In order to admit evidence under rules 413 and 414 there are three determinations of threshold that need to be made:
The accused must be charged with an act of sexual assault or child molestation;
The evidence being offered is evidence of the accused committing another act of sexual assault/child molestation; and
The evidence is relevant under rules 401 and 402.
In order to determine the threshold requirements under rules 413 and 414, a military judge must use the balancing test under rule 403 to determine if the value of the evidence does not outweigh possible prejudice, confusion, or misleading the members. There are many factors that the judge can use when determining this balancing test including probative weight of the evidence, strength of proof of a prior act, frequency of the acts and lack of intervening circumstances. See United States v. Wright, 53 M.J. 476, 482 (2000).
United States v. Green, 51 M.J. 835 (Army Ct. Crim. App. 1999). Rule 413 does not automatically “trump” rule 403. The military judge must still do a Rule 403 balancing test.
United States v. Dewrell, 52 M.J. 601 (A.F. Crim. App. 1999). Rule 414 must be applied broadly in a way that favors admission of propensitary evidence.
United States v. Berry, 61 M.J. 91 (2005). While Rule 413 should be interpreted in a way that favors admissibility that does not mean that if the balancing test in Rule 403 is not met that the evidence should be admitted.
United States v. James, 63 M.J. 217 (2006). Rule 413 does not just include offenses that occur prior to the charges act; offenses that occur afterwards may also be admitted.
United States v. Castillo, 140 F.2d 874 (10th Cir. 1998). Federal Rule 414, on which MRE 414 is copied, does not deny the accused of their due process rights and still protects all federally protected rights.
United States v. Henley, 53 M.J. 488 (2000). Evidence under Rules 413/414 may be admitted even if the secondary act is outside its statute of limitations.
United States v. Tamer, 63 M.J. 446 (2006). Evidence under Rules 413/414 may be used to determine sentencing as it “directly relates” to the offense for which the accused has been found guilty and is therefore relevant.
