Military Rules of Evidence (MRE) 413/414

Scope of MRE 413/414 in a Military Sexual Assault Court-Martial

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In order to admit evidence under Military Rules of Evidence 413 or 414, three threshold determinations must be made:

    1. the accused is charged with an offense of sexual assault/child
      molestation;
    2. the evidence proffered is evidence of the accused’s commission of another offense of sexual assault/child molestation; and
    3. the evidence is relevant under Rules 401 and 402. United States v. Berry, 61 M.J. 91 (2005).

Once the evidence meets the threshold requirements of Rule 413 or Rule 414, a military judge must apply the balancing test of Rule 403 under which the testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members. A military judge must consider several nonexclusive factors in performing the required balancing of probative value and prejudicial effect.

These include:

  1. strength of proof of the prior act–conviction versus gossip;
  2. probative weight of the evidence;
  3. potential for less prejudicial evidence;
  4. distraction of the fact finder;
  5. time needed for proof of prior conduct;
  6. temporal proximity;
  7. frequency of the acts;
  8. presence or lack of intervening circumstances;
  9. and relationship between the parties. United States v. Wright, 53 M.J. 476, 482

United States v. Green, 51 M.J. 835 (A. Ct. Crim. App. 1999). Military judge erroneously believed Rule 413 “trumped” Rule 403, and that the Rule 403 balancing test did not need to be applied. The court stated that a military judge is required to conduct a Rule 403 balancing test prior to admitting evidence under either Rules 413 or 414.

United States v. Wright, 53 M.J. 476 (2000). The accused pled guilty to indecent assault of P in October of 1996. He pled not guilty, but was convicted of indecent assault of D in April of 1996, and housebreaking of P’s room in October of 1996. The government admitted the offense that he pled guilty to under Rule 413 to prove propensity to commit indecent assault against D. The defense claimed that Rule 413 was unconstitutional. The CAAF rejected this argument, following the rationale of the Federal Circuit Courts on both due process and equal protection grounds.

United States v. Henley, 53 M.J. 488 (2000). Accused convicted of committing oral sodomy on his natural son and daughter. At trial, the government introduced incidents outside the statute of limitations under both Rules 414 and 404(b). The trial court admitted if for both purposes. The Air Force Court admitted it under Rule 404(b) and said that they did not need to address the Rule 414 issue. The CAAF agreed with the Air Force Court’s approach and affirmed. The CAAF did go on to say, in light of their opinion in Wright, that Rule 414 is constitutional and this evidence would have been admissible under that rule as well.

United States v. Bailey, 55 M.J. 238 (2001). Appellant was convicted at a general court-martial of rape, forcible sodomy, aggravated assault, and other offenses. He argued on appeal that the military judge erred in admitting, over defense objection, evidence of prior acts of forcible sodomy through the testimony of the appellant’s former wife and former girlfriend when the acts in question occurred up to a decade in time prior to the charged offenses. The military judge allowed the evidence under Rule 413, after performing a balancing test under Rule 403. The military judge also provided a limiting instruction to the panel concerning this evidence. The CAAF held that the balancing test conducted by the military judge, in conjunction with his limiting instruction, met the requirements for an appropriate balancing test outlined in United States v. Wright, even though the trial judge had not applied all of the nonexclusive factors outlined in the Wright decision. See also United States v. Dewrell, 55 M.J. 131 (2001).

United States v. Berry, 61 M.J. 91 (2005). Appellant was convicted of forcible sodomy involving another male soldier. At trial, the appellant’s defense to the charge of forcible sodomy was that the alleged victim had consented to the oral sex incident. To counter this defense, the Government sought to introduce testimony from LS, who testified he had been the victim of a similar act by the appellant eight years earlier. The military judge found that the testimony was relevant and admissible under Rule 413. The ruling was affirmed by ACCA in an unpublished opinion. The CAAF found that although the testimony was relevant, the military judge erred in admitting it because he failed to do an adequate balancing test under Rule 403 and that under a proper Rule 403 balancing test the testimony was inadmissible and prejudicial.

No Temporal Limit. United States v. James, 63 M.J. 217 (2006). The CAAF concluded that the clear language of Rule 414 does not limit the admission of other incidents of child molestation to those occurring before the charged offenses. This reading has equal application to Rule 413. Therefore, the fact that propensity evidence under Rule 413/414 occurs after the date of the charged offenses is not a barrier to its admission in the accused’s court-martial.

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No requirement that the acts admitted under MRE 413/414 be the exact same acts of molestation as the charged offenses. United States v. Ediger, 68 M.J. 243 (C.A.A.F. 2010).

ARMY MILITARY JUDGES, AFTER ADMITTING EVIDENCE UNDER RULE 413, HAVE A LIMITED SUA SPONTE DUTY TO INFORM MEMBERS OF THE FOLLOWING:

The accused is not charged with this other sexual assault offense; the Rule 413 evidence should have no bearing on their deliberations unless they determine the other offense occurred; if they make that determination, they may consider the evidence for its bearing on any matter to which it is relevant in relation to the sexual assault offenses charged; the Rule 413 evidence has no bearing on any other offense charged; they may not convict the accused solely because they may believe the accused committed other sexual assault offenses or has a propensity or predisposition to commit sexual assault offenses; they may not use Rule 413 evidence as substitute evidence to support findings of guilty or to overcome a failure of proof in the government’s case, if any; each offense must stand on its own and they must keep the evidence of each offense separate; and the burden is on the prosecution to prove the accused’s guilt beyond a reasonable doubt as to each and every element of the offenses charged. United States v. Dacosta, 63 M.J. 575 (Army Ct. Crim. App. 2006).

United States v. Schroder, 65 M.J. 49 (2007). This case highlights the need for a Dacosta-esque instruction. The military judge properly admitted the uncharged misconduct under M.R.E. 414, but failed to adequately instruct the members on its proper uses. The failure to properly instruct the members was harmless error. The CAAF determined that the military judge’s instruction fell short of what was required when M.R.E. 414 evidence is admitted at trial. The CAAF noted that the military judge correctly instructed the members on the government’s burden, but improperly qualified the statement by informing the members that they may “however . . . consider the similarities in the testimony” of the three alleged victims concerning the alleged rape and indecent acts. The CAAF believed the instruction was “susceptible to unconstitutional interpretation.” Namely that the similarities between the charged and uncharged misconduct could, standing alone, convict the appellant. The CAAF pointed to the Military Judges Benchbook, instruction 7-13-1, and also favorably cited the Dacosta opinion and its suggested instruction. While not mandating the Dacosta instruction, the CAAF stated the members “must be instructed that the introduction of such propensity evidence [under M.R.E. 414] does not relieve the government of its burden of proving every element of every offense charged. Moreover, the fact finder may not convict on the basis of propensity evidence alone.” In this case, the CAAF was convinced beyond reasonable doubt that the error did not contribute to the appellant’s conviction. As such, the court determined the error was harmless.

United States v. Bare, 65 M.J. 35 (2007). The appellant, a thirty-four-year-old E-5 with thirteen years of active service, was charged with sexually molesting his natural daughter, RB. At the time of the trial, RB was fourteen years old. However, the sodomy specification covered a period when RB was under the age of twelve. At trial, the government sought to admit the testimony of KB, the appellant’s sister regarding his sexual molestation of her when she was between the ages of seven and eleven and the appellant was between the ages of fifteen and nineteen. The Government also sought to admit the testimony of TA, the appellant’s stepdaughter. TA alleged the appellant had sexually molested her when she was about eleven years old. The government offered KB and TA’s testimony under M.R.E. 414. The appellant did not challenge the admissibility of TA’s testimony (since this occurred when he was an adult). However, the appellant did argue that the military judge erred in conducting the required M.R.E. 403 analysis.

The appellant analogized his case to that of United States v. Berry, 61 M.J. 91 (2005) and United States v. McDonald, 59 M.J. 426 (2004). In both Berry and McDonald, the CAAF concluded the military judge erred in admitting evidence of uncharged adolescent sexual misconduct to prove the charged adult sexual misconduct. The appellant argued that, as in Berry and McDonald, the military judge failed to give adequate consideration to his young age at the time of the uncharged misconduct when conducting his M.R.E. 403 analysis. The CAAF considered, whether, in light of Berry and McDonald, the military judge error in admitting uncharged sexual acts between the appellant, when he was an adolescent, and his sister. The CAAF stated that a military judge must take care to meaningfully analyze the different phases of an accused’s development when projecting on a child the mens rea of an adult or extrapolating an adult mens rea from the acts of a child. The CAAF cautioned military judges to not treat the different phases of the accused’s development as being unaffected by time, experience, and maturity. In this case, however, the military judge did not abuse his discretion in admitting evidence of uncharged, but similar molestation.

The CAAF was persuaded that the appellant’s facts were distinguishable from those in Berry. Unlike Berry, the military judge conducted a meaningful MRE 403 balancing analysis which considered factors weighing both against and in favor of admission of the evidence; the misconduct occurred while the accused was an adult as well as an adolescent; the appellant was charged with an offense of child molestation (Berry was not); and the misconduct occurred regularly for a period of about two or three years. All of these factors, according to the CAAF, made KB’s testimony more probative and less unfairly prejudicial than the testimony admitted in Berry. As such, the military judge did not abuse his discretion in admitting the evidence under M.R.E. 414.

United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010). Over defense objection, the government admitted file names suggestive of homosexual acts with preteen and teenage boys under MRE 414 (and alternatively under MRE 404(b) against the accused who was charged with sodomizing a fourteen-year-old male. The CAAF held that the file names were not proper propensity evidence under MRE 414, nor were they admissible for any purpose under MRE 404(b).

In order to be admissible under MRE 414, the proffered propensity evidence must be evidence of the accused’s commission of another offense of child molestation as defined by the rule. The military judge admitted the evidence under MRE 414(d)(5) and alternatively under section (d)(2). MRE 414(d)(5) allows evidence of an offense of child molestation that constitutes a crime under any Federal law that prohibits “deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child.” MRE 414(d)(2) allows evidence of “any sexually explicit conduct with children” proscribed by the UCMJ, Federal, or State law. The court held that MRE 414(d)(5) could not include possession of just the file names suggestive of child pornography because, in the absence of the actual files, it was not possible to determine if the conduct depicted in the media fell within the parameters of MRE 414(d)(5). But see United States v. Conrady, 69 M.J. 714 (A. Ct. Crim. App. 2011) (holding that images clearly depicting a child in pain where the appellant saved them to his personal computer and admitted receiving sexual gratification from the images qualified under MRE 414(d)(5)).

The court further held that MRE 414(d)(2) did not apply because it requires that the qualifying “sexually explicit conduct” proscribed by Federal law be “with children.” According to the court, under military law, “with children” means in the physical presence of children. United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008).2 As such, possession or attempted possession of child pornography would not qualify under MRE 414(d)(2) because the appellant himself was not physically present with the children depicted in the child pornography.

The court also held that the unassociated file names were not admissible under MRE 404(b) because the military judge failed to make a proper MRE 404(b) analysis. The court noted that the military judge specifically referenced “propensity” in making his MRE 404(b) determination. Propensity may be a relevant basis under MRE 413 and 414, but it is not a proper basis for admitting evidence under MRE 404(b). Accordingly, the military judged erred in alternatively admitting the unassociated file names under MRE 404(b). Additionally, the court independently determined that the probative value of the proffered evidence did not outweigh the danger of unfair prejudice. In Miller, CAAF held that an accused cannot be convicted of with indecent liberties with a child under Article 134 UCMJ, when the alleged indecent conduct takes place over a webcam rather than in the actual presence of the child. United States v. Miller, 67 M.J. 87, 90-91 (C.A.A.F. 2008).

Finally, the court held that admitting the unassociated file names was prejudicial and therefore set aside appellant’s conviction for sodomy and indecent acts. The court also noted that the indecent acts charge was not subject to rehearing because the finding to that charge was reached as a lesser included offense of forcible sodomy under Article 125, UCMJ. Pursuant to United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), indecent acts with a child is no longer a lesser included offense of sodomy.

United States v. Conrady, 69 M.J. 714 (A.C.C.A. 2011). The Appellant had a previous court-martial conviction for receiving child pornography through interstate commerce in violation Article 134, U.C.M.J. (charged as 18 U.S.C. §2252A(a)(2)(B)). The government sought to admit several items from the Appellant’s prior court-martial, two of which were images of child pornography. The government argued that the images qualified under MRE 414 as a prior crime of child molestation under MRE 414(d)(1) and (2). PE 14 depicted a child, obviously in pain, engaged in sexual activity with two adults, while PE 18 contained an image of child pornography but no element of infliction of pain or injury.

While the military judge did error in admitting the PE 14 under MRE 414(d)(1) and (2), the error was harmless because PE 14 was admissible under MRE 414(d)(5). Possession, receipt or transport of an image of child pornography alone does not meet the definition of a sexual act or sexual conduct with children because it is not done in the presence of a child, which is required under MRE 414(d)(1) and (2). United States v. Yammine, 69 M.J. 70, 76 (C.A.A.F. 2010). However, this court’s prior =decision in Yammine did not rule out the possibility that child pornography could be a qualifying prior crime under MRE 414 in other circumstances. MRE 414(d)(5) does not refer to engaging in sexual contact and, as such, does not require the presence of a child. Instead, it focuses on “deriving pleasure . . . from the infliction of physical pain on a child,” which the accused here did through receiving and viewing the photograph. PE 18’s admission was err and it was not admissible under another section; however, based on the other evidence admitted, the error was harmless. In order to be admissible under MRE 414 – United States v. Conrady

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