Permissible Propensity Inference

    1. military defense lawyers362In certain situations you can use propensity evidence to show a person acted in conformity with their character. It is important to master these exceptions in order to avoid confusion.
      1. Pertinent Character Traits Offered by the Accused – the accused may offer any pertinent character trait which makes it unlikely that she committed the charged offense (Rule 404(a)(1)). In other words, this is circumstantial evidence of conduct. “Pertinent” in 404(a) means the same thing as “relevant” as that term is defined in 401.
        1. When submitting the request for reputation or opinion witnesses,
          the proffer should include the following foundational elements:
          the name of the witness, whether the witness belongs to the same
          community or unit as the accused, how long the witness has
          known the accused, whether he knows him in a professional or
          social capacity, the character trait known, and a summary of the
          expected testimony. United States v. Breeding, 44 M.J. 345
          (1996).
        2. The formula could be applied in the following scenarios:
          Pertinent Offense Character Trait Larceny Trustworthiness or Honesty
          Drunkenness Sobriety
        3. An accused’s general good military character is a pertinent
          character trait if there is a nexus, however strained or slight,
          between the crime circumstances and the military. The defense,
          in virtually every case, and certainly in every “military” offense
          prosecution, may attempt a “good soldier defense” by presenting
          the accused’s good military character evidence. United States v.
          Wilson, 28 M.J. 48 (C.M.A. 1989). Consider the impact of
          United States v. Foster, 40 M.J. 140 (C.M.A. 1994) (service
          discrediting behavior or conduct prejudicial to good order
          inherent in all enumerated offenses).
        4. Rebuttal by Government of Good Character of Accused – if an
          accused introduces good character evidence (or any other
          pertinent character trait), the government is allowed to rebut this
          with bad character evidence to suggest that the accused is guilty.
          NOTE: If a defense counsel loses a motion in limine to preclude
          the government from cross-examining character witnesses
          regarding accused’s bad acts, a tactical election not to present
          good character case probably will bar review. United States v.
          Gee, 39 M.J. 311 (C.M.A. 1994).
        5. Rebuttal by the government is proper when the accused claims
          that he or she is not the sort of person who would do such a
          thing. “The price a defendant must pay for attempting to prove
          his good name is to throw open the entire subject which the law
          has kept closed for his benefit and to make himself vulnerable
          where the law otherwise shields him.” Michelson v. United
          States, 335 U.S. 469, 479 (1948); United States v. Johnson, 46
          M.J. 8 (1997).

          1. But see, United States v. Trimper, 28 M.J. 460 (C.M.A.)
            cert. denied, 493 U.S. 965 (1989). Even if the accused opens the door to uncharged misconduct (here by claiming to have never used cocaine), the judge must decide whether the unfair prejudicial effect of the rebuttal evidence substantially outweighs its probative value. Rule 403. See also, United States v. Graham, 50 M.J. 56 (1999). CAAF held it was reversible error to allow trial counsel to question accused about prior positive urinalysis, even though the accused testified he was surprised when he tested positive for THC.

United States v. Goldwire, 55 M.J. 139 (2001), the
CAAF held that when defense counsel attempt to
develop their theory of the case through the cross
examination of government witnesses, they may open
the door to reputation and opinion testimony regarding
truthfulness of the accused. In Goldwire, the trial
defense counsel cross-examined the CID agent on
exculpatory statements made by the accused during the
interview conducted by the CID agent. The appellant
argued on appeal that this cross-examination was
allowed under the rule of completeness and that it did
not open the door to reputation and opinion testimony
concerning the accused. The CAAF disagreed.

      1. Accused’s Sexual Propensities – proof of an accused’s sexual
        propensities in sex offense courts-martial is specifically allowed.
        Rules 413 and 414 (treated in greater detail later in this outline).
    1. Character of Victim – an accused is allowed to offer evidence of a
      pertinent character trait of an alleged victim in order to show that it
      makes it likely the victim acted in a certain way on a specific occasion.
      Rule 404(a)(1) and (2). For example, the accused is permitted, when
      relevant, to show that the victim was the aggressor by introducing
      evidence of the victim’s character for violence. United States v.
      Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989).

      1. Rebuttal by Government of Character of Victim – the
        government is allowed to rebut with character evidence about the
        victim in any of the following situations:
      2. In situations where the accused offers a pertinent character trait
        of the alleged victim, the government may rebut the accused’s
        evidence with their own character evidence of the victim. Rule
        404(a)(2).
      3. Additionally, in situations where the accused offers a pertinent
        character trait of the alleged victim, that opens the door for the
        government to offer evidence of the same character trait, if
        relevant, of the accused (even without the accused first bringing
        his or her character into evidence). Rule 404(a)(1). (June 2002
        Amendment)
      4. ALSO, in homicide and assault cases, the government may
        introduce character evidence to prove the peaceful character of
        the victim in order to rebut a claim made in any way that the
        victim was an aggressor. Rule 404(a)(2), United States v.
        Pearson, 13 M.J. 922 (N.M.C.M.R. 1992) (victim’s character for
        peacefulness relevant after accused introduces evidence that
        victim was the aggressor).
    2. Impeachment of a Witness – when an issue is whether a witness testified
      truthfully, evidence about that witness’s character for truth-telling is
      permitted to support an inference that the witness has acted at trial in
      conformity with the witness’s usual respect for truth. Rules 405(a) and
      608.
  1. Character Evidence for Nonpropensity Purpose – If the evidence has relevance
    independent of propensity, it may be admissible. For example, evidence that
    someone charged with an offense has committed similar offenses in the past
    could lead a trier of fact to conclude the person is a bad person and criminally
    inclined. If this were the only purpose for the evidence given by the government,
    it would not be a permissible use of character evidence. If, however, the
    evidence were offered to prove the accused possessed the knowledge necessary
    to commit the charged offense in the current court-martial, then admissibility
    would be possible. Rule 404(b) (treated in greater detail later in this outline).

When submitting the request for reputation or opinion witnesses

Rebuttal by Government of Character of Victim