U.S. v. James, 63 M.J. 217

Core Criminal Law Subjects: Evidence: Balancing

1. MRE 403 is designed specifically to address the unduly prejudicial impact of otherwise admissible evidence and gives military judges broad discretionary powers to ensure that the probative value of evidence is not outweighed by the danger of unfair prejudice; a careful MRE 403 balancing is an essential ingredient of a constitutional application of MRE 413 and MRE 414, rules that permit the admission of evidence of similar crimes in sexual assault and child molestation cases; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence

Core Criminal Law Subjects: Evidence: Other Acts

1. prior to 1996, the admissibility of evidence of uncharged misconduct in the military justice system was severely restricted by MRE 404(b); this rule allowed evidence of bad acts to be admitted for limited purposes, but the basic evidentiary rule excluded bad acts solely to show bad character and a propensity to act in conformance with that bad character; in 1996, the rule against the admissibility of bad acts to prove a propensity to commit similar acts was turned upside down in cases involving violent sexual behavior or sexual offenses involving minors; Congress, as a part of the Violent Crime Control and Enforcement Act of 1994, enacted Fed. R. Evid. 413 and Fed. R. Evid. 414, rules that became applicable to military practice in 1996, and were formally adopted as MRE 413 and MRE 414 in a 1998 amendment to the MCM; these rules stated that in cases of sexual assault or sexual misconduct with a child, evidence of the commission of similar offenses, was admissible and may be considered for its bearing on any matter to which it is relevant; no exceptions were listed in the rules
2. in interpreting MRE 404(b), CAAF has joined the prevailing federal practice, which does not limit “other” in acts under Fed. R. Evid. 404(b) to “prior” acts; it now continues down that road and concludes that the “one or more offenses” language of MRE 413 and MRE 414 is no more temporally restrictive than the “other crimes” language of MRE 404(b)

Core Criminal Law Subjects: Evidence: Relevance

1. relevant evidence is that which has a tendency to make a fact more or less probable; relevancy has two components: (1) probative value, the relationship between the evidence and the proposition it is offered to prove; and (2) materiality, the relationship between the proposition the evidence is offered to prove and the facts at issue in the case
2. Congress, in enacting Fed. R. Evid. 413 and Fed. R. Evid. 414, and the President in adopting MRE 413 and MRE 414, have decided that evidence of other acts of sexual misconduct is admissible to show a propensity to engage in that type of sexual misconduct; so-called propensity evidence is therefore relevant in cases of sexual assault or child sexual molestation; there is no reason to conclude that prior misconduct is probative and subsequent misconduct is not; it is the fact of the other act that makes it probative, not whether it happened before or after the act now charged; the rules of relevance therefore do not require a temporal limitation on the application of MRE 413 and MRE 414; however, in the application of the MRE 403 balancing, temporal factors may be important

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

1. the propensity evidence of similar crimes in child molestation cases addressed in MRE 414 is admissible for offenses committed both before and after the charged offense, if it is otherwise relevant and admissible under MRE 401, MRE 402, and MRE 403; there is no temporal limitation on the admissibility of specific uncharged sexual misconduct under MRE 414; in this case, MRE 414 authorizes admission of appellant’s child molestation offenses committed after the charged offenses of child molestation
2. prior to 1996, the admissibility of evidence of uncharged misconduct in the military justice system was severely restricted by MRE 404(b); this rule allowed evidence of bad acts to be admitted for limited purposes, but the basic evidentiary rule excluded bad acts solely to show bad character and a propensity to act in conformance with that bad character; in 1996, the rule against the admissibility of bad acts to prove a propensity to commit similar acts was turned upside down in cases involving violent sexual behavior or sexual offenses involving minors; Congress, as a part of the Violent Crime Control and Enforcement Act of 1994, enacted Fed. R. Evid. 413 and Fed. R. Evid. 414, rules that became applicable to military practice in 1996, and were formally adopted as MRE 413 and MRE 414 in a 1998 amendment to the MCM; these rules stated that in cases of sexual assault or sexual misconduct with a child, evidence of the commission of similar offenses, was admissible and may be considered for its bearing on any matter to which it is relevant; no exceptions were listed in the rules
3. as long as appropriate safeguards are applied, MRE 413 and MRE 414, rules of evidence allowing evidence of similar crimes in sexual assault and child molestation cases, are not limited to evidence of behavior taking place prior to that charged
4. Congress, in enacting Fed. R. Evid. 413 and Fed. R. Evid. 414, and the President in adopting MRE 413 and MRE 414, have decided that evidence of other acts of sexual misconduct is admissible to show a propensity to engage in that type of sexual misconduct; so-called propensity evidence is therefore relevant in cases of sexual assault or child sexual molestation; there is no reason to conclude that prior misconduct is probative and subsequent misconduct is not; it is the fact of the other act that makes it probative, not whether it happened before or after the act now charged; the rules of relevance therefore do not require a temporal limitation on the application of MRE 413 and MRE 414; however, in the application of the MRE 403 balancing, temporal factors may be important
5. in interpreting MRE 404(b), CAAF has joined the prevailing federal practice, which does not limit “other” in acts under Fed. R. Evid. 404(b) to “prior” acts; it now continues down that road and concludes that the “one or more offenses” language of MRE 413 and MRE 414 is no more temporally restrictive than the “other crimes” language of MRE 404(b)
6. MRE 414 is not limited to prior instances of child molestation
7. the military judge did not abuse his discretion in ruling that the propensity evidence relating to appellant’s similar misconduct for child molestation that occurred after the charged conduct was admissible and not unfairly prejudicial where the military judge was concerned about undue prejudice, was meticulous in his application of the balancing required by MRE 403, and limited the scope of the admissible propensity evidence
8. military judges dealing with objections to propensity evidence proffered under MRE 413 or MRE 414 should make a record of their application of MRE 403

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. a fundamental rule of statutory interpretation is that courts must presume that a legislature says in a statute what it means and means in a statute what it says there