v. Diaz, 69 M.J. 127 (proof of appellant’s motive is irrelevant the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information on this issue; although motive evidence may be relevant where it is circumstantial evidence of intent, in this case, appellant’s motive was unrelated to his intent; any noble motives appellant might have harbored when he released classified information about detainees at Guantanamo bay naval base, including what he may have thought was in compliance with a Supreme Court ruling, were irrelevant to his intentional act of physically mailing the names of detainees and coding information related to these names in violation of the Espionage Act). 

 

(evidence of appellant’s ethical duties as a judge advocate and attorney was relevant in a prosecution for conduct unbecoming an officer to show that he had an honorable motive when he released classified documents about detainees at the Guantanamo naval base; a determination as to whether conduct charged under Article 133, UCMJ, is unbecoming of an officer and gentleman includes taking all the circumstances into consideration; such circumstances incorporate the concept of honor; appellant’s view of what those circumstances entailed, and what was “honorable,” was therefore relevant to his charge of conduct unbecoming an officer for releasing classified documents; in short, evidence of an honorable motive may inform a factfinder’s judgment as to whether conduct is unbecoming an officer; this is possible even where the conduct itself amounts to a delict; this might be the case, for example, where an accused drives under the influence of alcohol in order to rush a gravely injured person to an emergency room; accordingly, in this case, the military judge abused his discretion when he prohibited appellant from presenting motive evidence on the Article 133, UCMJ, charge, without first evaluating appellant’s specific proffers for factual and legal relevance under MRE 401, MRE 402, and MRE 403 in the context of the Article 133, UCMJ, charge).
 

United States v. Graner, 69 M.J. 104 (relevant evidence means 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).

 

(a military judge did not abuse his discretion in determining that the defense did not present an adequate theory of relevance to justify the compelled production of a DoD report regarding the duties owed to detainees during an interrogation; appellant, who was charged with the maltreatment of Iraqi detainees at an American-operated detainee facility in Iraq, presented no evidence that his state of mind at the facility was in any way affected by this DoD report that he had never seen; in addition, appellant’s affirmative duty to protect the detainees under his charge from abuse was not affected by any views on the international legal status of Iraqi detainees set out in the report; and finally, appellant failed to present any facts which, if true, would constitute unlawful command influence). 

 

(a military judge did not abuse his discretion in excluding the testimony of and an email from a mid-level military intelligence officer who would have testified about when military intelligence officers generally became more forceful in their treatment of detainees and who had written an email in which he stated that he favored the more forceful treatment of detainees during interrogation; although the defense indicated that this evidence would help establish the defense theory that appellant’s superiors authorized the rough treatment of detainees, the evidence was not relevant where there was no evidence that appellant, or anyone giving orders to appellant, had any contact with the officer or knew about the email, and where appellant was still able to present direct evidence that he and his coconspirators believed that they were supposed to soften up the detainees; given the total lack of evidence connecting the officer’s opinions with appellant’s conduct, neither the expected testimony nor the email had a tendency to show that any fact of consequence to the court-martial was more or less probable). 

 
2008 (September Term)


United States v. Bush, 68 M.J. 96 (post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant). 

 

Loving v. United States, 68 M.J. 1 (evidence about an accused’s background and character is relevant in sentencing because of the belief, long held by this society, that an accused who commits criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than an accused who has no such excuse). 

 

United States v. Goodin, 67 M.J. 158 (MRE 401 provides that relevant evidence means 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). 


United States v. Wuterich, 67 M.J. 32 (under RCM 703(f)(1), each party is entitled to the production of evidence which is relevant and necessary; MRE 401 establishes a low threshold of relevance; and, as noted in the nonbinding Discussion accompanying RCM 703(f)(1), relevant evidence is necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue). 

 

2007


United States v. Roberson, 65 M.J. 43 (an accused at a court-martial is entitled to present relevant evidence that is not otherwise inadmissible; relevant evidence is that which has 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). 

 

(the standard for relevance in MRE 401 is relatively low).

 

(military judge erred in excluding evidence that a witness told the accused about the statement of the accused’s co-actor that the accused owed him money for disposing of some of the co-actor’s drugs and that he was willing to get his money by any necessary means, as the evidence of his co-actor’s intent was relevant to the accused’s affirmative defense of duress, which was based on his claim that his co-actor threatened him with bodily harm if he did not participate in the crimes of larceny and forgery, because the communication showed that the accused was aware of the threat and thus it had a tendency to show that there may have been a basis for the accused to be fearful).

 

(military judge abused his discretion in excluding the testimony of a witness that the accused’s co-actor had a handgun, as the testimony, by contributing to the reasonableness of the accused’s fear, was relevant and would have lent support to the accused’s affirmative defense of duress, which was based on his claim that his co-actor threatened him with bodily harm if he did not participate in the crimes of larceny and forgery).


2006


United States v. James, 63 M.J. 217 (relevant evidence is that which has a tendency to make a fact more or less probable; relevancy has two components:  (1) probative value, the relationship between the evidence and the proposition it is offered to prove; and (2) materiality, the relationship between the proposition the evidence is offered to prove and the facts at issue in the case). 

 

(Congress, in enacting Fed. R. Evid. 413 and Fed. R. Evid. 414, and the President in adopting MRE 413 and MRE 414, have decided that evidence of other acts of sexual misconduct is admissible to show a propensity to engage in that type of sexual misconduct; so-called propensity evidence is therefore relevant in cases of sexual assault or child sexual molestation; there is no reason to conclude that prior misconduct is probative and subsequent misconduct is not; it is the fact of the other act that makes it probative, not whether it happened before or after the act now charged; the rules of relevance therefore do not require a temporal limitation on the application of MRE 413 and MRE 414; however, in the application of the MRE 403 balancing, temporal factors may be important).

 

United States v. Washington, 63 M.J. 418 (evidence is relevant under MRE 401 when it has 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). 

 

United States v. Moss, 63 M.J. 233 (relevant evidence 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). 

 

(the partiality of a witness is always relevant as discrediting the witness and affecting the weight of his testimony). 

 

2005

 

United States v. Israel, 60 M.J. 485 (in those cases where the government relies on the general reliability of testing procedures, evidence related to the testing process that is closely related in time and subject matter to the test at issue may be relevant and admissible to attack the general presumption of regularity in the testing process). 

United States v. Berry, 61 M.J. 91 (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).

United States v. Brewer, 61 M.J. 425 (relevant evidence means 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).


(in a use-of-drugs case, testimony from people who were with the accused and observed his behavior for much of the relevant time frame and saw no evidence of drug use goes to the issue of whether he knowingly and wrongfully used drugs on numerous occasions during the charged period; if the members found this testimony credible, it would have bolstered the accused’s innocent ingestion defense and thus was relevant; the use of a permissive inference of wrongful use by the government requires that a court allow the accused some leeway to rebut that inference by using such testimony; the military judge, of course, retains the power to limit repetitive testimony under MRE 403).


2002

United States v. Grant, 56 MJ 410 (regardless of the purpose for which it is admitted, all evidence must be authentic, relevant, and otherwise competent).

United States v. Tyndale, 56 MJ 209 (the doctrine of chances is a viable theory of logical relevance, and it posits that it is unlikely a defendant would be repeatedly, innocently involved in similar, suspicious circumstances).

(to avail oneself of the doctrine of chances, the proponent of the evidence must show that the "other acts" are sufficiently similar; while the factual bases at issue between the charged and uncharged acts need not mirror one another, there must be more than the crudest sort of similarities between the two).

(the doctrine of chances is limited to those circumstances where actions are sufficiently similar to demonstratively contribute to the truth finding process; its use should not be frequent, except in rare factual settings).

United States v. Douglas, 57 MJ 270 (while evidence may not be admissible under one rule, that does not preclude its admission under a different rule if the evidence is relevant and reliable).

2001

United States v. Bailey, 55 MJ 38 (to be admissible, evidence must be both logically and legally admissible at trial; thus, while evidence may be logically relevant, it may be excluded under Mil. R. Evid. as not being legally relevant).

United States v. Dimberio, 56 MJ 20 (the Constitution does not confer upon an accused the right to present any and all types of evidence at trial, but only that evidence which is legally and logically relevant).

2000

United States v. Roberts, 52 MJ 333 (fact of a first claim of innocent ingestion does not necessarily disprove the innocence of a subsequent claim).

United States v. Burns, 53 MJ 42 (photograph of a condom discovered in appellant’s bedroom following an alleged rape was logically and legally relevant, and the probative value was not substantially outweighed by any danger of unfair prejudice; this evidence presents a backdrop that is probative of what happened, and would not invoke passions or lead to an erroneous finding).

United States v. Henry, 53 MJ 108 (military judge did not abuse his discretion by admitting certain sexually oriented magazines and catalogs which afforded the reader the opportunity to purchase sexually explicit videotapes where:  (1) appellant was charged with indecently assaulting his stepdaughter and possession of such material could be evidence of appellant’s intent to gratify his lust or sexual desires; (2) the exhibits tended to support the victim’s out-of-court statement that she watched pornographic movies with appellant; and (3) the evidence had a tendency to prove that appellant had a plan to condition his daughter to accept his sexual advances and, thus, satisfy his sexual desires).

United States v. Matthews, 53 MJ 465 (the mere fact that a person had used drugs at times previous to the charged offenses does not make it more or less probable that the person knowingly used drugs on the date charged).

(court rejects the notion that evidence of an unlawful substance in the accused’s urine after the date of the charged offense and not connected to the charged offense may be used to prove knowing use on the date charged).

(in terms of proving guilty knowledge, the “doctrine of chances” posits that it is unlikely that a defendant would be repeatedly innocently involved in the similar suspicious situations; however, the doctrine requires that the proponent of the evidence show that the subsequent misconduct was under circumstances sufficiently similar to the charged offense as to justify an inference that the first misconduct was knowing).

(where prosecution’s proof of knowing use of marijuana was a paper case based upon urinalysis, there was no showing that the circumstances surrounding either the charged use or a subsequent use were sufficiently similar so as to provide a factual basis for the “doctrine of chances” to show guilty knowledge).

United States v. Browning, 54 MJ 1 (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 (statement made by appellant’s mother to appellant’s wife, reflecting sexual misconduct by appellant with his sisters 25 years earlier, was relevant to show what caused appellant’s wife to seek a divorce; this was made an issue of consequence in the case by the defense which asserted that appellant’s wife had manipulated the children/victims to testify falsely against appellant because appellant’s wife wanted to divorce appellant and marry another man, and the evidence was relevant to rebut the defense suggestion of manipulation).

1999

United States v. Graham, 50 MJ 56 (prior positive urinalysis not logically relevant to an accused’s surprise at testing positive four years later).

United States v. Watt, 50 MJ 102 (the defendant’s beliefs about the victim’s sexual relations with other people are irrelevant to whether the victim was actually consenting with the defendant at the time of alleged nonconsensual sexual act; see MRE 412).

United States v. Whitner, 51 MJ 457 (military judge did not err in admitting homosexual videotape and similar materials to show intent required to prove the crimes charged; an accused’s possession of pornographic books, magazines, or videos concerning a particular sex partner or sexual act, at or near the scene of an alleged sex crime, around the time of that alleged offense, may be relevant evidence of intent or state of mind at that time depending on the circumstances of a particular case).


United States v. Schlamer, 52 MJ 80 (a “poem” glorifying heavy consumption of beer and violent acts against women, and descriptions of photographs depicting deceased women displayed in the accused’s room at the time of murder, were relevant on the issue of premeditation). 


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