U.S. v. Ediger, 68 M.J. 243

Military Justice Personnel: Military Judge: Generally

1. military judge properly adopted his predecessor’s earlier determination that testimony regarding appellant’s prior molestation of another child was admissible under MRE 414, despite the fact that the government dismissed an indecent liberties charge alleging that appellant masturbated in front of the child victim, where the government did not dismiss a corresponding false official statement specification which charged that he had made a false official statement that he had never masturbated in the victim’s presence; because the same conduct raised in the dismissed charge, alleged masturbation in front of the victim, remained at issue in appellant’s court-martial despite the government’s dismissal of the indecent liberties charge, the analysis undertaken by the predecessor judge was still relevant and applicable despite the government’s dismissal of the indecent liberties charge

Military Justice Personnel: Military Judge: Instructions

1. where the members 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; moreover, the factfinder may not convict on the basis of propensity evidence alone

Core Criminal Law Subjects: Evidence: Balancing

1. MRE 403 provides that relevant evidence may excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
2. in considering the admissibility of evidence under MRE 414, the importance of careful balancing under MRE 403 arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence

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

1. under MRE 414, 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. admission of evidence under MRE 414 requires a two-step analysis: first, the military judge must make three threshold findings: (1) whether the accused is charged with an act of child molestation as defined by MRE 414(a); (2) whether the proffered evidence is evidence of his commission of another offense of child molestation as defined by the rule; and (3) whether the evidence is relevant under MRE 401 and MRE 402; once the three threshold factors are met, the military judge must then apply a balancing test under MRE 403; the importance of careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence
3. inherent in MRE 414 is a general presumption in favor of admission
4. military judge properly adopted his predecessor’s earlier determination that testimony regarding appellant’s prior molestation of another child was admissible under MRE 414, despite the fact that the government dismissed an indecent liberties charge alleging that appellant masturbated in front of the child victim, where the government did not dismiss a corresponding false official statement specification which charged that he had made a false official statement that he had never masturbated in the victim’s presence; because the same conduct raised in the dismissed charge, alleged masturbation in front of the victim, remained at issue in appellant’s court-martial despite the government’s dismissal of the indecent liberties charge, the analysis undertaken by the predecessor judge was still relevant and applicable despite the government’s dismissal of the indecent liberties charge
5. where the members 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; moreover, the factfinder may not convict on the basis of propensity evidence alone
6. once evidence is admitted under MRE 414, that evidence may be considered for any matter to which it is relevant
7. once it was determined that testimony regarding appellant’s prior child molestation of another victim was relevant propensity evidence in a prosecution for rape of a child and making a false official statement, the members could consider the testimony in their evaluation of any of the charges facing appellant for which it was relevant; the members were not required to consider the propensity evidence solely for the rape charge
8. the exact same acts of sexual molestation are not required for the admission of evidence under MRE 414
9. temporal proximity is but one factor considered by the military judge in determining the admissibility of propensity evidence regarding appellant’s prior acts of child molestation, and the length of time between the events alone is generally not enough to make a determination as to the admissibility of the testimony

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even if testimony that appellant had invited prior child victim to join in when she walked in on appellant and her mother having sex was not evidence of a prior act of child sexual molestation under MRE 414 and was erroneously admitted, the admission of this testimony was harmless under the test for prejudice from an erroneous evidentiary ruling set forth in United States v. Kerr, 51 MJ 401, 405 (CAAF 1999), where the following factors are evaluated to determine prejudice: (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; in this case, the government presented a strong case against appellant at the court-martial and the additional evidence of appellant’s invitation could not have tipped the scales in favor of the government any more than the prior child victim’s other testimony already had

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

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion
2. where a military judge properly conducts the balancing test under MRE 403, an appellate court will not overturn his decision unless there is a clear abuse of discretion; however, 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 from that court