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RULES OF EVIDENCE

The Military Rules of Evidence are a collection of rules governing the admissibility of evidence in a court-martial. Over the last few years, they have been under constant revision as the law related to sexual assaults has become political.

There are a couple of areas of the rules that most people facing military charges need to understand. Those rules are related to:

  • Suppressing illegally obtained statements and evidence;
  • Obtaining medical and mental health records related to victims and witnesses;
  • Hearsay;
  • Character evidence;
  • Rules related to showing bias or motive to lie; and,
  • Rules related to preventing the government from introducing allegations of uncharged misconduct.

These are all issues that require counsel experienced with military law and military rules.

One area that defense counsel often forget, is Military Rule of Evidence 404 (b). This is traditionally a rule that permits the prosecutors to introduce evidence of other crimes, wrongs, or acts that are not charged. Inexperienced defense counsel sometimes forget that the defense can use it to introduce evidence of the alleged victim's past misconduct. So called reverse-404 (b) evidence can be powerful.

The rule basically says that evidence of other crimes, wrongs, or acts can be admissible to show things like:

  • Proof of motive;
  • Opportunity;
  • Intent;
  • Preparation;
  • Plan;
  • Knowledge;
  • Identity; or,
  • Absence of mistake or accident.

The defense is not required to give the government notice of such evidence. As noted, this is traditionally a rule used by the government. But it can be a powerful tool for defense counsel.

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    Daniel Conway Partner

    For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...

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  • Gary  Myers Photo
    Gary Myers Partner

    Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...

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  • Brian  Pristera Photo
    Brian Pristera Attorney

    A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...

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    Joseph Galli Attorney

    Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...

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