U.S. v. Greene- Watson, 85 M.J. 340

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when MRE 404(b) evidence of crimes, wrongs, or other acts is offered for a permissible, non-propensity purpose, a military judge 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

Military Justice Personnel: Military Judge: Discretion

1. 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
2. in the case, the military judge did not abuse his discretion in admitting the uncharged conduct under MRE 404(b) to prove appellant's common plan or scheme to control the accused where (1) the government proffered sufficient evidence to reasonably support a finding that the uncharged conduct occurred; (2) the uncharged conduct made a fact of consequence—the wrongfulness of the charged threat—more likely; and (3) the probative value of the uncharged acts was not substantially outweighed by the danger of unfair prejudice

Core Criminal Law Subjects: Evidence: Character

1. propensity evidence is a generally impermissible form of character evidence offered to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character

Core Criminal Law Subjects: Evidence: Other Acts

1. MRE 404(b) provides that evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character; however, this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident; when such MRE 404(b) evidence is offered for a permissible, non-propensity purpose, a military judge 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

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. MRE 404(b) provides that evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character; however, this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident; when such MRE 404(b) evidence is offered for a permissible, non-propensity purpose, a military judge 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
2. in this case, the three part test to admit MRE 404(b) evidence was satisfied where (1) the government proffered sufficient evidence to reasonably support a finding that the uncharged conduct occurred; (2) the uncharged conduct made a fact of consequence—the wrongfulness of the charged threat—more likely; and (3) the probative value of the uncharged acts was not substantially outweighed by the danger of unfair prejudice
3. in this case, the fact that the uncharged acts occurred seventeen months after the charged conduct did not make the acts too remote to prove a fact of consequence under MRE 404(b); the rule does not impose such a temporal limit on MRE 404(b) evidence; evidence of both prior and subsequent uncharged conduct may be properly admitted under MRE 404(b), consistent with prevailing federal practice under Fed. R. Evid. 404(b), on which the military rule is based; it is the fact of the other act that makes it probative, not whether it happened before or after the act now charged
4. uncharged conduct need not be virtually identical to the charged conduct to be admissible as evidence of a common plan or scheme under MRE 404(b)
5. when a military judge does not articulate the reasoning for his determination that the probative value of the uncharged acts sought to be admitted under MRE 404(b) was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the members, considerations of undue delay, waste of time, or needless presentation of cumulative evidence, his decision is entitled to less deference than if he had articulated his reasoning
6. in this case, even if the military judge erred in admitted uncharged misconduct evidence under MRE 404(b), the error did not have a substantial influence on the findings where even without the uncharged conduct the government's case was strong and where the materiality and quality of the evidence favored a finding of harmlessness

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court reviews a military judge's decision to admit MRE 404(b) evidence under a three-part test: (1) does the evidence reasonably support a finding that the accused committed a specific act; (2) is a fact of consequence made more or less probable by the existence of this evidence; and (3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice; if the admitted evidence fails to meet any of these factors, the military judge will have erred, and the court must then assess the prejudice, if any, resulting from that error
2. (in determining prejudice arising from nonconstitutional evidentiary errors, an appellate court weighs (1) the strength of the government's case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; and when assessing the materiality and quality of the evidence, the court considers the particular factual circumstances of each case, essentially assessing how much the erroneously admitted evidence may have affected the court-martial))
3. in this case, even if the military judge erred in admitted uncharged misconduct evidence under MRE 404(b), the error did not have a substantial influence on the findings where even without the uncharged conduct the government's case was strong and where the materiality and quality of the evidence favored a finding of harmlessness

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

1. an appellate court reviews a military judge's decision to admit or exclude evidence 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
2. an appellate court reviews a military judge's decision to admit MRE 404(b) evidence under a three-part test: (1) does the evidence reasonably support a finding that the accused committed a specific act; (2) is a fact of consequence made more or less probable by the existence of this evidence; and (3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice; if the admitted evidence fails to meet any of these factors, the military judge will have erred, and the court must then assess the prejudice, if any, resulting from that error
3. in determining prejudice arising from nonconstitutional evidentiary errors, an appellate court weighs (1) the strength of the government's case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; and when assessing the materiality and quality of the evidence, the court considers the particular factual circumstances of each case, essentially assessing how much the erroneously admitted evidence may have affected the court-martial