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Closing Arguments Examples: Kick-Ass Closing Arguments Part 1: Closing Argument Template

  • Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time 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.

Unfair Prejudice. Evidence is subject to exclusion if the opposing counsel can successfully convince the military judge that the risk of unfair prejudice substantially outweighs it probative value. Rule 403 is one of the most often cited rules by counsel. The rule is particularly important in the law of evidence since it is a rule that empowers the military judge to exclude probative evidence if it can be said to be unfairly prejudicial.

Standard. In a sense, all evidence that either the government or defense
seeks to introduce is intended to prejudice the opponent. If it didn’t
prejudice the opponent, one could reasonably question the value of
seeking to admit the evidence. The question under Rule 403 is really one
that addresses how the factfinder will view the evidence. It is only when
a factfinder might react to the proffered evidence in a way (usually
emotional) that is not supposed to be part of the evaluative process that
the reaction is considered unfairly prejudicial. United States v. Owens,
16 M.J. 999 (A.C.M.R. 1983) (describing unfair prejudice as existing “if
the evidence is used for something other than its logical, probative

PROPER PREJUDICE EXAMPLE: SPC Smiffy is charged with assault upon PVT Jones. The government seeks to
introduce evidence from CPT Honest who will testify he heard SPC Smiffy say “the next time I see PVT Jones he is a dead man.” The defense might try to keep the testimony out under a number of justifications, but under Rule 403, although the evidence is prejudicial and a member may use it to determine that SPC Smiffy likely assaulted PVT Jones, this type of prejudice is proper because it comes from the member’s belief that the accused committed the charged offense.

except CPT Honest is going to testify he heard SPC Smiffy say
“the next time I see PVT Jones he is a dead man, because I
belong to the “bare knuckles gang” that encourages members to
beat people up.” Under Rule 403, the defense would have a
much better argument to keep out the portion of the statement
regarding SPC Smiffy’s gang membership. The risk of
admitting the entire statement is that the members may develop a
negative feeling about SPC Smiffy based upon their feelings
about individuals that belong to a gang. Those impressions
would be an example of unfair prejudice since they are unrelated
to the probative value the gang information has with respect to
the charged offense. Instead, they flow from the members’
reactions to information about the accused that would cause
loathing whether or not it was linked to the events of the alleged
offense. The risk of the members believing the accused is a
wretch that deserves punishment no matter what the evidence is
regarding the assault is an example of unfair prejudice under
Rule 403.

Legal Relevance. The probative value of any evidence cannot be
substantially outweighed by any attendant or incidental probative
dangers. Among the factors specifically mentioned in the rule are “the
danger of unfair prejudice, confusion of the issues, or misleading the
members.” To determine whether the risk of unfair prejudice
substantially outweighs the probative value of evidence, the military
judge is required to do some kind of weighing. Although there is not a
clear test for the military judge to follow, some factors the military judge
might consider include:

the strength of the probative value of the evidence (i.e., a high
degree of similarity);

the importance of the fact to be proven;

whether there are alternative means of accomplishing the same
evidentiary goal (consider in connection with defense
concessions to 404(b) uncharged misconduct); and

the ability of the panel to adhere to a limiting instruction.

Berry Factors – United States v. Berry, 61 M.J. 91 (2005). When
conducting a Rule 403 balancing test, a military judge should
consider the following factors: the strength of the proof of the
prior act; the probative weight of the evidence; the potential to
present less prejudicial evidence; the possible distraction of the
factfinder; the time needed to prove the prior conduct; the
temporal proximity of the prior event; the frequency of the acts;
the presence of any intervening circumstances; and the
relationship between the parties.

Rule 403 favors admissibility. A military judge will exclude evidence on
a legal relevance theory only when the probative values is “substantially
outweighed” by the accompanying probative dangers. United States v.
Teeter, 12 M.J. 716 (A.C.M.R. 1981) (stating that striking a balance
between probative value and prejudicial effect is left to the trial judge
and that the balance “should be struck in favor of admission”). The
passive voice suggests that it is the opponent who must persuade that the
prejudicial dangers overcome the probative value. United States v.
Leiker, 37 M.J. 418 (C.M.A. 1993) (cautioning defense counsel that
failure to make a satisfactory offer of proof prohibits an appellate court
from weighing the evidence’s probative value against its possibility for
causing undue delay or waste of time).

Rule 403 codifies judicial discretion. It is the rule by which the legal
relevance is ascertained. Saltzburg, Schinasi & Schleuter state that while
Rule 403 has broad application throughout the Military Rules of
Evidence, “its greatest value may be in resolving Rule 404(b) issues”
because of the low threshold of proof required to establish extrinsic
events. See Editorial Comment, Rule 403, Military Rules of Evidence at
Section 403.03[7], at 4-30 (5th ed. 2003).

Rule 403 and special findings. The military judge should always make
special findings when resolving a Rule 403 objection, even without a
request to do so by counsel. United States v. Bins, 43 M.J. 79 (1995)
(criticizing the military judge for stating that he had performed the
balancing test required by Rule 403, when all he really did was recite the
Rule’s language). Special findings are beneficial for at least two reasons:

Appellate courts will be able to evaluate the criteria and thought
process used by the military judge. This will reduced the
likelihood of reversal for abuse of discretion. United States v.
Hursey, 55 M.J. 34 (2001) (describing that when a military judge
conducts a proper Rule 403 balancing test, the evidence ruling
will not be overturned unless there is a clear abuse of discretion).

Special findings provide counsel with an opportunity to correct
erroneous determinations by the military judge at the trial level,
instead of waiting months or years later to do the same on

Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer

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