U.S. v. Barnett, 63 M.J. 388

Core Criminal Law Subjects: Evidence: Balancing

1. in conducting a 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
2. even assuming that the evidence of the accused’s prior uncharged misconduct with a female coworker was logically relevant in a prosecution arising from his alleged sexual harassment of four female trainees, the probative value of such evidence did not substantially outweigh the danger of unfair prejudice where the probative value on the issue of consent was marginal at best and where the specter of unfair prejudice was raised by testimony that the accused had made advances toward the Marine wife of another Marine and had made comments with racial overtones; the military judge’s limiting instruction could not eliminate the unfair prejudice in light of the low probative value of the evidence coupled with the nature of the prejudice

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

1. consent, as a legal matter, and in the context of adult relations, is a fact-specific inquiry that must be made on a case-by-case basis

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. a three-part test determines the admissibility of uncharged misconduct under MRE 404(b): (1) does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; (3) is the probative value substantially outweighed by the danger of unfair prejudice; the evidence at issue must fulfill all three prongs to be admissible; the first and second prongs address the logical relevance of the evidence; the third prong ensures that the evidence is legally, as well as logically, relevant
2. in this case, the facts were such that consent, or lack thereof, could not be determined with reference to the prior uncharged misconduct; in a prosecution arising from the accused’s alleged sexual harassment of four trainees, evidence that the accused had engaged in escalating verbal harassment of a coworker, resulting in that coworker explicitly telling the accused to stop calling her and to stop making inappropriate comments was not probative of whether the accused reasonably could have mistaken the silence of the four female trainees to his advances as consent
3. evidence of uncharged misconduct that the accused had engaged in escalating verbal harassment of a coworker, resulting in that coworker explicitly telling the accused to stop calling her and to stop making inappropriate comments had only marginal logical relevance to the present charged misconduct of the accused’s alleged sexual harassment of four trainees where the relationship between the victims and the accused as well as the nature, circumstances, time frame, and situs of the acts were different; the use of the uncharged misconduct to show intent and plan was weak; the charged acts were so overtly sexual that motive and intent were not in issue; and in the context in which the uncharged acts occurred, they did not tend to show a common plan where the victim was not a subordinate female to the accused in the same way that the trainees were

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in a prosecution arising from the accused’s alleged sexual harassment of four trainees, the erroneous admission of evidence of uncharged misconduct that the accused had engaged in escalating verbal harassment of a coworker, resulting in that coworker explicitly telling the accused to stop calling her and to stop making inappropriate comments was harmless where the government’s case was strong and the defense did not present a compelling case; all four of the complainants testified, there were similarities between their respective rendition of events, there was nothing in the record to indicate that these four individuals were not credible witnesses, all four denied that the encounters were consensual, and each recounted some type of nonverbal manifestation of their unwillingness to be touched by appellant; finally, the evidence of the uncharged misconduct was of marginal importance given the difference in contexts, the fact that is allegedly occurred three years earlier, and the defense brought in two witnesses who rebutted the evidence

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

1. a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard
2. a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
3. where a 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 from an appellate court
4. having determined that a military judge abused his discretion in admitting evidence of uncharged misconduct, an appellate court must then determine whether the error resulted in material prejudice to appellant’s substantial rights; prejudice from an erroneous evidentiary ruling is evaluated by 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