U.S. v. Morrison, 52 M.J. 117

Core Criminal Law Subjects: Evidence: Other Acts

1. evidence of other acts of misconduct may not be introduced solely to show that an accused has a propensity to commit crimes of the type charged
2. to be admissible under MRE 404(b), evidence of other acts of misconduct must meet a three-part test: (1) the evidence must reasonably support a finding by the court members that the accused committed the other act – preponderance of the evidence is the standard; (2) the evidence must make a fact of consequence more or less probable; and, (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under MRE 403
3. to be admissible to show a plan or scheme, other acts of misconduct must be almost identical to the charged acts; where offered to show modus operandi, there must be a high degree of similarity between the extrinsic evidence and the charged act, so much so that it is like a “signature” marking the charged offense as the product of the accused
4. military judge abused his discretion admitting evidence of other acts of misconduct in the form of testimony by the accused’s natural daughter about a prolonged period of sexual abuse at the hands of the accused, where the uncharged acts were not sufficiently similar to the charged acts to show plan, scheme, or modus operandi because: (1) aside from youth, there was no common relationship between the victims and appellant; (2) the ages of the victims varied over a broad range; (3) the nature of the acts was different in type and character; (4) the acts were in different types of places; (5) there was no common theme among the circumstances of the acts; and, (6) the time gap between the acts lessened the probative value to show a plan or scheme
5. although uncharged acts had some tendency to show motive and intent, where these issues were not contested and nature of the charged acts was so overtly sexual that motive and intent were not in issue, the probative value of the uncharged acts on motive and intent was minimal
6. while uncharged acts may have had sufficient probative value to satisfy requirement that such evidence make a fact of consequence more or less probable, the prejudicial effect outweighed probative value where: (1) the uncharged acts were far more serious than the charged acts; (2) the uncharged acts were committed with appellant’s natural daughter as opposed to distant relationship and no relationship to the victims of the charged offense; and, (3) uncharged acts constituted a long-term, incestuous relationship involving sexual acts well beyond the duration and nature of the charged acts

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where a ruling admitting evidence includes factfinding, the findings of fact will not be overturned unless they are clearly erroneous
2. a ruling admitting evidence under MREs 404(b) and 403 will not be reversed except for a clear abuse of discretion