U.S. v. Solomon, 72 M.J. 176

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. (there are three threshold requirements for admitting evidence of similar offenses in sexual assault cases under MRE 413: (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under MRE 401 and MRE 402); for (2), the military judge must conclude that the members could find by a preponderance of the evidence that the offenses occurred; once these three findings are made, the military judge is constitutionally required to also apply a balancing test under MRE 403; MRE 403 provides that although relevant, evidence may be 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; in the MRE 413 context, the Rule 403 balancing test should be applied in light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible; accordingly, in conducting the balancing test, the military judge should consider the following non-exhaustive factors to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice: strength of proof of the prior act (i.e., conviction versus gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and the relationship between the parties; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion)

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge clearly abused his discretion in admitting evidence under MRE 413 of prior sexual assaults alleged committed by appellant but for which he had previously been acquitted; the problem was not that an incident for which an accused had been previously acquitted may never be admitted under MRE 413; rather, the problem here was that the military judge altogether failed to mention or reconcile appellant’s important alibi evidence and gave little or no weight to the fact of the prior acquittal; most problematic was the military judge’s determination that the evidence’s probative value outweighed the risk of unfair prejudice under MRE 403, where (1) in determining that the strength of proof of the prior acts were easily beyond a preponderance, the military judge omitted any discussion of a military police report’s tendency to establish appellant’s alibi, and (2) in determining that there was little, if any, risk of distraction of the factfinder, the military judge failed to realize that admitting the evidence would actually result in a classic example of a distracting mini-trial on the prior alleged assaults, and he failed to take actions during trial to limit the overuse of the evidence, including declining to take judicial notice of the acquittal or providing a limiting instruction noting appellant’s acquittal

Core Criminal Law Subjects: Evidence: Relevance

1. MRE 403 provides that although relevant, evidence may be 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; in the MRE 413 context, the Rule 403 balancing test should be applied in light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible; accordingly, in conducting the balancing test, the military judge should consider the following non-exhaustive factors to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice: strength of proof of the prior act (i.e., conviction versus gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and the relationship between the parties; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion

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

1. MRE 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant; inherent in MRE 413 is a general presumption in favor of admission
2. (there are three threshold requirements for admitting evidence of similar offenses in sexual assault cases under MRE 413: (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under MRE 401 and MRE 402); for (2), the military judge must conclude that the members could find by a preponderance of the evidence that the offenses occurred; once these three findings are made, the military judge is constitutionally required to also apply a balancing test under MRE 403; MRE 403 provides that although relevant, evidence may be 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; in the MRE 413 context, the Rule 403 balancing test should be applied in light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible; accordingly, in conducting the balancing test, the military judge should consider the following non-exhaustive factors to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice: strength of proof of the prior act (i.e., conviction versus gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and the relationship between the parties; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion)
3. (inherent in MRE 413 is a general presumption in favor of admission; however, it is a constitutional requirement that evidence offered under Rule 413 be subjected to a thorough balancing test under MRE 403; where that balancing test requires exclusion of the evidence, the presumption of admissibility is overcome
4. in this case, the military judge clearly abused his discretion in admitting evidence under MRE 413 of prior sexual assaults alleged committed by appellant but for which he had previously been acquitted; the problem was not that an incident for which an accused had been previously acquitted may never be admitted under MRE 413; rather, the problem here was that the military judge altogether failed to mention or reconcile appellant’s important alibi evidence and gave little or no weight to the fact of the prior acquittal; most problematic was the military judge’s determination that the evidence’s probative value outweighed the risk of unfair prejudice under MRE 403, where (1) in determining that the strength of proof of the prior acts were easily beyond a preponderance, the military judge omitted any discussion of a military police report’s tendency to establish appellant’s alibi, and (2) in determining that there was little, if any, risk of distraction of the factfinder, the military judge failed to realize that admitting the evidence would actually result in a classic example of a distracting mini-trial on the prior alleged assaults, and he failed to take actions during trial to limit the overuse of the evidence, including declining to take judicial notice of the acquittal or providing a limiting instruction noting appellant’s acquittal

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; when a military judge abuses his discretion in the MRE 403 balancing analysis, the error is nonconstitutional; for a nonconstitutional error such as this one, the government has the burden of demonstrating that the error did not have a substantial influence on the findings
2. the military judge’s error in determining that the probative value of the prior sexual assaults allegedly committed by appellant outweighed the risk of unfair prejudice under MRE 403 was not harmless, where (1) the government conceded that if it were error to admit the MRE 413 evidence in this case, then it would not be harmless, and (2) the government’s entire theory of the case was that appellant engaged in an escalating pattern of deviant sexual behavior and the erroneously admitted evidence was material to the government’s otherwise weak case; as such, the government failed to demonstrate the error did not have a substantial influence on the findings

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
2. when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion
3. a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; when a military judge abuses his discretion in the MRE 403 balancing analysis, the error is nonconstitutional; for a nonconstitutional error such as this one, the government has the burden of demonstrating that the error did not have a substantial influence on the findings