U.S. v. Schroder, 65 M.J. 49

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. before admitting evidence of other acts of child molestation 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; and (3) that the evidence is relevant under MRE 401 and MRE 402
2. before admitting evidence of other acts of child molestation under MRE 414, the military judge must also conduct a MRE 403 balancing analysis, applying factors that include: 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

Military Justice Personnel: Military Judge: Instructions

1. in child molestation case in which other acts of child molestation were admitted, military judge was not required to give an instruction distinguishing between the charged acts that met the definition of offense of child molestation in MRE 414 and those in the charge that did not
2. in child molestation case, military judge erred in his instruction as to how the members could consider the MRE 414 evidence, where the instruction was susceptible to an unconstitutional interpretation that the members were permitted to conclude that the presence of similarities between the charged and uncharged misconduct were, standing alone, sufficient evidence to convict appellant of the charged offenses
3. where the members in a child molestation case are instructed that MRE 414 evidence may be considered for its bearing on an accused’s propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged

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 acts of child molestation 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; and (3) that the evidence is relevant under MRE 401 and MRE 402
3. before admitting evidence of other acts of child molestation under MRE 414, the military judge must also conduct a MRE 403 balancing analysis, applying factors that include: 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
4. the definition of an offense of child molestation in MRE 414(d)-(g) provides an exclusive list of offenses that qualify as offenses of child molestation; thus, it does not give the military judge the discretion to admit uncharged misconduct in every case in which the accused has allegedly committed indecent acts or indecent liberties with a child as those offenses are defined in the MCM; the charged acts must fall within the specific definition of an offense of child molestation set out in MRE 414
5. indecent acts specification alleged an offense of child molestation within the meaning of the MRE 414 definition of such an offense, where that specification alleged that the accused placed his hand upon the victim’s buttocks, placed his hand upon her groin area, and grabbed her buttocks, notwithstanding the fact that the specification also alleged two other acts that did not fall within the definition -- placing his hand on the victim’s leg and kissing her on the neck; those latter two acts were not within the MRE 414 definition for sexual acts or sexual contact
6. military judge did not abuse his discretion in admitting other acts evidence under MRE 414 to prove the charged acts of rape and indecent acts, where the military judge made the required threshold findings and conducted a lengthy on-record MRE 403 balancing analysis, and where there was direct evidence in the form of eyewitness testimony by the victims that appellant had committed the other acts of child molestation, there were no significant intervening circumstances between the charged and uncharged acts, and with all the victims, appellant had abused his position as a father figure to take advantage of them
7. in child molestation case in which other acts of child molestation were admitted, military judge was not required to give an instruction distinguishing between the charged acts that met the definition of offense of child molestation in MRE 414 and those in the charge that did not
8. in child molestation case, military judge erred in his instruction as to how the members could consider the MRE 414 evidence, where the instruction was susceptible to an unconstitutional interpretation that the members were permitted to conclude that the presence of similarities between the charged and uncharged misconduct were, standing alone, sufficient evidence to convict appellant of the charged offenses
9. where the members in a child molestation case are instructed that MRE 414 evidence may be considered for its bearing on an accused’s propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged
10. in a child molestation case, the factfinder may not convict on the basis of propensity evidence alone
11. although MRE 414(a) provides that evidence of uncharged misconduct may be considered for any matter to which it is relevant, there is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial; as a result, where MRE 414 evidence is admitted, there is a need for procedural safeguards to delimit the use of such evidence; one such safeguard is to ensure that trial counsel does not use such evidence to unduly inflame the members; the MRE 414 safeguards could be undermined if trial counsel’s comments were permitted to range outside the realm of legally relevant matters and express a sense of outrage and injustice regarding the victims of uncharged misconduct

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

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 acts of child molestation 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; and (3) that the evidence is relevant under MRE 401 and MRE 402
3. before admitting evidence of other acts of child molestation under MRE 414, the military judge must also conduct a MRE 403 balancing analysis, applying factors that include: 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
4. military judge did not abuse his discretion in admitting other acts evidence under MRE 414 to prove the charged acts of rape and indecent acts, where the military judge made the required threshold findings and conducted a lengthy on-record MRE 403 balancing analysis, and where there was direct evidence in the form of eyewitness testimony by the victims that appellant had committed the other acts of child molestation, there were no significant intervening circumstances between the charged and uncharged acts, and with all the victims, appellant had abused his position as a father figure to take advantage of them
5. although MRE 414(a) provides that evidence of uncharged misconduct may be considered for any matter to which it is relevant, there is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial; as a result, where MRE 414 evidence is admitted, there is a need for procedural safeguards to delimit the use of such evidence; one such safeguard is to ensure that trial counsel does not use such evidence to unduly inflame the members; the MRE 414 safeguards could be undermined if trial counsel’s comments were permitted to range outside the realm of legally relevant matters and express a sense of outrage and injustice regarding the victims of uncharged misconduct

Trial Stages: Merits: Argument

1. trial counsel is at liberty to strike hard, but not foul, blows; to that end, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
2. an accused is supposed to be tried and sentenced as an individual on the basis of the offenses charged and the legally and logically relevant evidence presented; thus, trial counsel is also prohibited from injecting into argument irrelevant matters, such as personal opinions and facts not in evidence
3. although MRE 414(a) provides that evidence of uncharged misconduct may be considered for any matter to which it is relevant, there is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial; as a result, where MRE 414 evidence is admitted, there is a need for procedural safeguards to delimit the use of such evidence; one such safeguard is to ensure that trial counsel does not use such evidence to unduly inflame the members; the MRE 414 safeguards could be undermined if trial counsel’s comments were permitted to range outside the realm of legally relevant matters and express a sense of outrage and injustice regarding the victims of uncharged misconduct
4. in child molestation case, trial counsel erred in arguing that the members should render justice for the purported victim of uncharged misconduct which was admitted as propensity evidence; the argument invited the members to convict and punish appellant for his uncharged misconduct, as opposed to using that misconduct to inform their judgments regarding the charged conduct; this error was also plain and obvious

Trial Stages: Merits: Instructions › Generally

1. in child molestation case in which other acts of child molestation were admitted, military judge was not required to give an instruction distinguishing between the charged acts that met the definition of offense of child molestation in MRE 414 and those in the charge that did not
2. in child molestation case, military judge erred in his instruction as to how the members could consider the MRE 414 evidence, where the instruction was susceptible to an unconstitutional interpretation that the members were permitted to conclude that the presence of similarities between the charged and uncharged misconduct were, standing alone, sufficient evidence to convict appellant of the charged offenses
3. where the members in a child molestation case are instructed that MRE 414 evidence may be considered for its bearing on an accused’s propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged

Trial Stages: Sentence and Punishment: Argument

1. trial counsel is at liberty to strike hard, but not foul, blows; to that end, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
2. an accused is supposed to be tried and sentenced as an individual on the basis of the offenses charged and the legally and logically relevant evidence presented; thus, trial counsel is also prohibited from injecting into argument irrelevant matters, such as personal opinions and facts not in evidence
3. although MRE 414(a) provides that evidence of uncharged misconduct may be considered for any matter to which it is relevant, there is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial; as a result, where MRE 414 evidence is admitted, there is a need for procedural safeguards to delimit the use of such evidence; one such safeguard is to ensure that trial counsel does not use such evidence to unduly inflame the members; the MRE 414 safeguards could be undermined if trial counsel’s comments were permitted to range outside the realm of legally relevant matters and express a sense of outrage and injustice regarding the victims of uncharged misconduct
4. in child molestation case, trial counsel erred in arguing that the members should render justice for the purported victim of uncharged misconduct which was admitted as propensity evidence; the argument invited the members to convict and punish appellant for his uncharged misconduct, as opposed to using that misconduct to inform their judgments regarding the charged conduct; this error was also plain and obvious

Trial Stages: Appeals: Harmless / Prejudicial Error

1. instructional error regarding the use of propensity evidence in child molestation case was harmless beyond a reasonable doubt with respect to the charge of indecent acts with a child, given the members’ finding of guilty only on the lesser included offense of indecent acts with another, the totality of the instructions provided by the military judge, and the detailed and credible nature of the victims’ testimony
2. instructional error regarding the use of propensity evidence in child molestation case was harmless beyond a reasonable doubt with respect to the charge of rape, given the strength of the government’s case; in addition to the eyewitness testimony regarding charged and uncharged misconduct, the government’s evidence included several statements by appellant to various law enforcement agencies, including an admission and corroborating details

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in child molestation case, although trial counsel erred in arguing that the members should render justice for the purported victim of uncharged misconduct which was admitted as propensity evidence, appellant failed to meet his burden of establishing plain error, where the inappropriate argument was limited, the government’s case was strong, and the evidence regarding the purported victim of uncharged misconduct was already graphically and appropriately before the members -- all factors suggesting that it was the evidence and not trial counsel’s isolated comments that caused the members to return a guilty verdict; in addition, the adjudged confinement was well below both the maximum authorized and that requested by the trial counsel -- a factor suggesting that the members were not inflamed by trial counsel’s argument and instead reached an independent judgment on sentencing; based on these factors, the improper portion of trial counsel’s argument did not sway the findings or the sentence

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

1. the question of whether a jury was properly instructed is a question of law that is reviewed de novo
2. an appellate court applies an abuse of discretion standard to a military judge’s decision on whether to give a tailored instruction requested by the defense
3. where there are constitutional dimensions at play, appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt
4. where defense counsel did not object to argument of trial counsel, an appellate court reviews the argument for plain error
5. improper argument does not require reversal unless the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone