Rule 401. Definition Of “Relevant Evidence.”

Relevancy, the chief constraint on examination of witnesses or the introduction of physical evidence, has two components:

Probative Value:  relationship between the item of evidence and the proposition it is  offered to prove and

Materiality:  relationship between proposition evidence is offered to prove and the facts at issue in the case.

Rule 401.  Definition of “relevant evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

”Any tendency” – lowest possible standard.  Shifts emphasis from admissibility to weight.  The test for logical relevance is whether the item of evidence has any tendency whatsoever to affect the balance of probabilities of the existence of a fact of consequence.

United States v. Cousins, 35 M.J. 70 (C.M.A. 1992). In prosecution for one time use of cocaine, MJ committed “plain error” by permitting government witness to testify accused had used  methamphetamine 9-11 times prior to the charged offense.  Evidence did not make  accused’s use of cocaine “more or less probable” and was irrelevant. Judge’s instruction that the evidence was presented as “background information” only did not cure the error.

United States v. Huet-Vaughn, 43 M.J. 105 (1995).  Army reserve physician’s motives and reasons for refusing to support Desert Shield and views about the lawfulness of her deployment orders irrelevant to charge of desertion with intent to avoid hazardous duty.

United States v. Loya, 49 M.J. 104 (1998).  Accused convicted of negligent homicide.  At sentencing, defense wanted to introduce testimony from treating physician that he disagreed with senior doctor’s treatment of victim.  Military judge did not admit the evidence.  CAAF held this was prejudicial error.  Should have been admitted as mitigation even though this was a judge alone trial.

United States v. Schlamer, 52 M.J. 80 (1999).  Accused was charged with the premeditated murder of a female.  Victim was found with her throat cut. At trial, the government introduced pictures and writings seized from the accused.  In these documents, the accused set out in graphic detail his desires to kill women and have sex with them and commit other violent acts.  These writings did not mirror the actual crime, and defense claimed that they were not relevant.  Held:  401 is a low standard and since the defense was trying to portray the accused as a docile person, this evidence had some tendency to show a darker side that was consistent with his confession.

United States v. Burns, 53 M.J. 42 (2000). Accused charged with indecent assault.  At the accused’s apartment (crime scene) the police found an unused condom at the head of the bed.  Government introduced a picture of the condom at trial.  Defense objected for lack of relevance.  The CAAF ruled that under MRE 401, this evidence was relevant to corroborate the victim’s statement that the assault occurred in the bedroom, and the evidence provided a backdrop to what occurred.

Mil. R. Evid. 402 – Provides all relevant evidence is admissible, except as otherwise is provided by the Constitution of the United States as applied to members of the armed forces, the code, these rules, this Manual, or any Act of Congress applicable to members of the armed forces.  Evidence which is not relevant is not admissible.

Rule 403. Exclusions Of Relevant Evidence On Grounds Of  Prejudice, Confusion, Or Waste Of Time.

Rule 403.  Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Legal Relevance.  The probative value of any evidence can’t be substantially outweighed by any attendant or incidental probative dangers.  Among the factors specifically mentioned in the rule are “the danger of unfair prejudice, confusion of the issues, or misleading the members.”  Some other things the trial judge might consider include the strength of the probative value of the evidence (i.e., a high degree of similarity), the importance of the fact to be proven, whether there are alternative means of accomplishing the same evidentiary goal (consider in connection with defense concessions to 404(b) uncharged misconduct) and the ability of the panel to adhere to a limiting instruction.

The rule favors admissibility.  A judge will exclude evidence on a legal relevance theory only when the probative value is “substantially outweighed” by the accompanying probative dangers.  The passive voice suggests that it is the opponent who must persuade that the prejudicial dangers overcome the probative value.

Mil. R. Evid. 403 codifies judicial discretion.  It is the rule by which the legal relevance of evidence is ascertained.  Saltzburg, Schinasi & Schleuter state that while Rule 403 has broad application throughout the Military Rules of Evidence, “its greatest value may be in resolving Rule 404(b) issues” because of the low threshold of proof required to establish extrinsic events.  See Editorial Comment, Mil. R. Evid. 403, Military Rules of Evidence (3d ed. 1991) at 437.

United States v. Holmes, 39 M.J. 176 (C.M.A. 1994):  Although 18 year-old evidence of prior marijuana use is not per se inadmissible, mere logical relevance of such evidence (to show lack of credibility) is not sufficient. Wrongly suggesting continuous use for 18 years was “precisely the situation that Mil. R. Evid. 403 is designed to prevent” where the limited probative value was substantially outweighed by the prejudicial effect.

United States v. Walker, 42 M.J. 67 (1995).  Medical records documenting history of sinusitis and expert testimony suggesting chronic cocaine abuse, while admissible under 404(b) to rebut claim of innocent ingestion, was unduly prejudicial.  Limited probative value diminished by fact expert did not examine accused and no cautionary instruction given.

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