U.S. v. Wilson, 84 M.J. 383

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. MRE 404(b)'s uncharged misconduct notice requirement does not require a military judge to rule on the government's motion before trial; the court may reserve its ruling on the admissibility of the evidence until trial, when a proper foundation could possibly be laid by the government
2. if a military judge determines that the proffered evidence is properly admissible under MRE 404(b), he or she then must conduct a MRE 403 balancing test and exclude this otherwise admissible evidence if its probative value is substantially outweighed by a danger of unfair prejudice; this balancing test serves as a means of guarding against the general risk that members will treat evidence of uncharged acts as character evidence and use it to infer that an accused has acted in character, and thus convict
3. when conducting an MRE 404(b) analysis, a military judge must always be on guard against the wolf of propensity that comes dressed in the sheep's clothing of motive

Military Justice Personnel: Military Judge: Discretion

1. in this case where the MRE 404(b) uncharged misconduct evidentiary notice provided to the defense by the government did not violate due process concerns, it was not the role of an appellate court to police compliance with a military judge's scheduling order; instead, it lay within the sound discretion of the military judge to do so
2. military judges abuse their discretion in admitting MRE 404(b) uncharged misconduct evidence (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record; (2) if they use incorrect legal principles; or (3) if their application of the correct legal principles to the facts is clearly unreasonable; the abuse of discretion standard of review recognizes that a judge has a wide range of choices and will not be reversed so long as the decision remains within that range
3. where a military judge provides a detailed written analysis with respect to the admission of MRE 404(b) uncharged misconduct evidence, the military judge's ruling is entitled to full deference by an appellate court under the abuse of discretion standard
4. in this case, with respect to the military judge's MRE 403 analysis, the military judge did not abuse his discretion when he ruled that the probative value of the journal entries was not substantially outweighed by the danger of unfair prejudice on the ground of motive; however, he did abuse his discretion when he ruled that the probative value of the journal entries was not substantially outweighed by the danger of unfair prejudice on the ground of intent

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Offenses on/after 1 Jan 2019 › (b) Sexual Assault

1. to the extent that United States v. Morrison, 52 MJ 117 (CAAF 1999), may be viewed as standing for the proposition that (a) intent is not "in issue" in those sexual assault cases where the underlying conduct, standing alone, is overtly sexual in nature, and (b) under such circumstances "intent evidence" automatically fails to survive a MRE 403 analysis or to meet the second prong of the three prong MRE 404(b) evidentiary test, that conclusion is not supported by CAAF's other case law; in a series of precedents over the years, CAAF has held that intent is always at issue in a criminal case—even when the defense chooses not to contest it

Core Criminal Law Subjects: Evidence: Balancing

1. if a military judge determines that the proffered uncharged misconduct evidence is properly admissible under MRE 404(b), he or she then must conduct a MRE 403 balancing test and exclude this otherwise admissible evidence if its probative value is substantially outweighed by a danger of unfair prejudice; this balancing test serves as a means of guarding against the general risk that members will treat evidence of uncharged acts as character evidence and use it to infer that an accused has acted in character, and thus convict
2. in this case, with respect to the military judge's MRE 403 analysis, the military judge did not abuse his discretion when he ruled that the probative value of the journal entries was not substantially outweighed by the danger of unfair prejudice on the ground of motive – where the journal entries were highly probative as circumstantial evidence of appellant's motive to commit the alleged offenses; however, the military judge did abuse his discretion when he ruled that the probative value of the journal entries was not substantially outweighed by the danger of unfair prejudice on the ground of intent – where the journal had very limited probative value in terms of proving appellant's intent for the alleged penetrative acts

Core Criminal Law Subjects: Evidence: Intent

1. to the extent that United States v. Morrison, 52 MJ 117 (CAAF 1999), may be viewed as standing for the proposition that (a) intent is not "in issue" in those sexual assault cases where the underlying conduct, standing alone, is overtly sexual in nature, and (b) under such circumstances "intent evidence" automatically fails to survive a MRE 403 analysis or to meet the second prong of the three prong MRE 404(b) evidentiary test, that conclusion is not supported by CAAF's other case law; in a series of precedents over the years, CAAF has held that intent is always at issue in a criminal case—even when the defense chooses not to contest it
2. motive evidence is used to demonstrate that the accused committed the criminal acts with which he is charged; intent evidence is used to demonstrate the accused's state of mind when he committed those acts

Core Criminal Law Subjects: Evidence: Motive

1. motive evidence is used to demonstrate that the accused committed the criminal acts with which he is charged; intent evidence is used to demonstrate the accused's state of mind when he committed those acts

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. MRE 404(b) does not require the government to provide notice that it seeks admission of uncharged misconduct evidence on the timing imposed by a military judge's scheduling order; rather, the rule simply states that the government must provide the defense with reasonable notice of the general nature of any such evidence before trial so the accused has a fair opportunity to meet it
2. in this case, consistent with the requirements of MRE 404(b), the government provided the defense with reasonable notice of the uncharged misconduct evidence it sought to introduce during the court-martial where (1) approximately six months before trial the government filed a motion to admit appellant's journal containing graphic descriptions of sexual acts between children and adults for the purpose of providing the panel members with direct evidence of appellant's intent to engage in sexual behavior with minors, and even though the government did not cite to MRE 404(b), the defense specifically argued to the military judge that the journal was not admissible under MRE 404(b), thereby implicitly acknowledging that this MRE 404(b) issue was on the table, and during litigation of the motion, the military judge pointed out that the government's reason for seeking admission of the journal implicated MRE 404(b), and (2) the military judge's denial of the government's motion to pre-admit the journal did not vitiate the notice provided to the defense but rather postponed a ruling on admissibility based on whether the government could eventually lay a proper foundation later at trial, MRE 404(b)'s notice requirement does not require a military judge to rule on the government's motion before trial; the court may reserve its ruling on the admissibility of the evidence until trial, when a proper foundation could possibly be laid by the government
3. MRE 404(b)(1)-(2) provides that evidence of a crime, wrong, or other act may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
4. if a military judge determines that the proffered uncharged misconduct evidence is properly admissible under MRE 404(b), he or she then must conduct a MRE 403 balancing test and exclude this otherwise admissible evidence if its probative value is substantially outweighed by a danger of unfair prejudice; this balancing test serves as a means of guarding against the general risk that members will treat evidence of uncharged acts as character evidence and use it to infer that an accused has acted in character, and thus convict
5. military judges abuse their discretion in admitting MRE 404(b) uncharged misconduct evidence (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record; (2) if they use incorrect legal principles; or (3) if their application of the correct legal principles to the facts is clearly unreasonable; the abuse of discretion standard of review recognizes that a judge has a wide range of choices and will not be reversed so long as the decision remains within that range
6. an appellate court conducts its assessment of the military judge's decision to admit uncharged misconduct evidence under MRE 404(b) using the three-part test: (1) does the evidence reasonably support a finding that appellant committed a specific act; (2) does evidence of this act make a fact of consequence more or less probable; and (3) is the probative value of the evidence of this act substantially outweighed by the danger of unfair prejudice; the second prong mirrors the relevance concerns reflected under MRE 401 and MRE 402, while the third prong reflects the concerns ordinarily handled under MRE 403
7. if the admitted MRE 404(b) uncharged misconduct evidence fails to meet any of the factors laid out in the three prong test, the military judge will have erred, and an appellate court must then assess the prejudice, if any, resulting from that error; prejudice from erroneous evidentiary rulings is reviewed de novo; and for nonconstitutional evidentiary errors, the government has the burden of demonstrating that the error did not have a substantial influence on the findings
8. where a military judge provides a detailed written analysis with respect to the admission of MRE 404(b) uncharged misconduct evidence, the military judge's ruling is entitled to full deference by an appellate court under the abuse of discretion standard
9. the standard required to meet the first prong (whether the evidence reasonably supports that the appellant committed the acts at issue) of the three prong MRE 404(b) uncharged evidentiary test is low
10. in this case, the military judge properly determined that the evidence reasonably supported a finding that appellant wrote the MRE 404(b) uncharged misconduct journal entries where the journal was found in appellant's bedroom and appellant admitted that the journal belonged to him and was written by him
11. in this case, where appellant was charged with sexual offenses involving two young girls, the military judge did not abuse his discretion when he ruled that appellant's journal—which contained graphic descriptions of sexual acts between children and adults—was admissible under MRE 404(b) as proof of motive and intent regarding the charged offenses where the journal was semen-stained, found by the marital bed, and contained stories written by appellant that shared similarities with appellant's alleged misconduct
12. when conducting an MRE 404(b) uncharged misconduct evidentiary analysis, a military judge must always be on guard against the wolf of propensity that comes dressed in the sheep's clothing of motive
13. one of the most basic precepts of American jurisprudence is that an accused must be convicted based on evidence of the crime before the court, not on evidence of a general criminal disposition
14. prong two of the three part MRE uncharged misconduct evidentiary test presents a binary question: does MRE 404(b) evidence make a fact of consequence more probable; if the answer is no, the evidence is inadmissible under MRE 404(b); if, however, the answer is yes, then and only then an appellate court move on to prong three of the three part test to assess the probative value and prejudicial effect of that evidence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if the admitted MRE 404(b) uncharged misconduct evidence fails to meet any of the factors laid out in the three prong test, the military judge will have erred, and an appellate court must then assess the prejudice, if any, resulting from that error; prejudice from erroneous evidentiary rulings is reviewed de novo; and for nonconstitutional evidentiary errors, the government has the burden of demonstrating that the error did not have a substantial influence on the findings
2. in this case, the improper admitted uncharged misconduct intent evidence did not have a substantial influence on the findings or sentence where the military judge conducted an in-depth analysis of the issues, made no clearly erroneous factual findings, was not influenced by an erroneous view of the law, did not abuse his discretion when he determined that the prejudicial effect of the motive evidence did not outweigh its probative value, and gave the panel members a sufficient limiting instruction; any prejudicial impact based on the nature of the intent evidence was diminished by the fact that the same conduct was already before the court members for other, proper purposes

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

1. on appeal, it then is the proper role of an appellate court to focus on the government's compliance with the provisions of the applicable MREs, not a military judge's scheduling order
2. when the defense challenges on appeal a military judge's decision to admit MRE 404(b) uncharged misconduct evidence at trial, an appellate court reviews the military judge's evidentiary ruling for an abuse of discretion; and military judges abuse their discretion (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record; (2) if they use incorrect legal principles; or (3) if their application of the correct legal principles to the facts is clearly unreasonable; the abuse of discretion standard of review recognizes that a judge has a wide range of choices and will not be reversed so long as the decision remains within that range
3. an appellate court conducts its assessment of the military judge's decision to admit uncharged misconduct evidence under MRE 404(b) using the three-part test: (1) does the evidence reasonably support a finding that appellant committed a specific act; (2) does evidence of this act make a fact of consequence more or less probable; and (3) is the probative value of the evidence of this act substantially outweighed by the danger of unfair prejudice; the second prong mirrors the relevance concerns reflected under MRE 401 and MRE 402, while the third prong reflects the concerns ordinarily handled under MRE 403
4. if the admitted MRE 404(b) uncharged misconduct evidence fails to meet any of the factors laid out in the three prong test, the military judge will have erred, and an appellate court must then assess the prejudice, if any, resulting from that error; prejudice from erroneous evidentiary rulings is reviewed de novo; and for nonconstitutional evidentiary errors, the government has the burden of demonstrating that the error did not have a substantial influence on the findings
5. where a military judge provides a detailed written analysis with respect to the admission of MRE 404(b) uncharged misconduct evidence, the military judge's ruling is entitled to full deference by an appellate court under the abuse of discretion standard
6. the standard required to meet the first prong (whether the evidence reasonably supports that the appellant committed the acts at issue) of the three prong MRE 404(b) uncharged evidentiary test is low
7. prong two of the three part MRE uncharged misconduct evidentiary test presents a binary question: does MRE 404(b) evidence make a fact of consequence more probable; if the answer is no, the evidence is inadmissible under MRE 404(b); if, however, the answer is yes, then and only then an appellate court move on to prong three of the three part test to assess the probative value and prejudicial effect of that evidence
8. an appellate court must exercise great restraint when it comes to concluding that a military judge abused his or her discretion in the course of balancing the probative value and prejudicial effect of a piece of evidence

Trial Stages: Appeals: Waiver

1. in this case, appellant waived his appellate challenge concerning the adequacy of the military judge's limiting instruction where trial defense counsel expressed no similar concerns during the court-martial and acquiesced in the language of the instruction when it was proposed and given