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