CORE CRIMINAL LAW SUBJECTS: Evidence: Uncharged Misconduct

2023 (October Term)

United States v. Wilson, 84 M.J. 383 (MRE 404(b) does not require the government to provide notice that it seeks admission of uncharged misconduct evidence on the timing imposed by a military judge's scheduling order; rather, the rule simply states that the government must provide the defense with reasonable notice of the general nature of any such evidence before trial so the accused has a fair opportunity to meet it).

(in this case, consistent with the requirements of MRE 404(b), the government provided the defense with reasonable notice of the uncharged misconduct evidence it sought to introduce during the court-martial where (1) approximately six months before trial the government filed a motion to admit appellant's journal containing graphic descriptions of sexual acts between children and adults for the purpose of providing the panel members with direct evidence of appellant's intent to engage in sexual behavior with minors, and even though the government did not cite to MRE 404(b), the defense specifically argued to the military judge that the journal was not admissible under MRE 404(b), thereby implicitly acknowledging that this MRE 404(b) issue was on the table, and during litigation of the motion, the military judge pointed out that the government's reason for seeking admission of the journal implicated MRE 404(b), and (2) the military judge's denial of the government's motion to pre-admit the journal did not vitiate the notice provided to the defense but rather postponed a ruling on admissibility based on whether the government could eventually lay a proper foundation later at trial, MRE 404(b)'s notice requirement does not require a military judge to rule on the government's motion before trial; the court may reserve its ruling on the admissibility of the evidence until trial, when a proper foundation could possibly be laid by the government).

(MRE 404(b)(1)-(2) provides that evidence of a crime, wrong, or other act may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident).

(if a military judge determines that the proffered uncharged misconduct evidence is properly admissible under MRE 404(b), he or she then must conduct a MRE 403 balancing test and exclude this otherwise admissible evidence if its probative value is substantially outweighed by a danger of unfair prejudice; this balancing test serves as a means of guarding against the general risk that members will treat evidence of uncharged acts as character evidence and use it to infer that an accused has acted in character, and thus convict).

(military judges abuse their discretion in admitting MRE 404(b) uncharged misconduct evidence (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record; (2) if they use incorrect legal principles; or (3) if their application of the correct legal principles to the facts is clearly unreasonable; the abuse of discretion standard of review recognizes that a judge has a wide range of choices and will not be reversed so long as the decision remains within that range).

(an appellate court conducts its assessment of the military judge's decision to admit uncharged misconduct evidence under MRE 404(b) using the three-part test: (1) does the evidence reasonably support a finding that appellant committed a specific act; (2) does evidence of this act make a fact of consequence more or less probable; and (3) is the probative value of the evidence of this act substantially outweighed by the danger of unfair prejudice; the second prong mirrors the relevance concerns reflected under MRE 401 and MRE 402, while the third prong reflects the concerns ordinarily handled under MRE 403).

(if the admitted MRE 404(b) uncharged misconduct evidence fails to meet any of the factors laid out in the three prong test, the military judge will have erred, and an appellate court must then assess the prejudice, if any, resulting from that error; prejudice from erroneous evidentiary rulings is reviewed de novo; and for nonconstitutional evidentiary errors, the government has the burden of demonstrating that the error did not have a substantial influence on the findings).

(where a military judge provides a detailed written analysis with respect to the admission of MRE 404(b) uncharged misconduct evidence, the military judge's ruling is entitled to full deference by an appellate court under the abuse of discretion standard).

(the standard required to meet the first prong (whether the evidence reasonably supports that the appellant committed the acts at issue) of the three prong MRE 404(b) uncharged evidentiary test is low).

(in this case, the military judge properly determined that the evidence reasonably supported a finding that appellant wrote the MRE 404(b) uncharged misconduct journal entries where the journal was found in appellant's bedroom and appellant admitted that the journal belonged to him and was written by him).

(in this case, where appellant was charged with sexual offenses involving two young girls, the military judge did not abuse his discretion when he ruled that appellant's journal—which contained graphic descriptions of sexual acts between children and adults—was admissible under MRE 404(b) as proof of motive and intent regarding the charged offenses where the journal was semen-stained, found by the marital bed, and contained stories written by appellant that shared similarities with appellant's alleged misconduct).

(when conducting an MRE 404(b) uncharged misconduct evidentiary analysis, a military judge must always be on guard against the wolf of propensity that comes dressed in the sheep's clothing of motive).

(one of the most basic precepts of American jurisprudence is that an accused must be convicted based on evidence of the crime before the court, not on evidence of a general criminal disposition).

(prong two of the three part MRE uncharged misconduct evidentiary test presents a binary question: does MRE 404(b) evidence make a fact of consequence more probable; if the answer is no, the evidence is inadmissible under MRE 404(b); if, however, the answer is yes, then and only then an appellate court move on to prong three of the three part test to assess the probative value and prejudicial effect of that evidence).

2020 (October Term)

United States v. Upshaw, 81 M.J. 71 (MRE 413 addresses the admission of evidence of similar crimes in sexual assault cases and states in relevant part that in a court-martial proceeding for a sexual offense, a military judge may admit evidence that the accused committed any other sexual offense and that evidence may be considered on any matter to which it is relevant; this provision provides an exception to MRE 404(b) and the general concept that prior convictions or uncharged misconduct are not admissible to show an accused’s propensity towards bad acts or bad character; the constitutionality of permitting admission of such propensity evidence was upheld by CAAF in US v. Wright, 53 MJ 476 (CAAF 2000)).

(as determined in US v. Hills, 75 MJ 350 (CAAF 2016), the government cannot use charged sexual misconduct to prove propensity to commit other charged sexual misconduct under MRE 413; neither the text of MRE 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case). 

2018 (October Term)

United States v. Hutchins, 78 M.J. 437 (an acquittal in a criminal case does not preclude the government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof such as in an MRE 404(b) context; the fact of the prior acquittal may diminish the probative value of the evidence, however, and should be considered by the military judge when conducting the MRE 403 analysis).

(because issue preclusion was inapplicable in this case, the military judge properly examined whether the evidence related to the acquitted offenses was admissible at trial under MRE 403 and MRE 404(b); the proper way to decide admissibility is to factor in the prior acquittals as part of the balancing test under MRE 403).

United States v. Hale, 78 M.J. 268 (members are permitted to consider evidence of other acts admitted under MRE 404(b) to prove the requisite intent for an offense).

2017 (October Term)

United States v. Guardado, 77 M.J. 90 (in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense; the evidence may be considered on any matter to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; the rules do not extend to instances of charged conduct, however, for it is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent; using charged misconduct as MRE 413 evidence is an abuse of discretion; the prohibition against using charged conduct as propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected).

2015 (September Term)

United States v. Hills, 75 M.J. 350 (MRE 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any manner to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; MRE 413 is an exception to the ordinary rule that evidence of uncharged misconduct or prior convictions is generally inadmissible and may not be used to show an accused’s propensity or predisposition to commit charged conduct; in other words, despite the ordinary rule prohibiting the use of propensity evidence, members are permitted to consider testimony of past victims alleging that an accused perpetrated a sex offense upon them in order to infer that an accused has the propensity to commit the charged sex offense).  

(uncharged sexual assaults that occurred subsequent to the charged offenses are not barred from being admitted under MRE 413). 

(no presumption of innocence attaches to uncharged conduct). 

2010 (September Term)

(it is well established that witness intimidation is relevant evidence to demonstrate consciousness of guilt). 

(evidence of prosecutor intimidation raises an inference from which a factfinder could reasonably infer consciousness of guilt; human nature sometimes prompts persons to strike out at those who seek to reveal misconduct or expose illegal acts; this might be done in anger, frustration, fear, an effort to deter or all four reasons at once; whether such an inference is well founded in context is for the factfinder to decide).

United States v. Yammine, 69 M.J. 70 (MRE 404(b) provides, in relevant part, that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; it may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident).

(whereas MRE 414 was intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation, admissibility under MRE 404(b) is comparatively restrictive). 

(a three-prong test has been established to determine the admissibility of uncharged misconduct under MRE 404(b): (1) does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) is the probative value substantially outweighed by the danger of unfair prejudice; the evidence at issue must fulfill all three prongs to be admissible; the second prong mirrors the relevance concerns reflected under MRE 401 and MRE 402, while the third prong reflects the concerns ordinarily handled under MRE 403). 

(evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not admissible under MRE 404(b) as evidence to show motive, plan, or intent to commit sodomy or indecent acts with a child, where even assuming that the filename evidence reasonably supported a determination that appellant committed the prior misconduct of possession or attempted possession of child pornography, it did not show appellant’s propensity to commit the charged offenses of sodomy with a child; finding sexual propensity evidence relevant under MRE 404(b) outside of MRE 413 or MRE 414 is not an approved basis for admitting this evidence; in this case, the military judge’s apparent reliance on MRE 414 reasoning for his MRE 404(b) analysis was error). 

(evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not admissible under MRE 404(b) as evidence to show motive, plan, or intent to commit sodomy or indecent acts with a child, where under the facts of this case, the prejudicial effect of the evidence substantially outweighed whatever marginal relevance and probative value these computer filenames had to the charged offenses of sodomy with a child; the probative value of the evidence was low, because the underlying files were downloaded over a two‑day period almost two years prior to the charged offenses and subsequently deleted and overwritten, the potential for prejudice was high where the filenames were descriptive and disturbing, and the military judge erroneously allowed the evidence to be used expansively to show appellant’s propensity to commit the charged offenses (an impermissible purpose under MRE 404(b)) in a “he said/he said” dispute between appellant and the victim where the filenames - taken as propensity evidence - arguably corroborated the victim’s version of events). 

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. Harrow, 65 M.J. 190 (the correct test for the admissibility of uncharged misconduct under MRE 404(b) is:  first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice). 

United States v. Schroder, 65 M.J. 49 (MRE 414(a) provides that in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant). 

(before admitting evidence of other acts of child molestation under MRE 414, the military judge must make three threshold findings:  (1) that the accused is charged with an act of child molestation as defined by MRE 414(a); (2) that the proffered evidence is evidence of his commission of another offense of child molestation; and (3) that the evidence is relevant under MRE 401 and MRE 402). 

(before admitting evidence of other acts of child molestation under MRE 414, the military judge must also conduct a MRE 403 balancing analysis, applying factors that include:  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). 

(military judge did not abuse his discretion in admitting other acts evidence under MRE 414 to prove the charged acts of rape and indecent acts, where the military judge made the required threshold findings and conducted a lengthy on-record MRE 403 balancing analysis, and where there was direct evidence in the form of eyewitness testimony by the victims that appellant had committed the other acts of child molestation, there were no significant intervening circumstances between the charged and uncharged acts, and with all the victims, appellant had abused his position as a father figure to take advantage of them). 

(although MRE 414(a) provides that evidence of uncharged misconduct may be considered for any matter to which it is relevant, there is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial; as a result, where MRE 414 evidence is admitted, there is a need for procedural safeguards to delimit the use of such evidence; one such safeguard is to ensure that trial counsel does not use such evidence to unduly inflame the members; the MRE 414 safeguards could be undermined if trial counsel’s comments were permitted to range outside the realm of legally relevant matters and express a sense of outrage and injustice regarding the victims of uncharged misconduct).

2006

United States v. Barnett, 63 M.J. 388 (a three-part test determines the admissibility of uncharged misconduct under MRE 404(b): (1) does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; (3) is the probative value substantially outweighed by the danger of unfair prejudice; the evidence at issue must fulfill all three prongs to be admissible; the first and second prongs address the logical relevance of the evidence; the third prong ensures that the evidence is legally, as well as logically, relevant). 

(in this case, the facts were such that consent, or lack thereof, could not be determined with reference to the prior uncharged misconduct; in a prosecution arising from the accused’s alleged sexual harassment of four trainees, evidence that the accused had engaged in escalating verbal harassment of a coworker, resulting in that coworker explicitly telling the accused to stop calling her and to stop making inappropriate comments was not probative of whether the accused reasonably could have mistaken the silence of the four female trainees to his advances as consent). 

(evidence of uncharged misconduct that the accused had engaged in escalating verbal harassment of a coworker, resulting in that coworker explicitly telling the accused to stop calling her and to stop making inappropriate comments had only marginal logical relevance to the present charged misconduct of the accused’s alleged sexual harassment of four trainees where the relationship between the victims and the accused as well as the nature, circumstances, time frame, and situs of the acts were different; the use of the uncharged misconduct to show intent and plan was weak; the charged acts were so overtly sexual that motive and intent were not in issue; and in the context in which the uncharged acts occurred, they did not tend to show a common plan where the victim was not a subordinate female to the accused in the same way that the trainees were). 

United States v. Washington, 63 M.J. 418 (before a court-martial may submit evidence of prior charged or uncharged acts to the members, it must examine the evidence in the case and decide whether the members could reasonably find the conditional fact by a preponderance of the evidence; the three-prong test of United States v. Reynolds, 29 MJ 105 (CMA 1989), for the admissibility of uncharged misconduct can apply to evidence of charged misconduct; the test contains the following elements: (1) Does the evidence reasonably support a finding by the court members that the appellant committed prior crimes, wrongs or acts?; (2) What fact of consequence is made more or less probable by the existence of this evidence?; (3) Is the probative value substantially outweighed by the danger of unfair prejudice?). 

United States v. Tanner, 63 M.J. 445 (under MRE 404(b), evidence of uncharged misconduct is expressly inadmissible as a general matter to show propensity to commit the charged crime, but it may be admissible for other purposes). 

(MRE 404(b) does not provide a basis for admission of evidence during sentencing that is not otherwise admissible under RCM 1001(b)(4)).

(MRE 414, which addresses the admissibility of evidence of similar crimes in child molestation cases, establishes a presumption in favor of admissibility of evidence of prior similar crimes in order to show predisposition to commit the designated crimes; as such, MRE 414 stands in sharp contrast to MRE 404(b), which bars uncharged misconduct as evidence of predisposition).

(the structure of MRE 404(b) permits admission of evidence of other crimes, wrongs, or acts only upon a showing by the proponent of a specifically relevant purpose to be served under the circumstances of the particular case). 

(MRE 414 does not contain a prohibition against predisposition evidence; instead, in a court-martial for child molestation, MRE 414 provides a vehicle for the admissibility of other acts of child molestation committed by the accused; the rule reflects a presumption that other acts of child molestation constitute relevant evidence of predisposition to commit the charged offense; as such, in a child molestation case, evidence of a prior act of child molestation directly relates to the offense of which the accused has been found guilty and is therefore relevant during sentencing under RCM 1001(b)(4)). 

(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. Thompson, 63 M.J. 228 (the test for admissibility of uncharged acts is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses). 

(to determine whether uncharged acts are admissible under MRE 404(b), a court uses a three-part test; the first prong of the test asks whether the evidence reasonably supports a determination by the factfinder that an appellant committed the prior misconduct; the standard required to meet this first prong is low; the second prong of the test asks what fact of consequence is made more or less probable by the existence of this evidence; and the final prong of the test calls for balancing under MRE 403). 

(even though MRE 404(b) is a rule of inclusion, the evidence must be relevant to a fact in issue other than an accused’s character or predisposition to commit the charged offenses).

(the military judge abused his discretion by admitting statements about the accused’s preservice drug use to show knowledge of marijuana use and the absence of mistake, where the accused did not raise the issues of lack of knowledge or mistake of fact, and thus the evidence served no relevant purpose). 

2005

United States v. Rhodes, 61 M.J. 445 (the admissibility of uncharged misconduct is governed by the three-part Reynolds test: (1) does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) is the probative value substantially outweighed by the danger of unfair prejudice; if any one of the three parts is not met, the evidence is not admissible).

(a change in a witness’s recollection is, by itself, insufficient to support an inference of wrongdoing by the party who benefited from the change).

(in this case, the military judge erred by allowing the government to present evidence concerning the accused’s meeting with his co-actor the day before that co-actor signed an affidavit claiming memory loss; this evidence provided the factfinders with important background information concerning the co-actor’s claimed memory loss; the fact that the meeting took place was an appropriate matter for the factfinders to consider; the meeting might have induced the co-actor to falsely claim loss of memory due to feelings of remorse over betraying a friend; but the military judge erred by admitting the evidence for the improper purpose of demonstrating consciousness of guilt rather than for the proper purpose of evaluating the truthfulness of the co-actor’s claim of memory loss; and where the government’s case was certainly not overwhelming and rested solely on the co-actor’s statement, the suggestion that the accused suborned perjury from the co-actor could have been crucial to the outcome; thus, the erroneous use of this evidence was prejudicial and not harmless).

United States v. Hays, 62 M.J. 158 (under MRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; the admissibility of uncharged misconduct evidence is analyzed under a three-pronged test: (1) Does the evidence reasonably support a finding by the court members that Appellant committed the prior crimes, wrongs, or acts?; (2) What fact of consequence is made more or less probable by the existence of the evidence?; and (3) Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice?; the evidence is inadmissible if it fails any one of these three tests). 

(when considering whether uncharged misconduct constitutes admissible evidence of intent under MRE 404(b), a court considers whether appellant’s state of mind in the commission of both the charged and uncharged acts was sufficiently similar to make the evidence of the prior acts relevant on the intent element of the charged offenses; extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct). 

(evidence of uncharged misconduct in e-mail exhibits describing the accused’s desire to engage in and view sexual activities with minor females was properly admitted to show his intent and motive with respect to the offense of soliciting another to commit carnal knowledge).

United States v. Bresnahan, 62 M.J. 137 (an error in allowing the government to introduce uncharged misconduct evidence of prior injuries to the accused’s infant son was harmless in a court-martial of the accused for the involuntary manslaughter of his son, where the government’s case was strong, the defense’s case was weak, the evidence was only admitted for a limited purpose, and there was the lack of any real risk of unfair prejudice to the accused where the evidence did little, if anything, to suggest that it was the accused rather than his wife who caused the fatal injuries to his son; the evidence’s true import was that it made it more likely that the child’s fatal injury was caused by abuse rather than by accident -- an issue that was not in dispute).  

2004

United States v. McCrimmon, 60 MJ 145 (assuming no overreaching by the government, evidence of uncharged misconduct, otherwise inadmissible evidence, may be presented to the court by stipulation and may be considered by the court). 

2003

United States v. Diaz, 59 MJ 79 (the prosecution cannot introduce uncharged misconduct to rebut a defense that was never raised or presented by the defense; such evidentiary bootstrapping is not permitted).