U.S. v. Bailey, 55 M.J. 38

Core Criminal Law Subjects: Evidence: Balancing

1. in balancing under Mil. R. Evid. 403, the military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (see Mil. R. Evid. 413) where that judge considered the following factors in conducting the balancing test: proximity; similarity to the charged event; the rate of frequency of the other acts; surrounding circumstances, relevant intervening events; and other relevant similarities or differences
2. military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (Mil. R. Evid. 413); in reviewing the trial judge’s Mil. R. Evid. balancing test, the court considered the following factors which were supported by the record: temporal proximity; similarity to the event charged; frequency of the acts; presence of lack of intervening circumstances; the strength of proof of the act; the trial time needed for proof of the prior act; distraction to factfinder; potential for less prejudicial evidence; and that probative weight of the evidence
3. where the trial judge does not articulate his Mil. R. Evid. balancing analysis on the record, that ruling is given less deference than a ruling where the underlying analysis is fully articulated on the record

Core Criminal Law Subjects: Evidence: Relevance

1. 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

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. in balancing under Mil. R. Evid. 403, the military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (see Mil. R. Evid. 413) where that judge considered the following factors in conducting the balancing test: proximity; similarity to the charged event; the rate of frequency of the other acts; surrounding circumstances, relevant intervening events; and other relevant similarities or differences
2. military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (Mil. R. Evid. 413); in reviewing the trial judge’s Mil. R. Evid. balancing test, the court considered the following factors which were supported by the record: temporal proximity; similarity to the event charged; frequency of the acts; presence of lack of intervening circumstances; the strength of proof of the act; the trial time needed for proof of the prior act; distraction to factfinder; potential for less prejudicial evidence; and that probative weight of the evidence

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

1. a military judge’s evidentiary rulings are reviewed for an abuse of discretion