CORE CRIMINAL LAW SUBJECTS: Evidence:
Relevance
2020(October Term)
United States v. Steen, 81 M.J. 261 (materiality is a common law term that has been merged with the concept of relevance under the Military Rules of Evidence; the term materiality refers to a fact that is of consequence in determining the action).
2016 (October Term)
United States v. Hendrix, 76 M.J. 283 (evidence that has no probative value is not relevant and is therefore inadmissible at trial).
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).
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).
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
(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).