2008 (September Term)
United States v. Burton, 67 M.J. 150 (an accused may not be convicted of a crime based on a general criminal disposition).
(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. Harrow, 65 M.J. 190 (profile evidence is evidence that presents a characteristic profile or trait of an offender, and then places the accusedís personal characteristic or trait within that profile as proof of guilt; generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper; such evidence is improper because it treads too closely to character evidence offered to show that an accused acted in conformity with that character and committed the act in question, evidence prohibited under MRE 404(b)).
(in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was inadmissible profile evidence that focused on characteristics of the abuser, as opposed to characteristics of the child).
(in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry about the symptoms and progression of shaken baby syndrome and her medical conclusion that the victimís primary diagnosis was probably most consistent with an inflicted injury, was not inadmissible profile evidence; the evidence regarding the progressions and symptoms of shaken baby syndrome focused on the characteristics of the child, not the abuser; and the evidence was not profile evidence simply because it tended to incriminate the accused).
United States v. Brooks, 64 M.J. 325 (profile evidence is defined as evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accusedís personal characteristics within that profile as proof of guilt; generally, the use of any profile characteristic as evidence of guilt or innocence is improper at a criminal trial).
United States v. Moss, 63 M.J. 233 (MRE 608(c) allows for evidence to show bias, prejudice, or any motive to misrepresent through the examination of witnesses or extrinsic evidence; rules of evidence should be read to allow liberal admission of bias-type evidence; when the military judge excludes evidence of bias, the exclusion raises issues regarding an accusedís Sixth Amendment right to confrontation).
(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 relevant and admissible pursuant to MRE 608(c) to show bias and motive to misrepresent at the accusedís court-martial on charges of rape, forcible sodomy, and indecent acts; the evidence supported the viable defense theory that the victim had fabricated the alleged rape to cast herself as a victim to gain favorable treatment from her parents, to improve her relationship with them, to change her own present circumstances, and to deflect attention and focus away from herself and her misbehavior; a reasonable juror could have been convinced by the defenseís theory that the alleged child victim had a motive to fabricate a story and could have, therefore, formed a significantly different impression of the alleged child victimís credibility).
States v. Brewer, 61
M.J. 425 (in a use-of-drugs case, where the accused sought to present
of innocent ingestion through the testimony of witnesses who were with
observed his behavior for much of the relevant time frame and saw no
of drug use, this evidence was not admissible as character evidence
404 and 405 because character was not an essential element of that
United States v. Hays, 62 M.J. 158 (profile evidence is evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accusedís personal characteristics within that profile as proof of guilt; generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper).
(in this judge-alone trial, even if the expert testimony of the governmentís witness constituted improper profile evidence regarding the behavioral aspects of persons who sexually abuse children, there was no prejudice to the accused because the military judge, who understood the witnessís testimony as simply interpreting the language of an e-mail sent by the accused, did not treat the testimony as profile evidence or give it any prejudicial weight in that regard).
United States v. Humpherys, No. 01-0426, 57 MJ 83 (Mil.R.Evid. 404(a)(1) allows the accused to present evidence of his good military character if that trait is pertinent to the charged offense; the rule also allows the government to present character evidence in rebuttal of the good-military-character evidence presented by the defense).
(extrinsic evidence of prior acts of misconduct is not admissible to rebut opinion evidence of good military character).
United States v. Catrett, 55 MJ 400 (the military judge is charged with deciding whether a party has established a sufficient foundation for admission of opinion evidence concerning a personís character; the military judge has considerable discretion in this regard).
(the military judge did not abuse her discretion in permitting a civilian to testify about appellantís military character where some foundation was established by evidence that: (1) the witnessí father had been in the military; (2) the witness grew up on the "civil service side" of the military community; and (3) the witness had regular contact with the military and its personnel in various capacities).
United States v. Dimberio, 56 MJ 20 (circumstantial use of character evidence is impermissible except for three exceptions: (1) an accused may introduce pertinent evidence of good character, in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, and the prosecution may introduce similar evidence in rebuttal of the character evidence; and (3) the character of a witness may be gone into as bearing on his credibility).
(whenever evidence of character or a trait of character of a person is admissible, proof may be made by testimony in the form of an opinion (Mil.R.Evid. 405(a)); in this case, the Court assumes that the definition of character evidence is broad and includes psychiatric diagnosis or personality disorders).
(although expert opinion evidence of a psychiatric diagnosis or personality disorder does not fit within the exceptions noted in Mil.R.Evid. 404(a), the accused nonetheless has a constitutional right to introduce the evidence if it is otherwise legally and logically relevant under Mil.R.Evid. 401-403).
(rules such as Mil.R.Evid. 403 and 404(a) that exclude evidence from criminal trials do not abridge an accusedís 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).
United States v. Matthews, No. 53 MJ 465 (extrinsic evidence of specific acts is not admissible to rebut evidence of good military character).
(although cross-examination of character witnesses about specific acts is permissible under MRE 405(a), that cross-examination should be limited to acts that would have occurred prior to the crime charged, because the court wants to test character at that time).
United States v. Jenkins, 54 MJ 12 (MRE 608(a) permits the credibility of a witness to be supported or attacked by opinion evidence, but that opinion evidence may refer only to the witnessí character for truthfulness or untruthfulness; a witness may not, however, opine that another witness is lying or telling the truth).
United States v. Reed, 54 MJ 37 (while good military character may be sufficient to create a reasonable doubt, there is nothing which requires a Court of Criminal Appeals to make a finding that such evidence is not cogent or irresistible in reviewing a case under Article 66).
United States v. Graham, 50 MJ 56 (four year old positive urinalysis does not fit any of the recognized exceptions to MRE 404(b) prohibition against prior bad conduct).United States v. Watt, 50 MJ 102 (defendantís beliefs about victimís sexual reputation or relations with other people are irrelevant to whether the victim was actually consenting with the defendant at the time of alleged nonconsensual sexual act).