MRE 413 and 414: Evidence of similar crimes in sex cases

Rules 413 and 414 can be considered together. “As Rules 413 and 414 are essentially the same in substance, the analysis for proper admission of evidence under either should be the same.” United States v. Dewrell, 55 M.J. 131 (C.A.A.F. 2001).

Generally. The rules were written to overcome perceived restrictive aspects
of Rules 404(a) and (b). Rules 413 and 414 reject the traditional prohibitions on propensity evidence.

Threshold Requirements.

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

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

In addition, the trial judge must conduct an M.R.E. 403 balancing test. United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000).

The factors the judge should consider include, but are not limited to:

• strength of proof of the prior act;
• probative weight of the evidence;
• potential for less prejudicial evidence;
• time needed for proof of the prior acts;
• distraction of the fact-finder;
• frequency of the acts;
• presence or lack of intervening circumstances;
• the relationship between the parties;
• temporal proximity; and
• similarity of the uncharged and charged misconduct. United States v. Bailey, 55 M.J. 38 (C.A.A.F. 2001).

Prior acquittal.

United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013). An incident for which the accused has been previously acquitted can be admitted under M.R.E. 413, but the military judge’s M.R.E. 403 balancing test must fully consider the exculpatory evidence and the fact that the accused has been acquitted. In a case involving the alleged abusive sexual contact of a Marine while he was sleeping, the government offered evidence of a sexual assault against different Marine while she was sleeping, of which the accused had been acquitted at a previous court-martial. At the previous court-martial, the two government eyewitnesses testified that the assault occurred between 0230 hours and 0300 hours. However, the defense presented strong alibi evidence; the accused had been taken into military police custody for DUI at 0158 hours and was not released until 0326 hours. Under those circumstances, “the military judge’s failure to address or reconcile Appellant’s alibi evidence or give due weight to Appellant’s acquittal undermined his M.R.E. 403 balancing analysis such that the decision to admit the evidence was an abuse of discretion.” Id. at 182.

United States v. Bridges, 74 M.J. 779 (A. Ct. Crim. App. 2015). Although a prior acquittal does not bar admission of M.R.E. 413 evidence, the military judge should carefully instruct the panel about the acquittal and “the necessity to conscientiously limit consideration of that evidence accordingly.” Id. at 781.

Use of evidence of another charged offense.

Evidence of one charged offense cannot be used as propensity evidence, under M.R.E. 413 or M.R.E. 414, to prove any other charged offense. United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). See also United States v. Prasad, __ M.J. ___, 2020 CAAF LEXIS 280 (C.A.A.F. 2020).

Be aware that, during the trial on the merits for the contested charges in a mixed plea case, the government can offer evidence of a sexual offense or offense of child molestation to which the accused has pled guilty, in order to show propensity to prove another charged sexual offense or offense of child molestation. Hills, 75 M.J. at 356.

For a discussion of Hills’ holding that prohibits the use of evidence of a charged offense as MRE 413 evidence to prove another charged offense, see DCAP Sends 10-11, CAAF Does Not Allow Charged Offenses as MRE 413 Evidence (June 29, 2016).

After ACCA distinguished several cases to try to limit the effect of Hills, CAAF clarified the broad scope of Hills. CAAF made clear that evidence of a charged and contested offense cannot be used as M.R.E. 413 propensity evidence for other charged conduct in the same case, regardless of whether it is a members or judge-alone trial, the number of alleged victims, or whether the events are connected. United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

Be wary of the tactic to use evidence of a charged sexual assault offense as proof of other charged sexual assault offenses under M.R.E. 404(b) after Hills and Hukill. See United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019). In Hyppolite, the government used the charged offenses to prove a common plan or scheme. See Judge Ohlson’s dissent to see how to unmask the common plan or scheme gambit.

Improper use of providence inquiry in M.R.E. 414 ruling. United States v. Davis, 65 M.J. 766 (A. Ct. Crim. App. 2007). The accused pled guilty to a specification of indecent acts with a child and not guilty to two other specifications of indecent acts with a child. During the contested portion of the trial, the government called the victim of the specification to which the accused pled guilty as Rule 414 evidence to prove the contested indecent acts specifications.

The defense objected. The judge’s findings of fact on the motion included statements made by the accused during the providence inquiry. The court held that a military judge cannot consider statements made during the providence inquiry for such evidentiary rulings. The accused’s statements during the providence inquiry can only be used to determine the providence of his pleas and to determine an appropriate sentence. The waiver of the accused’s privilege against self-incrimination is limited to those two purposes.

Defending Against M.R.E. 413 and M.R.E. 414 Evidence.

Lack of disclosure. The prosecution must disclose its intent to offer M.R.E. 413 or 414 evidence, regardless of a defense request for disclosure. Compare with Rule 404(b), where notice only has to be given upon request.

Disclosure must include witness statements or a summary of the expected testimony. M.R.E. 413(b); M.R.E. 414(b).

The disclosure is required no later than 5 days prior to entry of pleas, unless the military judge allows it later for good cause. M.R.E. 413(b); M.R.E. 414(b).

The accused is not charged with a “sexual offense” or act of “child molestation.” Analyze the specifications carefully. “Sexual offense” and “child molestation” are defined below. You must make sure the offense charged fits within the definition of sexual offense or child molestation.

The definitions.

413(d) Definition. As used in this rule, “sexual offense” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal or state law (as “state” is defined in 18 U.S.C. § 513), involving:

As you research cases, be aware that in 2013 the President amended M.R.E. 413 and M.R.E. 414 to make them align more with the Federal Rules of Evidence. M.C.M. (2016), M.R.E. 413 analysis and M.R.E. 414 analysis, at A22-43. These amendments made the definitions of “sexual offense” and “child molestation” much broader.

The other act is not a “sexual offense” or offense of “child molestation.”

You must carefully work through the above definitions of “sexual offense” and “child molestation.”

United States v. Ediger, 68 M.J. 243 (C.A.A.F. 2010). The accused was charged with sexually assaulting his step-daughter. The government offered testimony by the daughter of a former girlfriend of the accused under Rule 414. Among the many things the former girlfriend’s daughter said the accused did was make a statement after the daughter walked into her mother’s bedroom to find her mother having sex with the accused. The statement, made shortly after the intrusion, was, “if [you] wanted to see what was going on [you] could be a part of it.” The court punted by assuming error and then finding the assumed error harmless.

United States v. Fetrow, 76 M.J. 181 (C.A.A.F. 2017). The accused was charged with several offenses of child molestation against his two stepdaughters. The government intended to offer, under MRE 414, his biological daughter’s testimony that he had sex with a woman in her sight, touched her upper leg in a seductive manner, and exposed his penis to her. The military judge denied the accused’s motion in limine to exclude this evidence, because each of these incidents were “a qualifying offense of child molestation . . . in violation of Article 120 and 120b.” In its opinion, CAAF answered two questions about timing: the uncharged conduct has to have been against the law at the time it occurred; and it must be included in the definition of “child molestation” in the version of MRE 414 at the time of trial. Because the President had not added Article 120b to the definition of child molestation by the time of trial, the touching of the upper leg was within one of the categories in MRE 414 (d)(2) at the time of trial, but the other two incidents were not. Based on the powerful nature of that propensity evidence, CAAF concluded that the military judge’s error in admitting that evidence was not harmless. See DCAP Sends 11-8, Timing Is Everything for Other Offenses of Child Molestation under MRE 414 (April 20, 2017).

The prior act is not relevant, because it does not show a propensity.

Hypothetical case. The accused is charged with sexual assault by having sexual intercourse with a woman who was incapable of consenting at the time of the intercourse. The government wants to offer a prior Article 15 for dereliction of duty for exceeding the scope of practice. During a prior assignment, the accused was an LPN who worked in the OB/GYN clinic. He conducted a digital examination of the cervix of a pregnant woman who came to the hospital because of complications with the pregnancy. Only RNs and doctors are authorized to do digital examinations. Based on training attended by both RNs and LPNs, the accused believed this exam was within the scope of his practice. The trial judge did not allow the Rule 413 evidence, first of all, because the Article 15 was not a proper form of the evidence. Also, a scope of practice violation and the accused’s mistake of fact defense would create a trial-within- a-trial, and, even if proven, the dissimilarity between the events prevented the prior act from having any probative value.

The prior act does not survive the M.R.E. 403 balancing test.

United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005). The accused was charged with forcible sodomy, but pled to consensual sodomy. To prove the greater offense, the government offered evidence that the accused, at age 13, convinced a six-year-old boy to allow the accused to suck the boy’s penis and then convinced the boy to suck the accused’s penis. The boy had initially said “no” to sexual contact. The trial judge allowed the Rule 413 evidence to prove the accused’s propensity to assault sexually vulnerable victims, but the judge did not articulate a balancing of the Wright factors. After conducting its own Rule 403 balancing test, the court found prejudicial error in the admission of the testimony.

Instructions.

The military judge is required to provide appropriate instructions to the panel, when evidence can be used for propensity purposes under M.R.E. 413 or M.R.E. 414. The instruction must inform the court members that: (1) an accused may not be convicted on propensity evidence alone; and (2) M.R.E. 413 or 414 evidence does not relieve the government of the burden to prove every element of every charged offense.

In 2017, after Hills and repeated negative comments by appellate courts, the Trial Judiciary finally changed NOTE 3.2 in Instruction 7-13-1 of the Military Judges’ Benchbook and the M.R.E. 413 and M.R.E. 414 evidence instruction under it.

NOTE 3.2: Sexual offense and child molestation cases – MRE 413 or 414 evidence. In cases in which the accused is charged with a sexual offense or an act of child molestation, MRE 413 and 414 permit the prosecution to offer, and the court to admit, evidence of the accused’s commission of other uncharged sexual offenses or acts of child molestation, on any matter to which relevant. Unlike misconduct evidence that is not within the ambit of MRE 413 or 414, the members may consider this evidence on any matter to which it is relevant, to include the issue of the accused’s propensity or predisposition to commit these types of crimes. The government is required to disclose to the accused the MRE 413 or 414 evidence that is expected to be offered, at least 5 days prior to entry of pleas, or at such later time as the military judge may find for good cause.
In order to admit evidence of other uncharged sexual offenses or acts of child molestation, the military judge must make findings that (1) the accused is charged with a sexual offense/act of child molestation as defined by MRE 413/414; (2) the evidence proffered is evidence of the accused’s commission of another sexual offense/child molestation offense; and (3) the evidence is relevant under MRE 401 and 402. The military judge must also conduct a prejudice analysis under MRE 403. (See, U.S. v. Wright 53 MJ 476 (CAAF 2000) for factors to consider in applying MRE 403 balance test).

In determining whether the proffered evidence of an uncharged act qualifies as an “other sexual offense” or “other offense of child molestation,” the military judge applies a two-part test: (1) whether the conduct constituted a punishable offense under the UCMJ, federal law, or state law when the conduct occurred, and (2) whether the conduct is encompassed within one of the specific categories of “sexual offense” or “child molestation” set forth in the version of MRE 413(d) or 414(d)(2) in effect at the time of trial.

When evidence of the accused’s commission of other uncharged sexual offenses under MRE 413, or of other uncharged offenses of child molestation under MRE 414, is properly admitted prior to findings as an exception to the general rule excluding such evidence, the MJ must give the following appropriately tailored instruction based on the evidence admitted. Evidence of other charged sexual offenses or acts of child molestation is not admissible under MRE 413/414 unless the accused has pled guilty to these other charged offenses.

[Instruction:] You have heard evidence that the accused may have committed (another) (other) (sexual) (child molestation) offenses(s). [The military judge may list/identify the evidence admitted pursuant to MRE 413/414, if appropriate]. The accused is not charged with (this) (these) offense(s). You may consider the evidence of (this) (these) other offense(s) for its bearing on any matter to which it is relevant, to include its tendency, if any, to show the accused’s propensity to engage in (sexual) (child molestation) offenses.

MILITARY RULES OF EVIDENCE 413 & 414

However, evidence of another (sexual) (child molestation) offense, on its own, is not sufficient to prove the accused guilty of a charged offense. You may not convict the accused solely because you believe (he) (she) committed another (sexual) (child molestation) offense or offenses or solely because you believe the accused has a propensity to engage in (sexual) (child molestation) offenses. Bear in mind that the government has the burden to prove that the accused committed each of the elements of each charged offense.

The instructions may still be difficult for court members to understand. It would be permissible, if a court member thinks that the other sexual offense or act of child molestation occurred, for that member to infer that the accused had a propensity to commit that type of offense. The court member could then consider that propensity when determining whether the evidence presented on the charged offense proves beyond a reasonable doubt every element of that charged offense. However, if the trial counsel argues for the court members to use M.R.E 413/414 evidence improperly, object.