MILITARY RULE OF EVIDENCE MRE413

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:

1. that the accused is charged with a sexual offense under Mil. R. Evid. 413 (a);
2. the evidence must involve the accused’s commission of another sexual assault offense as defined in the rule, and;
3. 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:

1. the strength of proof of the prior act;
2. the probative weight of the evidence;
3. potential for less prejudicial evidence;
4. distraction of fact finder;
5. time needed for proof of prior conduct;
6. temporal proximity to the charged offense;
7. frequency of the acts;
8. intervening circumstances and;
9. 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.