U.S. v. Berry, 61 M.J. 91

Core Criminal Law Subjects: Evidence: Balancing

1. in conducting the MRE 403 balancing test, a military judge should consider the following factors: the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the factfinder; the time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties

Core Criminal Law Subjects: Evidence: Relevance

1. 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
2. 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

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

1. inherent in MRE 413 is a general presumption in favor of admission; however, it is a constitutional requirement that evidence offered under Rule 413 be subjected to a thorough balancing test under MRE 403 where its probative value is balanced against its prejudicial impact; where that balancing test requires exclusion of the evidence, the presumption of admissibility is overcome
2. to admit evidence under MRE 413, three threshold determinations must be made: (1) the accused is charged with an offense of sexual assault; (2) the evidence proffered is evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence is relevant under the evidence rules governing relevance, MRE 401 and 402
3. once the evidence meets the threshold requirements of MRE 413, a military judge must apply the balancing test of MRE 403 under which the testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members
4. 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
5. a military judge erred in admitting evidence of an uncharged sexual act between the accused and another victim that occurred eight years earlier than the charged forcible sodomy when the accused was thirteen and the other victim was six; although the evidence was relevant, it failed the balancing test after consideration was made of its probative weight, the frequency of the acts, the temporal proximity of the prior act and the presence of intervening circumstances, and the distraction of the factfinder which might result in a distracting mini-trial on a collateral issue
6. the length of time between the events alone is generally not enough to make a determination as to the admissibility of MRE 413 testimony; the circumstances surrounding the individual and the events that transpired in the intervening period must be taken into consideration; where an accused was an adult at the time he committed the prior sexual assault, this court has found incidents occurring more than eight years prior to the charged incident to be relevant under MRE 413; a similar finding is not readily made where a prior incident is between children or adolescents
7. where a military judge finds that the prior “sexual assault” acts of a child or adolescent are probative to an act later committed as an adult, such a determination must be supported in the record by competent evidence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the error in admitting evidence of uncharged sexual acts between the accused and another victim that occurred eight years earlier than the charged forcible sodomy when the accused was thirteen and the other victim was six was prejudicial where the accused became not just a soldier who stood accused of forcible sodomy, but rather a child molester who was charged with the offense of forcible sodomy; even though the evidence of uncharged sexual acts was admitted for the limited purpose of showing that the accused had a propensity to commit nonconsensual sexual acts against unusually vulnerable persons, due to inflammatory nature of the evidence and the emphasis given the testimony by the government, it was likely considered by the members as much more than propensity evidence and improperly tipped the balance of the evidence; the Government has not met its burden of demonstrating that this improperly admitted evidence did not have a substantial influence on the findings

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

1. a military judge abuses his discretion if his application of the correct legal principles to the facts is clearly unreasonable
2. where the military judge is required to do a balancing test under MRE 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference by an appellate court
3. a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of an accused; for a nonconstitutional error such as an erroneous admission of evidence on the merits of a case, the Government has the burden of demonstrating that the error did not have a substantial influence on the findings; in evaluating whether an erroneous admission of Government evidence is harmless, an appellate court uses a four-part test, weighing: (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question