U.S. v. Bare, 65 M.J. 35

Core Criminal Law Subjects: Evidence: Balancing

1. the following nonexhaustive list of factors is relevant to a MRE 403 balancing analysis: strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties

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

1. MRE 414(a) provides that in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant
2. before admitting evidence of other sexual acts under MRE 414, the military judge must make three threshold findings: (1) that the accused is charged with an act of child molestation as defined by MRE 414(a); (2) that the proffered evidence is evidence of his commission of another offense of child molestation as defined by the Rule; and (3) the evidence is relevant under MRE 401 and MRE 402; the military judge must also conduct a MRE 403 balancing analysis, to which the following nonexhaustive list of factors is relevant: strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties
3. when projecting on a child the mens rea of an adult or extrapolating an adult mens rea from the acts of a child, military judges must take care to meaningfully analyze the different phases of the accused’s development rather than treat those phases as unaffected by time, experience, and maturity
4. the military judge in a child molestation case did not abuse his discretion in admitting evidence of uncharged, but similar molestation which occurred when the accused, now in his thirties, was between sixteen and nineteen years old, despite the accused’s contention that the military judge failed to give adequate consideration to his young age at the time the uncharged misconduct, where the military judge conducted a meaningful MRE 403 balancing analysis which considered factors weighing both against and in favor of admission of the evidence, the misconduct occurred while the accused was an adult as well as an adolescent, and the misconduct occurred regularly for a period of about two or three years
5. MRE 414 was intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation

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

1. in applying MRE 403 to evidence otherwise admissible under MRE 414, an appellate court applies an approach balancing numerous factors, to include the following nonexhaustive list of factors: strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties; no one factor is controlling, although in a given case it could be