MILITARY RULE OF EVIDENCE MRE413
The Impact of MRE 413 on the Accused and the Struggle for a Cohesive Set
of Standards: What’s Not Similar?
On September 20, 1994, during the 20-minutes of floor debate that Congress
gave federal rules of evidence 413 and 414, Senator Bob Dole declared
that the presumption of evidence of similar crimes in sexual assault cases
“is typically relevant and probative, and that its probative value
is not outweighed by any risk of prejudice.” With one fell swoop,
Congress passed Fed. R. Evid. 413 (FRE 413) and dismissed at least 300
years of wisdom in the law of character evidence while by-passing the
Rules Enabling Act – an act that was designed to ensure the passage
of evidentiary rules that improve the fairness and efficiency of trials.
In 1994, an election year, Republicans pressured rules FRE 413 and 414
into the Crime Control Act with the threat of blocking its passage. The
courts were then saddled with the task of applying the new evidentiary
rules without compromising a defendant’s Constitutional rights to
due process.Twelve years later, we now have a substantial body of case
law to analyze how the Courts have interpreted 413 and their struggle
to develop a set of standards that are capable of implementing the legislative
intent while ensuring fair trial results.
This article will address Military Rule of Evidence 413 (MRE 413) and its
impact on the accused. At this point, it should already be clear that
I am opposed to the rule – particularly when applied within the
context of the military justice system. I will try and fairly present
the arguments for the rule.
Where applicable, I will address the federal rules and case law because
the military system has tended to adopt the majority’s reasoning
from the various appellate circuits. Also where applicable, I will discuss
state law and the development of the lustful disposition doctrine.
Ultimately, I recommend that the Courts define the “similar”
language used in the statute as requiring the alleged conduct to include
both factual similarities and a shared
mens rea or intent.
This paper is concerned exclusively with MRE 413 and it presumes conduct
between adults. I do not address child molestation issues, rape shield
laws, or sentencing.
What is MRE 413?
MRE 413 was passed via executive order.The rule allows for the liberal
admissibility of similar crimes in sexual assault cases. Specifically,
the rule dictates that evidence of the accused’s commission of any
offenses of sexual assault
is admissible and may be considered for it bearing on
any matter to which it is relevant. The rule requires the government to provide the
defense at least 5 days notice of their intention to use evidence admissible
under this rule. And the notice must include either the statements of
witnesses or a summary of the substance of any expected testimony.
Generally, an offense of sexual assault means an offense punishable under
the Uniform Code of Military Justice, or a crime under federal or state
law. Of course, sexual offenses punishable under the UCMJ include rape,
sodomy, and indecent assault.
The rule is admittedly specific regarding what types of contact qualify.
Of course, all types of contact must occur without the consent of the
victim. The accused must make contact between any part of his body or
an object he controls and the genitals or anus of another person. The
rule also includes any conduct that is intended to derive sexual pleasure
or gratification from the infliction of death, bodily injury, or physical
pain on another person.
Most problematically, the rule includes attempts or conspiracies to engage
in the previously listed conduct. The rule, however, is silent on the
standard of proof required for the specific intent element for an attempt.
I’ll address this issue later in the paper. The rule continues to
define what constitutes a sexual act.
The Unique Setting of its Application in the Military System
At this point, it’s important to note the distinctions between the
civilian society that FRE 413 was written for and the military society
for which it was adopted. The military environment is dramatically different
from the civilian setting in which FRE 413 was passed. Military citizens
are self-selected by an all-volunteer military. They undergo a rigorous
screening process that eliminates recruits with serious criminal backgrounds.
Each recruit undergoes a training process designed to imbue them with
discipline. The distinctions are important because one of 413’s
underlying assumptions is that a high percentage of sexual offenders are
predisposed to recidivism. Yet, the process of military recruitment could
weed out a high degree of that population of repeat offenders.
Background and Legislative History
The best place to begin a discussion about MRE 413 is with the background
from which the rule was passed. FRE 413 was enacted by Congress on 13
September 1994 in the Violent Crime Control and Law Enforcement Act.The
military version was adopted in MRE 1102 for court-martial use on 6 January
1996 and the 1998 amendment to the Manual for Courts-Martial included
MRE 413 in its current form.
The rule was intended to provide for the more liberal admissibility of
character evidence in criminal cases of sexual assault where there is
evidence that the accused committed a prior act of sexual assault. In
fact, the rule was specifically intended to create an exception to the
FRE 404 (b) prohibition against propensity evidence. The Courts have ensured
that FRE 401 relevancy and 403 prejudice safeguards are applicable. But,
the defense must preserve those issues. Moreover, the rule includes uncharged conduct.
The rules were proposed by Rep. Susan Molinari and were drafted by attorney
David Karp from the Department of Justice. Rep. Molinari had been trying
to get a version of the amendment passed since at least 1990. By 1994,
she was able to write the amendment into the Crime Control Bill. With
her and Sen. Dole threatening to block the bill, they were able to pass
it through with only 20-minutes of floor debate.
How Rules are Generally Passed
A review of how rules of evidence are passed is appropriate at this point
because Congress completely bypassed the traditional procedure. Generally,
the Rules Enabling Act of 1934 delegated almost all rule making authority
to the judiciary. Throughout the last 80 years, the Court has evolved
a Judicial Conference to monitor and advise on the need for changes or
new procedural rules. The Judicial Conference maintains a standing committee
on rules of evidence.
The committee adheres to a seven-step process in recommending new rules
of evidence:
- Initial consideration by the advisory committee;
- Publication and public comment;
- Consideration of public comment and final approval by the committee;
- Approval by the standing committee;
- Judicial Conference approval;
- Supreme Court approval;
- and Congressional review
This is a critical process that ensures that rules are passed that are
both necessary to the administration of justice and tailored produce just results.
Report of the Judicial Conference
The Judicial Conference was highly critical of the new rule and urged Congress
to reconsider its decision on the underlying policy questions. The Conference
was unanimous in its opposition except for one lone dissenting vote from
David Karp in the Department of Justice – he was the rule’s
author. The Conference essentially made 5 substantive findings in opposition
to the rule:
- 404 (b) already allows for similar evidence;
- The rules are not supported by empirical evidence (probably referring to recidivism);
- There is the danger of convicting a defendant for past conduct or for being a bad person;
- There is the danger of a trial with a trial on the uncharged conduct;
- And, the rule suggests mandatory admissibility and could cause conflict with other rules like hearsay;
Motivations for Passing the Rule
In 1994, the rule’s author, David Karp, spoke at a symposium at the
Chicago-Kent College of Law regarding propensity evidence and probability
in sex offense cases. He proposed four major reasons why the rule was
necessary.
First, he reasoned that “it would be quite a coincidence if a person
who just happened to be a chronic rapist was falsely or mistakenly implicated
in the later crime of the same type.”Next, he wrote that individuals
with a combination of aggressive and sexual impulses have a greater propensity
to act on them. Third, he found public interest in admitting this type
of evidence because of the gravity of the danger to the public if a rapist
or child molester remains at large. Finally, he believed that the evidence
will help bolster the credibility of rape victims.
One of the primary justifications for the rule is predicated on the assumption
that recidivism rates for sexual offenders are higher than for other crimes.
The recidivism rate, however, can vary wildly depending on the study and
actuarial methods that are used. Over a long-term analysis of 15-20 years,
the recidivism rate typically never exceeds 40%. And somewhat surprisingly,
incest offenders have the lowest rates of re-offending.
A study in 1998, reported that only 13 % of their subjects committed a
new offense within a 4-5 year follow-up period. Another 1998 study found
a recidivism rate of 52% for sexual abusers and 39% for rapists.The same
author determined that 26% for rapists and 32% for child molesters is
probably a more accurate example.The difficulty in analyzing recidivism
rates, however, is in finding an accurate sample. Moreover, some studies
use charges as the index of recidivism instead of actual convictions.
Yet, the risk of conviction is exceptionally high. The University of Chicago
Jury Project found that jurors became outraged when the heard evidence
of sexual misconduct. Juries would frequently convict even when the defendant
wasn’t charged with a crime that satisfied legal definitions.
Sexism, Racism, and Credibility
Another key purpose of the rule, at least from the feminist perspective,
is the desire to increase the number of successful rape prosecutions.
The presumption of the authors is that rape victims suffer tremendous
credibility issues as witnesses during a trial. Senator Bob Doles said
that, “Alleged consent by a victim is rarely an issue in prosecutions
for other violent crimes – the accused mugger does not claim that
the victim freely handed over his wallet as a gift – but the defendant
in a rape case often contends that the victim engaged in consensual sex
and then falsely accused him.”
Lord Matthew Hale developed the famous jury instruction requiring juries
to consider that rape charges are easily made by alleged victims, the
charges are hard to defend, and the testimony requires special scrutiny.
Yet, as Katherine Baker points out, the credibility concerns underlying
the assumptions of the rule’s proponents are more complex than is
apparent. Additionally, society has a tendency to blame women for rape.
She also suggests that historically, white women accusing black men of
rape have always been believed regardless of the extrinsic circumstances.
She ultimately concludes that a theory to boost victim credibility mistakes
juror disbelief with juror disregard. She cites studies indicating that
juries believe victims; they just don’t blame the men.
The Early Federal Case Law
The leading case in the federal circuits is
US v.
Enjady, 134 F.3d 1427 (1998). In
Enjady, the 10th Circuit found that Rule 413 was constitutional. Interestingly,
Enjady was a Native American. Many of the initial opponents to Rule 413
based their opposition on the belief that the new rules of evidence would
be unfairly prejudicial towards Native Americans.
Enjady claimed that Rule 413 unconstitutionally violated his due process
rights and in his case was unduly prejudicial under the Rule 403 balancing
test. The 10th Circuit, as did many other circuits, expressed serious
concerns regarding the rule’s constitutionality.
Enjady, at 1430.
Enjady argued that the prohibition against propensity evidence is so basic
to our criminal justice system that fit within the narrow class of infractions
that violate due process. Of course, applying the fundamental fairness
test, the court found that a trial is fundamentally fair and propensity
evidence is admissible – particularly in light of the protections
of the rule 403 balancing test.
Enjady is an important case because the courts begin to flesh out the threshold
findings that judges must determine and the military courts relied on
the court’s rationale in the early military cases. We won’t discuss
Enjady’s threshold findings here because CAAF articulates them in the
Wright case below.
The Analysis
The rule requires the judge to make three threshold finding before admitting Mil.R.Evid. 413 evidence. The judge must find:
- that the accused is charged with a sexual offense under Mil. R. Evid. 413 (a);
- the evidence must involve the accused’s commission of another sexual assault offense as defined in the rule, and;
- the evidence must be relevant.
US v. Wright, 53 M.J. 476, 482 (2000); US v. Myers, 51 M.J. 570, 581 (N.M.C.C.A. 1999).
Once the judge makes his threshold finding, he must conduct a Mil. R. Evid.
403 balancing test. He should consider the following inexhaustive list
of factors:
- the strength of proof of the prior act;
- the probative weight of the evidence;
- potential for less prejudicial evidence;
- distraction of fact finder;
- time needed for proof of prior conduct;
- temporal proximity to the charged offense;
- frequency of the acts;
- intervening circumstances and;
- the relationship between the parties.
US v. Bailey, 55 M.J. 38, 41 (2001); Wright, 53 M.J. 476, 482 (2000).
The Military Case Law: The Early Cases
After a little over a decade of Mil. R. Evid. 413 litigation, we now have
at least 19 appellate cases from which to discern standards from.
The 403 Balancing Test is Required
Military appellate courts first addressed the issue US v. Green. The Army
Court of Criminal Appeals had to decide whether trial judges had to apply
the Mil. R. Evid. 403 balancing test to issues of uncharged sexual propensity
evidence. They found that judges did have to apply the balancing test.
In Green, the accused, while intoxicated at 0100 hours, walked an intoxicated
female soldier back to her room from the enlisted club in Korea. Although
not invited, the accused followed her into the room. She lay down on top
of her bed covers fully clothed and the accused laid down on top of her.
She told him that she was tired and to leave her alone. They both then
fell asleep. The accused later woke up and pulled down the female’s
shorts and panties while she was asleep. She said stop and grabbed her
cut-offs. The accused tried to talk to her to get her to have sex with
him. She didn’t say anything, so he put on a condom and had sex with her.
After later learning of the alleged assault, another female Soldier made
sexual assault allegations against Green. She alleged that Green walked
her back to her room, pushed her down, exposed his penis, and placed her
hand on it. After a struggle, he left.
The Court followed key rulings from the 8th and 10th Circuits finding that
constitutional problems with 413 evidence are cured by application of
the balancing test. The case law is now settled that a military judge
must apply the 403 balancing test, but doesn’t have to articulate
his findings on the record.
Spillover Instructions Necessary
Several months after the Army court heard Green, the Navy-Marine Corps
Court of Criminal Appeals heard US v. Myers. Here, a female Marine reported
that she was raped nearly 8 months after it allegedly occurred. On the
date of the offense, the two Marines had participated in a unit car wash
and had spent the day horse playing and engaging in loose flirting. Later
that evening, Myers came by her room and invited her to the enlisted club.
She had five or six drinks of alcohol over approximately three hours.
She danced with the accused and had kissed him at the club. The accused
later walked her back to her room where they parted company and she went
inside and changed into a tee shirt and boxer shorts.
Later, the accused knocked on her door and she let him in. They started
talking and eventually began kissing. Myers put his hand up her shirt
and she said no. He continued and she said no again. He pushed her onto
her bed, restrained her, removed her clothes, and then raped her. She
blanked out during the rape. The second set of allegations also included
the rape of a civilian that occurred several times over a long night.
The two allegations were joined together in one trial. The government offered
the first set sexual assault to show a propensity for the second charged
sexual assault. The Court found that a spillover instruction was required.
The Landmark Cases and the Constitutionality of Mil. R. Evid. 413
The landmark military case for MRE 413 analysis came in 2000 in
US v. Wright. In
Wright, the Court of Appeals of the Armed Forces answers the Constitutional questions
and begins to outline the 403 analysis that judges are required to conduct.
In Wright, the government tried to use evidence of an indecent assault
in October of 1996 to show a propensity to commit an indecent assault
in April of 1996. Wright claimed that the use of the propensity evidence
denied him a fair trial and was an unconstitutional violation of equal
protection and due process rights. The Air Force Court of Criminal Appeals
had found that that Wright failed to show an overriding fundamental concept
of justice that would limit the use of the evidence on due process grounds.
On the equal protection grounds, the Court followed the 10th Circuit in
applying the rational basis test to find that Congress had a rational
basis in passing the rule. CAAF agreed.
CAAF looked to the legislative history for Congress’ intent. They
noted that, “the scientific community is divided on the question
of recidivism for sexual offenders…Even with this decision, Congress
enacted the Rules. Thus, unless these Rules are unconstitutional, we are
bound by the Rules.” The Court viewed Mil. R. Evid. 413 as a policy
decision and emphasized that the Mil. R. Evid. 403 balancing test is still
applicable to avoid unfair prejudice. They went onto highlight the factors
that are outlined above. Meanwhile, the dissent argued that the concept
of propensity necessarily has a temporal element and you can’t use
a subsequent act to prove a propensity to commit a prior act.
Then, in
Bailey, the Court had the opportunity to discuss issues of relevancy. Bailey
had been convicted of rape, forcible sodomy, aggravated assault, and other
offenses and sought review on issues of whether the military judge abused
his discretion under MRE 403. The government had offered two witnesses
– the former wife and a former girl friend to testify about prior
acts of uncharged conduct that occurred at least 10 years earlier.
The next landmark case was
Dewrell. The Court held that evidence substantially outweighs probative value
when it has a substantial tendency to distract the members from holding
the prosecution to their burden of proof beyond a reasonable doubt.
The Post-Wright Search for Standards
By 2001, the basic Constitutional questions regarding 413 were answered.
Now, the Court was forced to begin addressing the limits of 413 and the
application of the 403 balancing test. In
Roberts, the Court had the opportunity to examine the use of an indecent assault
as propensity for rape. In
Roberts, the accused snuck up to the rack of a female Sailor trying to fall asleep
in the berthing area of a ship. He reached his hand past her privacy curtain
and then slid his hand over the top of her shorts towards her vagina and
then down into her shorts. The Court found that his actions were admissible
under 413.
One of the most important recent cases is US v. Cohen – where the
Air Force Court of Criminal Appeals acknowledges that both rule 413 and
Wright do not address the analysis for factual similarities. In Cohen,
the accused was charged with indecent assault for digitally penetrating
an intoxicated female airman with his fist. The trial court allowed two
413 witnesses to testify. One was the accused’s ex-wife who testified
that their marriage was a sham intended to allow the accused to avoid
living on base housing. She said that one night, the accused tried to
force her to give him a blow job.
The second witness was a 15-year old acquaintance that testified that the
accused lay down on top of her, kissed her, tried to place his hand up
her shirt, and left a hickey on her neck. When her father found out, he
called the police and the accused was convicted in state court for his conduct.
The accused argued that there was not a clear enough similarity to the
act of digitally penetrating an unconscious female in a hotel room. The
court noted there is no requirement for prior acts to be “virtually
identical or substantially similar.”.The Court is ultimately content
that the trial judge tried to consider the similarities and dissimilarities
and gave the members a limiting instruction.
The next important case was
US v. Berry in 2005. In Berry, CAAF had the opportunity examine the issue of probative
value with regards to the 403 balancing test. Berry presents the only
case in which an appellate court found that the trial judge’s balancing
test was inadequate. The government sought to admit evidence of sexual
misconduct that occurred eight years earlier when Berry was 13 and the
victim was 6. The government’s theory was that Berry had a propensity
to prey on those in a vulnerable position. The defense objected to the
reliability of the testimony on the grounds that the memories of a six
year old were unreliable and that the misconduct constituted sexual experimentation.
Berry’s argument on appeal challenged the logical relevancy of the
evidence and the judge’s balancing test. CAAF found that the trial
court failed to adequately analyze the probative value of the evidence
– one incident was between children and the other was between two
adults after a night of drinking. The Court noted that the 8 year time
lapse between the incidents was not enough to make a determination on
the admissibility of the evidence. The Court also noted distinctions between
the intellectual capacities of a teenager and adult.
The
Berry Concurrence and the Future of Logical Relevancy
Perhaps, the future importance of
Berry lay more in the nature of the concurrence by Judge Crawford. The Chief
Judge also found that the 413 evidence was not logically relevant. He
reasoned that the childhood sexual act was not legally relevant because
of the differences in the accused’s mens rea at 13 and 21. Judge
Crawford believed that if the act isn’t legally relevant than it
isn’t logically relevant in the first place.
The critical piece of his concurrence is in his criticism that the majority
accepted that the similarity of the conduct was sufficient to establish
logical relevance. Chief Judge Crawford focuses the 403 balancing test
by emphasizing that the evidence must make the accused’s “propensity”
more probable. He’s bothered by the fact that the “mere happenstance
of a similar, earlier act demonstrates per se relevance to propensity,
even absent evidence or a presumption of similarity of mens rea.”
The Chief Judge notes that propensity is generally defined as a person’s
“natural inclination.” Yet, he also says that he cannot “agree
that the rule creates a bypass around MRE 401 and 402 or creates a happenstance
equals relevance equation.”
The Proposal – What’s Similar
Chief Judge Crawford’s concurrence belies a disturbing trend in the
majority of 413 opinions. The trend in the case law has been for judges
to use any discernible similarity to satisfy the 413 analysis –
these include superficial similarities. Tragically, they have adopted
Congress’ presumption that all acts of sexual misconduct are logically
relevant and probative. While certainly a single instance of misconduct
could be probative, Court’s are ignoring any meaningful analysis
aimed at determining whether conduct is actually probative towards propensity.
Moreover, the legislative history expresses few concerns over imposing
limits on admissibility.
Unfortunately, judges have assumed that any type of conduct is relevant
towards propensity. The result is a danger that judges may use superficial
similarities to find evidence admissible. Yet, David Karp notes that the
rule requires similarity in kind to the charged offense.
Mil. R. Evid. 413 is premised on the notion that propensity evidence in
sexual offense cases can be a reliable indicator of actual guilt. Propensity,
however, can’t be proven on the basis of superficial similarities.
That would produce results based on mere coincidences – not propensity
– as Chief Judge Crawford suggests. David Karp, wrote that, “the
requirement of similarity in kind to the charged offense tends to ensure
that the uncharged acts will have a high degree of probative value, and
will not be mere distractions from the main issues.”[30]Further,
Wright acknowledges that Mr. Karp is an authoritative part of the legislative history.[31]
Again, the Court doesn’t have to find substantial similarities between
the 413 conduct and the charged conduct. But, there must be limits and
the rule’s author delineates those limits when he suggests “similarity
in kind to the charged offense.”
Appendix A: Text of Mil. R. Evid. 413
Rule 413. Evidence of similar crimes in sexual assault cases
MAAL FOR COURTS - MARTIAL, 1998
Prescribed by Executive Order No. 12473, as amended by Executive Order
Nos. 12484, 12550, 12586, 12708, 12767 and 12888
PART III - MILITARY RULES OF EVIDENCE
SECTION IV. RELEVANCY AND ITS LIMITS
Rule 413. Evidence of similar crimes in sexual assault cases
(a) In a court-martial in which the accused is charged with an offense
of sexual assault, evidence of the accused's commission of one or more
offenses of sexual assault is admissible and may be considered for its
bearing on any matter to which it is relevant.
(b) In a court-martial in which the Government intends to offer evidence
under this rule, the Government shall disclose the evidence to the accused,
including statements of witnesses or a summary of the substance of any
testimony that is expected to be offered, at least 5 days before the scheduled
date of trial, or at such later time as the military judge may allow for
good cause.
(c) This rule shall not be construed to limit the admission or consideration
of evidence under any other rule.
(d) For purposes of this rule, "offenses of sexual assault" means
an offense punishable under the Uniform Code of Military Justice, or a
crime under Federal law or the law of a State that involved --
(1) any sexual act or sexual contact, without consent, proscribed by the
Uniform Code of Military Justice, Federal law, or the law of a State;
(2) contact, without consent of the victim, between any part of the accused's
body, or an object held or controlled by the accused, and the genitals
or anus of another person;
(3) contact, without consent of the victim, between the genitals or anus
of the accused and any part of another person's body;
(4) deriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs
(1) through (4).
(e) For purposes of this rule, the term "sexual act" means:
(1) contact between the penis and the vulva or the penis and the anus,
and for purposes of this rule, contact occurs upon penetration, however
slight, of the penis into the vulva or anus;
(2) contact between the mouth and the penis, the mouth and the vulva, or
the mouth and the anus;
(3) the penetration, however slight, of the anal or genital opening of
another by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person; or
(4) the intentional touching, not through the clothing, of the genitalia
of another person who has not attained the age of 16 years, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.
(f) For purposes of this rule, the term "sexual contact" means
the intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.
(g) For purposes of this rule, the term "State" includes a State
of the United States, the District of Columbia, Puerto Rico, Guam, the
Virgin Islands, and any other territory or possession of the United States.
Appendix B: The Military Case Law
US v. Tanner, 63 M.J. 445 (2006)
US v. Brady, 2006 CCA LEXIS 177 (2006)
US v. Bare, 63 M.J. 707 (2006)
US v. Dacosta, 63 M.J. 575 (2006)
US v. Berry, 61 M.J. 91 (2005)
US v. James, 2006 CAAF LEXIS 845 (USAFCCA 2005)
US v. Coulter, 62 M.J. 520 (NMCCA 2005)
US v. Cohen, 2004 CCA LEXIS (USAFCCA 2004)
US v. Parker, 59 M.J. 195 (2003)
US v. Valentin-Nieves, 57 M.J. 691 (NMCCA 2002)
US v. Roberts, 55 M.J. 724 (NMCCA 2001)
US v. Dewrell, 55 M.J. 131 (2001)
US v. Bailey, 55 M.J. 38 (2001)
US v. Wright, 53 M.J. 476 (2000)
US v. Harris, 2000 CCA LEXIS 178 (AFCCA 2000)- no opinion on the merits.
US v. Myers, 51 M.J. 570 (NMCCA 1999)
US v. Green, 50 M.J. 835 (ACCA 1999)
Sample Instruction from Military Judge Bench Book
You have heard the evidence that the accused may have previously committed
(another)(other) offense (s) of (sexual assault) (child molestation).
You may consider the evidence of such other act(s) of (sexual assault)
(child molestation) for (its) (their) tendency, if any, to show the accused’s
propensity to engage in (sexual assault) (child molestation), as well
as (its) (their) tendency, if any, to:
- (identify the accused as the person who committed the offense(s) alleged in __________.)
- (prove a plan or design of the accused to __________.)
- (prove knowledge on the part of the accused to ____________.)
- (prove that the accused intended to ____________.)
- (show that the accused’s awareness of (his)(her) guilt of the offense(s) charged)
- (determine whether the accused had a motive to commit the offense(s))
- (show that the accused had the opportunity to commit the offense(s))
- (rebut the contention of the accused that (his)(her) participation in the offense(s) charged was the result of (accident) (mistake) (entrapment))
- (rebut the issue of ________ raised by the defense); (and)
- (_____________________).
You may not, however, convict the accused merely because you believe that
(she) (he) committed (this) (these) other offense(s) or merely because
you believe that he has a propensity to engage in (sexual assault) (child
molestation).
The prosecution’s burden of proof to establish the accused’s
guilty beyond a reasonable doubt remains as to each and every element
of (each)(the) offense(s) charged.
140 Cong. Rec. S12,990 (daily ed. Sept. 20, 1994)
See Hampden's Trial, 9 How. St. Tr. 1053, 1103 (K.B. 1684).
Violent Crime Control and Law Enforcement Act of 1994, 103 P.L. 322; 108
Stat. 1796, 1994 Enacted H.R. 3355; 103 Enacted H.R. 3355 Sec. 320935
During the 1994 election in the United States House of Representatives,
in the middle of President Bill Clinton’s first term, the Republican
Party won a 54-seat swing in membership creating a Republican majority
for the first time since 1954. Speaker Newt Gingrich went on to promise
a Contract with America, promising popular and institutional reforms designed
to capitalize on public perceptions that the Democratic Party was corrupt.
See:
http://en.wikipedia.org/wiki/U.S._House_election,_1994.
Prescribed by Executive Order No. 12473, as amended by Executive Order
Nos. 12484, 12550, 12586, 12708, 12767 and 12888
MCM. 413.
MCM. Articles 120, 134.
Violent Crime Control and Law Enforcement Act of 1994, 103 P.L. 322; 108
Stat. 1796, 1994 Enacted H.R. 3355; 103 Enacted H.R. 3355 Sec. 320935.
This section is based on the research of 44 Am. U.L. Rev. 1655.
Karp, David J. “Symposium on the Admission of Prior Offense Evidence
in Sexual Assault Cases: Evidence of Propensity and Probability in Sex
Offense Cases and Other Cases.” 70 Chi.-Kent. L. Rev. 15 (1994).
http://www.ipt-forensics.com/journal/volume10/j10_6.htm
41 Ariz. L. Rev. 963.
Baker, Katherine, K. “Once a Rapist? Motivational Evidence and Relevancy
in Rape Law” 110 Harv. L. Rev. 563 (1997).
Id. at 583.
Id. at 585.
See Appendix B for a list of MRE 413 cases. There are also a number MRE
414 cases that address similar analysis.
US v. Green, 50 M.J. 835 (ACCA 1999).
US v. Myers, 51 M.J. 570 (NMCCA 1999).
US v. Cohen, 2004 CCA LEXIS 130, 10 (2004).
Karp, David J. “Symposium on the Admission of Prior Offense Evidence
in Sexual Assault Cases: Evidence of Propensity and Probability in Sex
Offense Cases and Other Cases.” 70 Chi.-Kent. L. Rev. 15, 22 (1994).
Wright, at 483 n.8.