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MILITARY RULE OF EVIDENCE 404 (B)

Mil. R. Evid. 404 (b) is a rule that attempts to place limits on how evidence of other crimes, wrongs, or acts can be used by either party. Traditionally, it is a rule used by the government to introduce evidence related to the accused. However, it is a powerful potential tool for the defense to introduce other crimes, wrongs, or acts related to the alleged victim. The rule states:

"Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

A few points are helpful to understand the rule:

  • The list in the rule is not exhaustive. The test is whether the evidence is offered for some other purpose than to show poor character or a predisposition to commit a crime. US v. Castillo, 29 M.J. 145 (C.M.A. 1989).
  • The rule was intended to be inclusive.
  • Prosecutors frequently attempt to use the rule to elicit statements that may reflect the accused's consciousness of guilt;
  • When the evidence is used to show a motive to commit a crime, the evidence relate to a mental state. Likewise, the actor's mental state must be related to an issue in the case.
  • It is helpful to articulate multiple non character theories for the evidence.
  • Intent, within the context of this rule, was meant to negate or refute any suggestion that the acts in question were an accident. US v. Merriweather, 22 M.J. 657 (A.C.M.R. 1986).

The Reynolds test is a framework created by the military appellate courts for analyzing evidence under this rule. The test requires the military judge to determine:

  1. Whether the evidence reasonably supports a finding by the members that the accused committed prior crimes, wrongs, or acts.
  2. Whether the evidence makes a fact of consequence more or less probable.
  3. Whether the probative value of the evidence is outweighed by the danger of unfair prejudice.

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    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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