Uncharged misconduct: the edge is never dull

Introduction

The Court of Appeals for the Armed Forces (CAAF), during the last few terms, has taken the opportunity to closely scrutinize the admission of evidence under Military Rule of Evidence (MRE) 404(b). (1) Traditionally the darling of every trial counsel, MRE 404(b) provides for the admission of evidence of other crimes, wrongs, or acts (uncharged acts) as long as the evidence is admitted for some purpose other than to prove propensity. (2) Until recently, it seemed that counsel were able to take advantage of MRE 404(b) by simply performing a talismanic chant involving any one of the noncharacter purposes provided under the rule. (3) The CAAF's crackdown on the admission of uncharged misconduct at courts-martial coincides with the opening of the propensity flood gates in cases involving sexual assault and child molestation under MRE 413 and 414. (4) This article discusses five cases of significance from the 2006 term. Three of the cases deal with the admission of uncharged misconduct under MRE 404(b), and the other two discuss the ongoing expansion and clarification of MRE 413 and 414.

Uncharged Misconduct and the Reynolds Three-Prong-Test

Military Rule of Evidence 404(b) begins by stating "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." (5) The prohibition is a reflection of common sense. Propensity evidence is not excluded because it lacks relevance, but because it is too relevant in the minds of panel members. (6) In everyday associations, we judge others based upon their actions. Past actions of a person are generally considered to be a good indicator of their future conduct. This common sense approach to judging the character of a person does not change for a panel member just because they are now part of a court-martial. However, a person does not always act in conformity with their past actions. As such, admission of this evidence in a court-martial may lead to a wrong outcome. Additionally, this type of propensity evidence almost always caries a risk of unfair prejudice since the panel member may give undue weight to it. Military Rule of Evidence 404(b) seeks to avoid these dangers, especially on behalf of an accused, (7) by repeating the propensity prohibition of MRE 404(a). (8)

Despite the general prohibition, MRE 404(b) does allow for the admission of uncharged misconduct as a means to prove the accused's knowledge, intent, plan, preparation, opportunity, motive, identity, or absence of mistake. (9) The examples provided under MRE 404(b), however, are not intended to be an exhaustive list. (10) Instead, it is important to understand that as long as the proponent can show that the evidence is being offered for some purpose "other than to demonstrate the accused's predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses" the prohibition on the uncharged acts will not apply. (11)

To determine whether the proponent is truly offering the uncharged acts for a proper purpose, military courts use the three-part test announced by United States v. Reynolds. (12) The first prong of the Reynolds test asks whether the evidence reasonably supports a determination by the factfinder that the accused committed the prior crimes, wrongs, or acts. (13) This question is one of conditional relevancy. Such questions are governed by MRE 104(b). (14) Under MRE 104(b), the military judge neither weighs credibility nor makes a finding that the government has proven the conditional fact by a preponderance of the evidence. Instead, the court simply examines all the evidence in the case and decides whether the panel members could reasonably find the conditional fact. (15) The second prong asks whether the evidence makes a fact of consequence in the case more or less probable. (16) This prong is a standard question of logical relevancy under MRE 401. (17) Under this part of the Reynolds test, the court should examine what inferences and conclusions can be drawn from the evidence. If the inference intended includes the accused's character as a necessary link, the uncharged act should be excluded. The final prong of the Reynolds test calls for balancing under MRE 403. (18) Here, the court asks whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. (19)

Although the Reynolds test dates back to 1989, it was not until relatively recently that it became a hurdle for the government. (20) Starting in 2003, the CAAF began to focus more intensely upon the admission of uncharged acts under MRE 404(b). (21) The 2006 term of the court continues this trend. The CAAF decided two cases during this term concerning the admission of uncharged misconduct. (22) In both, the CAAF found error.

United States v. Barnett (23)

In the first, United States v. Barnett, the CAAF held that the military judge abused his discretion by admitting evidence of uncharged misconduct involving an incident of previous sexual misconduct. (24) Sergeant (SGT) Ronald Barnett Jr. was an instructor at Aberdeen Proving Ground (APG), Maryland. (25) The charges in his case stemmed from alleged incidents of unwanted physical and verbal advances by him toward four female Army trainees at APG. (26) At trial, SGT Barnett proceeded on a theory that the physical interactions between him and the four trainees were consensual. (27) During pretrial motions, the government sought to introduce the testimony of RB, a former Marine Lance Corporal, as well as a discrimination/sexual harassment incident report detailing the investigation of RB's allegations and the actions taken against SGT Barnett as a result. (28) The government offered both pieces of evidence under MRE 404(b) to show intent (29) and plan, (30) and to rebut appellant's mistake of fact defense. (31) The defense objected to the introduction of the evidence on multiple grounds. (32) After considering the perspective of both sides, the military judge overruled the defense objection as to the testimony of RB. (33) Although the military judge admitted the testimony of RB under MRE 404(b) to rebut SGT Barnett's claim that the four trainees consented to his advances, he did rule that the sexual harassment report was not admissible because it was cumulative and unfairly prejudicial. (34)