CORE CRIMINAL LAW SUBJECTS: Evidence: Balancing

2012 (September Term)

United States v. Kelly, 72 M.J. 237 (in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts). 

2010 (September Term)

United States v. Gaddis, 70 M.J. 248 (the balancing test in MRE 412(c)(3) is not facially unconstitutional; however, its current iteration, which purports to balance the alleged victim’s privacy against the probative value of the evidence, is needlessly confusing and could lead a military judge to exclude constitutionally required evidence; the alleged victim’s privacy interests cannot preclude the admission of evidence the exclusion of which would violate the constitutional rights of the accused; MRE 412 precludes the exclusion of any constitutionally required evidence). 

(under the MRE 412 balancing test, if the military judge determines that the evidence that the accused seeks to offer is relevant for one of the three exceptions to the rule of exclusion and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy, such evidence shall be admissible to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined; such evidence is still subject to challenge under MRE 403). 

(whether evidence is constitutionally required, so as to meet the MRE 412(b)(1)(C) exception to MRE 412’s general prohibition of sexual behavior or predisposition evidence, demands the ordinary contextual inquiry and balancing of countervailing interests, e.g., probative value and the right to expose a witness’s motivation in testifying versus the danger of harassment, prejudice, confusion of the issues, the witness’s safety, or evidence that is repetitive or only marginally relevant; this balance is bounded on the one hand by the broad discretion of trial judges and rulemakers’ broad latitude under the Constitution to establish rules excluding evidence from criminal trials, and on the other by the Constitution’s guarantee of a meaningful opportunity to present a complete defense). 

(MRE 412(c)(3)’s balancing test is anything but simple to understand or apply, but it is not facially unconstitutional; there is no question that even considering the privacy interest of the victim will yield a constitutionally valid result (1) when applied to evidence that is both constitutionally required and whose probative value outweighs the danger of unfair prejudice, as well as (2) when applied to evidence that is not constitutionally required and whose probative value does not outweigh the danger of unfair prejudice; the test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy; in those circumstances, the test would be unconstitutional as applied, abrogating US v. Banker, 60 M.J. 216 (CAAF 2004)(erroneously suggesting that balancing constitutionally required evidence against the privacy interest of the victim before admitting it was necessary to further the purpose of the MRE 412)). 

(rape-shield statutes like MRE 412 do not violate an accused’s right to present a defense unless they are arbitrary or disproportionate to the purposes they are designed to serve; MRE 412 is a rape-shield law intended to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses; the MRE 412 balancing test is neither arbitrary nor disproportionate to this purpose; therefore, the test is not facially unconstitutional). 

(military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury).

(under balancing test of MRE 412, the probative value of the evidence must be balanced against and outweigh the ordinary countervailing interests reviewed in making a determination as to whether evidence is constitutionally required). 

(under balancing test of MRE 412, a court must ask whether appellant’s constitutional right to cross-examination has been violated). 

(at best, the balancing test under MRE 412(c)(3), as currently written, is a nullity with respect to the constitutionally required exception set out in MRE 412(b)(1)(C); at worst it has the potential to cause military judges to unconstitutionally exclude evidence that is constitutionally required or admit evidence that is not; to a certainty, though, it has done nothing but add additional layers of confusion and uncertainty to the application of MRE 412).

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). 


2009 (September Term)


United States v. Ellis, 68 M.J. 341 (the probative value of an expert’s testimony on an accused’s risk of recidivism, as relevant to the accused’s rehabilitation potential, was not substantially outweighed by the danger of unfair prejudice under MRE 403 in this judge-alone case, despite the accused’s claim that the expert’s use of a Static 99 appraisal resulted in an over reliance on the mere number of charged offenses due to the manner in which he was charged, where the accused did not object to the expert’s use of the appraisal on such a basis, the expert was questioned thoroughly about the methodology of the appraisal by both the trial defense counsel and the military judge, and the military judge was aware of the issue regarding the potential government influence resulting from the nature of the charging decision; the challenge that the accused had as to methodology went to weight rather than admissibility). 


United States v. Ediger, 68 M.J. 243 (MRE 403 provides that relevant evidence may 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 considering the admissibility of evidence under MRE 414, the importance of careful balancing under MRE 403 arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence).

2008 (September Term)


United States v. Ashby, 68 M.J. 108 (at sentencing, even if admissible as aggravation under RCM 1001(b)(4), the evidence must pass the balancing test of MRE 403; MRE 403 states 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). 


United States v. Collier, 67 M.J. 347 (although a military judge enjoys wide discretion in applying MRE 403 balancing, an appellate court gives military judges less deference if they fail to articulate their balancing analysis on the record).   

 

(the term unfair prejudice in the context of MRE 403 speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged).

 

(MRE 403 addresses prejudice to the integrity of the trial process, not prejudice to a particular party or witness). 


(the military policy subjecting homosexuals to mandatory separation if they have engaged in, or solicited another to engage in, homosexual acts is not a per se indication of unfair prejudice within the military justice system). 


(the court of criminal appeals erred in concluding that the prejudicial effect of the evidence of a homosexual romantic relationship between the main government witness and appellant outweighed its probative value, where its conclusion was based on speculation about the prejudicial impact unrelated to any specific findings of the military judge; in this case, the military judge made no findings related to potential prejudice to the trial process that could be created by evidence of homosexuality, such as a tendency for members either to disbelieve the witness or to find appellant guilty without a proper basis; in any event, any conclusion that the factfinders would be predisposed against either the government witness or appellant based on a homosexual bias would have been speculative; the CCA inappropriately focused on a generalized and amorphous prejudicial impact of the military’s homosexual policy without identifying who or what would be prejudiced; that policy is not a per se indication of unfair prejudice within the military justice system; and there is no principled reason to prevent an accused from using evidence of a homosexual relationship to potential advantage, particularly where, as here, appellant was the proponent of the evidence of a homosexual relationship with the government’s primary witness). 

 

United States v. Stephens, 67 M.J. 233 (sentencing evidence is subject to the requirements of the balancing test of MRE 403). 

 

(under the MRE 403 balancing test, relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice; the overriding concern of MRE 403 is that evidence will be used in a way that distorts rather than aids accurate fact-finding). 

 

(the probative value of the testimony of a child victim’s father during the government’s sentencing case about the effect the investigation and court-martial had on the victim was not substantially outweighed by any danger of unfair prejudice to appellant, where the father’s testimony was probative because it showed specific psychological harm that the child suffered as a result of appellant’s offense (i.e., she was no longer able to enjoy sports and other activities and had changed significantly), where the possibility that the court members might misuse this testimony as a comment on appellant’s right to confront and cross-examine witnesses was remote, where the admission of this evidence did not distort accurate fact-finding, and where the evidence was relevant victim impact evidence and properly admitted under RCM 1001(b)(4)).

2007


United States v. Bare, 65 M.J. 35 (the following nonexhaustive list of factors is relevant to a MRE 403 balancing analysis:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of 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).


2006

 

United States v. Barnett, 63 M.J. 388 (in 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). 

 

(even assuming that the evidence of the accused’s prior uncharged misconduct with a female coworker was logically relevant in a prosecution arising from his alleged sexual harassment of four female trainees, the probative value of such evidence did not substantially outweigh the danger of unfair prejudice where the probative value on the issue of consent was marginal at best and where the specter of unfair prejudice was raised by testimony that the accused had made advances toward the Marine wife of another Marine and had made comments with racial overtones; the military judge’s limiting instruction could not eliminate the unfair prejudice in light of the low probative value of the evidence coupled with the nature of the prejudice).  

 

United States v. James, 63 M.J. 217 (MRE 403 is designed specifically to address the unduly prejudicial impact of otherwise admissible evidence and gives military judges broad discretionary powers to ensure that the probative value of evidence is not outweighed by the danger of unfair prejudice; a careful MRE 403 balancing is an essential ingredient of a constitutional application of MRE 413 and MRE 414, rules that permit the admission of evidence of similar crimes in sexual assault and child molestation cases; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence). 

 

United States v. Tanner, 63 M.J. 445 (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). 

  

United States v. Moss, 63 M.J. 233 (admission of specific acts of bias is dependent upon the military judge properly evaluating the evidence’s probative value against its potential for unfair prejudice as measured by MRE 403).

 

(the probative value of the evidence that alleged child victim had been beaten by her mother, had used alcohol and drugs, had been expelled from school, had attempted suicide, had committed general acts of disobedience, and was unhappy with her restrictive home environment was high where it directly fit the defense theory for which it would have been offered; on the other hand, the risk of unfair prejudice in this case was fairly low; although the evidence was probative to the defense theory, it was a double-edged sword that also could have hurt appellant’s case; when viewed in context of the timing of the events, the alleged child victim’s prior bad acts could have been seen as evidence of post-traumatic stress disorder stemming from the alleged rape; thus, the danger of unfair prejudice in this case did not significantly outweigh the probative value of admitting the evidence).


2005


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

 

2004

 

United States v. Traum, 60 MJ 226 (however relevant and reliable an expert’s testimony might be, such 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).

 

2002

United States v. Tyndale, 56 MJ 209 (a military judge enjoys wide discretion in balancing under Mil.R.Evid. 403, and where the military judge properly weighs the evidence under this rule and articulates the reasons for admitting the evidence, the military judge will be reversed only for a clear abuse of discretion).

United States v. Humpherys, 57 MJ 83 (military judge has wide discretion in applying Mil.R.Evid 403, and Court of Appeals for the Armed Forces exercises great restraint in reviewing a military judge’s 403 ruling if his reasoning is articulated on the record; when the military judge fails to explain the grounds for denying a Rule 403 objection, his ruling is not entitled to such deference).

(although the military judge did not articulate his reasons for concluding that any prejudicial effect of the testimony did not substantially outweigh its probative value, Court of Appeals for the Armed Forces may determine that the record permits it to conduct the required balancing during appellate review).

2001

United States v. Hursey, 55 MJ 34 (when a military judge conducts a proper balancing test under Mil. R. Evid. 403, the evidentiary ruling will not be overturned unless there is a clear abuse of discretion; when the military judge fails to articulate a balancing analysis on the record, the ruling is accorded less deference).

United States v. Bailey, 55 MJ 38 (in balancing under Mil. R. Evid. 403, the military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (see Mil. R. Evid. 413) where that judge considered the following factors in conducting the balancing test:  proximity; similarity to the charged event; the rate of frequency of the other acts; surrounding circumstances, relevant intervening events; and other relevant similarities or differences).

(military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (Mil. R. Evid. 413); in reviewing the trial judge’s Mil. R. Evid. balancing test, the court considered the following factors which were supported by the record:  temporal proximity; similarity to the event charged; frequency of the acts; presence of lack of intervening circumstances; the strength of proof of the act; the trial time needed for proof of the prior act; distraction to factfinder; potential for less prejudicial evidence; and that probative weight of the evidence).

(where the trial judge does not articulate his Mil. R. Evid. balancing analysis on the record, that ruling is given less deference than a ruling where the underlying analysis is fully articulated on the record).

United States v. Dewrell, 55 MJ 131 (military judge’s careful and reasoned analysis on the record satisfied the constitutional requirement that evidence offered under Mil. R. Evid. 413 be subjected to a thorough balancing test pursuant to Mil. R. Evid. 403).

(when the judge does not articulate the balancing analysis on the record, his evidentiary ruling is given less deference than where the balancing analysis is fully articulated on the record).

United States v. Young, 55 MJ 193 (a military judge enjoys wide discretion under Mil. R. Evid. 403, and where he properly weighs the evidence under Mil. R. Evid. 403 and articulates the reasons for admitting the evidence, his decision will be reversed only for a clear abuse of discretion).

United States v. Dimberio, 56 MJ 20 (even though evidence may be logically relevant under Mil.R.Evid. 401, it may be excluded under Mil.R.Evid. 403 as not legally relevant 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).

(rules such as Mil.R.Evid. 403 and 404(a) that exclude evidence from criminal trials do not abridge an accused’s constitutional right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve and do not infringe upon a weighty constitutional interest of the accused).

(in the absence of character evidence that appellant’s wife’s mental health problems were tied to violent acts, the introduction of a mental health diagnosis that she did not handle stress well was both speculative and potentially confusing to the members; nor was appellant’s proffer with respect to this evidence precise in describing limitations to the potential expert testimony; the evidence was thus inadmissible under Mil.R.Evid. 403).

2000

United States v. Smith, 52 MJ 337 (decision to admit or exclude evidence under MRE 403 is imparted to the sound discretion of the military judge; an explanation of his ruling is preferred, but has not been required as a predicate for appellate review).

United States v. Wright, 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”, 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).

United States v. Glover, 53 MJ 366 (military judge admitted evidence of two prior bad check convictions which were over ten years old; if he did so in reliance on his conclusion that MRE 403 did not apply to evidence introduced at sentencing, he erred.  See RCM 1001(b)(3) and Analysis thereto).

(where military judge properly balances probative value of alleged threats made by appellant against their prejudicial impact, articulates the reasons for admitting/excluding the evidence, and gives carefully crafted limiting instructions, the military judge will only be reversed for clear abuse of discretion).

United States v. Browning, 54 MJ 1 (if a military judge weighs and excludes evidence under MRE 403, an appellant has the burden of coming forward with conclusive argument that the military judge abused his discretion; the military judge will not be reversed unless there is a clear abuse of discretion).

United States v. Baumann, 54 MJ 100 (evidence of prior sexual misconduct by appellant with young siblings in his family could highly prejudice appellant’s defense that he did not sexually molest his own daughter; in light of potential for prejudice and confusion of issues, and in view of the reduced probative value of such evidence as an explanation for why appellant’s wife sought a divorce, military judge abused his discretion by admitting the challenged evidence (MRE 403)).

(erroneous admission of evidence, over defense objection under MRE 403 was harmless error where, considered in light of the record of trial and the criteria set forth in United States v. Weeks, 20 MJ 22, 25 (CMA 1985), the evidence of guilt was overwhelming, the asserted defense was extremely weak (if a defense at all), and the military judge gave extensive limiting instructions).

(the burden is on the government to show that erroneous admission of evidence, over defense objection under MRE 403 did not materially prejudice the substantial rights of the appellant).

United States v. Manns, 54 MJ 164 (sentencing evidence, like all other evidence, is subject to the balancing test of Mil. R. Evid. 403).

(military judge has wide discretion in applying the balancing test of Mil. R. Evid. 403, and ordinarily appellate courts will exercise great restraint in reviewing a judge’s decisions under Rule 403).

(when a military judge conducts a proper balancing test under Mil. R. Evid. 403, the ruling will not be overturned unless there is a clear abuse of discretion; less deference is given to military judges if they fail to articulate their balancing analysis on the record; no deference is given to military judges if they fail to conduct a required Rule 403 balancing test).

(prosecution sentencing evidence containing admissions by appellant that he had used marijuana, committed adultery, used prostitutes, and obsessed over sex was not “overkill” subject to exclusion under Mil. R. Evid. 403 in a bench trial where the potential for unfair prejudice was substantially less that it would be in a trial with members; court was satisfied that military judge was able to sort through the evidence, weigh it, and give it appropriate weight).

United States v. Tanksley, 54 MJ 169 (a judge’s decision to admit evidence under Mil. R. Evid. 403 is reviewed for abuse of discretion; the military judge enjoys wide discretion when applying Mil. R. Evid. 403, and where he conducts and announces his balancing test on the record a reviewing court will exercise great restraint in reviewing his decision and give him maximum deference in determining whether there is a clear abuse of discretion).

1999

United States v. Graham, 50 MJ 56 (any relevance associated with prior positive urinalysis outweighed by danger of prejudice).

United States v. Gray, 51 MJ 1 (photographs of appellant’s victims were not unduly gruesome and prejudicial in multiple, violent murder case, and probative value was not substantially outweighed by prejudicial effect).

United States v. Whitner, 51 MJ 457 (challenged evidence of homosexual videotape and similar materials was proffered on important/viable issues pertaining to appellant’s state of mind or intent during the charged offenses and the nature of his sexual desires at the time; defense’s failure to specifically contest the intent issues did not remove the government’s burden of proof on these elements of the offenses or render this evidence unduly prejudicial).

(challenged evidence of homosexual videotape and similar materials did not have diminished probative value where:  (1) defense claimed appellant could not remember what happened on night in question; (2) defense claimed alleged victim was presenting patently false details in his testimony which should cause it to be rejected in its entirety; (3) the defense made an alternate concession that the alleged victim may have consented to oral sodomy with “somebody”; and (4) suggestion that conduct was consensual was vague and equivocal, thus not clearly removing issue of intent from this case).

(challenged evidence of homosexual videotape and similar materials did not have diminished probative value because it was cumulative where:  (1) appellant’s pretrial admissions were more generic; (2) appellant’s pretrial admissions were undermined by appellant’s claims that he was too drunk to remember his actions and intentions on the night in question; (3) the challenged evidence was specific in nature; and, (4) the challenged evidence had a nexus to the charged offenses).

(challenged evidence of homosexual videotape and similar materials was not unduly prejudicial where:  (1) despite the coercive homosexual acts portrayed in some of the challenged materials, appellant was found not guilty of forcible offenses; (2) appellant did not actively dispute overwhelming proof of participation in lesser offenses; and, (3) the military judge gave repeated limiting instructions).


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