U.S. v. Smith, 52 M.J. 337

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. while the military judge should be circumspect and refrain from injecting himself into the proceedings by propounding theories of his own for either party, Article 39(a)(4), UCMJ, and MRE 104(a) contemplate that the military judge determine the admissibility of evidence, which includes reasonable assessment of a party’s position in a particular case

Core Criminal Law Subjects: Evidence: Balancing

1. 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

Core Criminal Law Subjects: Evidence: Other Acts

1. upon objection, the proponent of other acts evidence should be required to identify the specific purpose or purposes for which evidence of other crimes, wrongs, or acts is being offered
2. in determining the admissibility of MRE 404(b) evidence, circumstantial evidence that appellant may have wrongfully appropriated money entrusted to him was sufficient for the fact-finder to reasonably find that the accused committed the “other act” of temporarily appropriating money for his own purposes
3. proffered MRE 404(b) evidence that appellant may have wrongfully appropriated money entrusted to him was relevant to a fact of consequence in larceny case; specifically, that appellant had financial difficulties and the degree of financial pressure that was applied to appellant on the actual day of the charged theft were probative of a motive on his part to commit larceny
4. the probative value of evidence that appellant may have wrongfully appropriated money entrusted to him was not substantially outweighed by the danger of unfair prejudice where: (1) military judge ruled and instructed that the evidence could be used only for its tendency, if any, to prove the accused’s motive for alleged theft; (2) the evidence had great probative value because it revealed the true extent of the accused’s financial desperation on the day of the alleged theft; and, (3) the military judge instructed that the evidence could not be used as propensity evidence

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

1. the first prong of the three-part test for the admissibility of other acts evidence (MRE 404(b)) will be reviewed to determine whether sufficient evidence was admitted so the members could find by a preponderance of the evidence that the other act occurred
2. the decision to admit or exclude evidence under MRE 403 is reviewed for a clear abuse of discretion