Rule 404(b). Uncharged Misconduct

  1. militarydefenselawyers364Understanding the Rule: Although proof of an individual’s character through evidence of other crimes, wrongs, or acts to show action in conformity (propensity) with that character on a specific occasion is not allowed (except in sexual offense cases and certain other limited circumstances), it can be admitted if it is introduced for a nonpropensity purpose. Nonpropensity evidence (uncharged misconduct) is not offered to prove that an individual acted in conformity with that individual’s character on a particular occasion. Nonpropensity evidence is offered to prove such things as Knowledge, Intent, Plan, Preparation, Opportunity, Motive, Identity, and Absence of Mistake (KIPPOMIA). The list in Rule 404(b) is NOT exhaustive: The “sole test” for admissibility of uncharged misconduct is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s
    predisposition to crime and therefore to suggest that the factfinder infer that he is
    guilty, as charged, because he is predisposed to commit similar offenses. It is
    unnecessary that relevant evidence fit snugly into a pigeon hole provided by Rule
    404(b). United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989).
  2. Two Main justifications for the prohibition on propensity:
    1. Propensity evidence may lead to the wrong outcome in a court-martial.
    2. Propensity evidence almost always carries a significant risk of unfair
  3. Rule 404(b) is an “inclusive rule” which permits admission of extrinsic evidence
    unless the sole purpose is to show criminal disposition. If the proponent can
    articulate a nonpropensity theory of logical relevance for the uncharged
    misconduct evidence, the military judge will have discretion to admit or exclude
    the evidence.
  4. Some Nonpropensity Theories of Relevance.
      1. Motive. Motive supplies the reason that nudges the will and prods the
        mind to indulge in criminal intent. Such evidence may be offered to
        prove that the act was committed, or to prove the identity of the actor, or
        to prove the requisite mental state.

        1. Two inferences are required: first, the act(s) must support an
          inference of some mental state AND second, the mental state
          must be causally related to an issue in the case. This is an area
          which is difficult to distinguish, analytically, from propensity.
        2. Some examples:
            <;i> United States v. Watkins, 21 M.J. 224, 225 (C.M.A.
            1986) (motive evidence relevant to show a person’s
            action as an outlet for emotions. Prior acts of conduct
            must be of a type which reasonably could be viewed as
            the expression and effect of the existing internal
            emotion, and same motive must exist at time of
          subsequently charged acts).
  5. United States v. Phillips, 52 M.J. 268 (2000). Accused
    charged with BAQ fraud and entering into a sham
    marriage in order to collect BAQ payments. Court held
    that evidence of the accused’s homosexual relationship
    was admissible under Rule 404(b) to show motive and
  • Intent: Negates accident, inadvertence or casualty. Intent differs from
    other named Rule 404(b) exceptions because, typically, it is an ultimate
    issue in the case. When considering whether uncharged misconduct
    constitutes admissible evidence of intent under Rule 404(b), a military
    judge should consider “whether … [the accused’s] state of mind in the
    commission of both the charged and uncharged acts was sufficiently
    similar to make the evidence of the prior acts relevant on the intent
    element of the charged offenses.” United States v. McDonald, 59 M.J.
    426, 430 (2004). According to the CAAF, the relevancy of the other
    crime is derived from the accused’s possession of the same state of mind
    in the commission of both offenses. The state of mind does not have to
    be identical, but must be sufficiently similar to make the evidence of the
    prior acts relevant on the intent element of the charged offenses. The
    link between the charged and uncharged misconduct must permit
    meaningful comparison.
  1. The “doctrine of chances.” United States v. Merriweather, 22
    M.J. 657, 661 (A.C.M.R. 1986) (“[T]he sheer number of injuries
    suffered by the victim over a relatively short period of time
    would have led common persons to conclude that the charged
    injury was less likely to have been accidental, thus rebutting the
    inference of possible accident which arose from the testimony
    elicited by the defense counsel”).
  2. United States v. Sweeny, 48 M.J. 117 (1998). Accused charged
    with stalking his current wife. Court allowed evidence that
    accused stalked former wife in a similar manner. Court said
    uncharged misconduct was probative of intent to inflict
    emotional distress.
  3. United States v. Henry, 53 M.J. 108 (2000). At his trial for rape
    of his stepdaughters, evidence was introduced that the accused
    made her watch pornographic videos with him. No videos were
    found in the home, but magazines containing video order forms
    were found and introduced at trial under Rule 404(b). The
    CAAF affirmed holding that this evidence was relevant to show
    intent and that the accused may have groomed his victim. The
    court also said this evidence was relevant to impeach the
    victim’s in-court testimony because she was now recanting her
    allegations of rape.
  4. United States v. Hays, 62 M.J. 158 (2005), the CAAF affirmed a
    military judge’s decision to admit the appellant’s uncharged acts
    as evidence of intent. The appellant was charged with solicitation
    to commit the rape of a minor, and the government introduced
    numerous items of child pornography and explicit e-mails from
    the appellant’s computer to demonstrate intent to commit the
  5. United States v. Harrow, 65 M.J. 190 (2007). Appellant was
    charged with the unpremeditated murder of her five-month-old
    daughter. The military judge permitted three witnesses to testify
    about previous incidents where the appellant was abusive to her
    daughter. The military judge correctly applied the three-part test
    found in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.
    1989) to determine admissibility of previous incidents of
    flicking, thumping, and biting reflected a state of mind indicating
    that the appellant responded to her daughter’s irritating, yet
    normal, behavior with deliberate, inappropriate physical force
    under M.R.E. 404(b).1 The CAAF determined that the evidence
    was relevant to show both absence of mistake and intent.
    Although the appellant did not argue accident, evidence
    produced at trial by the appellant supported an argument that the
    injuries might have been accidentally inflicted. The government
    was entitled to rebut this argument. Likewise, although the
    1 The three-part test of Reynolds is: (1) Does the evidence reasonably support a finding by the court members that the appellant
    committed the prior crimes, wrongs, or acts?; (2) What fact of consequence is made more or less probable by the existence of this
    evidence?; AND (3) Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice?
    appellant did not defend on the ground of either lack of requisite
    intent or accident, the CAAF held that “evidence of intent and
    lack of accident may be admitted regardless of whether a
    defendant argues lack of intent because every element of a crime
    must be proven by the prosecution.” Id. at 202.
  • Plan: Connotes a prior mental resolve to commit a criminal act, and
    implies preparation, and working out the particulars (time, place,
    manner, means, and so forth). Plan may prove identity, intent or the
    actual criminal act. Evidence of plan must actually establish a plan. The
    CAAF will examine the relationship between the victims and the
    appellant, ages of victims, nature of the acts, situs of the acts,
    circumstances of the acts, and time span. If the CAAF finds the
    dissimilarities too great to support a common plan theory, it will not
    support admitting the uncharged misconduct.
  1. Some decisions have been quite liberal in admitting uncharged
    misconduct evidence under the rubric of plan. See, United States
    v. Munoz, 32 M.J. 359 (C.M.A.), cert. denied, 502 U.S. 967
    (1991) (where the “age of the victim, the situs of the offense, the
    circumstances surrounding their commission, and the fondling
    nature of the misconduct” were similar to sexual misconduct of
    the accused 12 years earlier, the evidence was admissible to
    show a plan to sexually abuse his children (per Judge Sullivan).
  2. The CAAF may be applying the brakes to the practice of using
    old acts of uncharged misconduct to prove plan under Rule
    404(b). See, United States v. McDonald, 59 M.J. 426, 430
    (2004) (holding that a military judge abused his discretion in
    admitting 20-year-old acts of uncharged misconduct committed
    when the appellant was 13 years old to establish a common plan
    to commit charged acts of sexual misconduct against the
    appellant’s daughter.
  • Identity: The government may use modus operandi evidence to establish
    the identity of the accused.
  1. A high degree of similarity between the extrinsic act and the
    charged offense is required, so similar as to constitute “a
    signature marking the offense as the handiwork of the accused.”
    United States v. Gamble, 27 M.J. 298, 305 (C.M.A. 1988).
  • Consciousness of Guilt.
  1. In United States v. Rhodes, 61 M.J. 445 (2005), the military
    judge admitted evidence of a meeting between a key government
    witness and the appellant to show the appellant’s consciousness
    of guilt. Shortly after the meeting, the witness manifested a
    sudden memory loss pertaining to his potential testimony. The
    CAAF held that the evidence could have been admitted to
    evaluate the truthfulness of the witness’s claim of memory loss,
    but not to show appellant’s consciousness of guilt. But see
    United States v. Staton, 68 M.J. 569 (A.F. Ct. Crim. App. 2010)
    (holding that evidence of the accused’s attempt to intimidate a
    former trial counsel by driving his car at at her at a high rate of
    speed could be admitted under 404(b) as evidence of his
    consciousness of guilt in his trial for assault consummated by
    battery upon a child under 16 years of age).
  2. United States v. Staton, 69 M.J. 228 (C.A.A.F. 2010), the court
    held that prosecutor intimidation, where the accused drove his
    car aggressively towards the trial counsel in the commissary
    parking lot, is probative of consciousness of guilt and a carefully
    tailored instruction appropriately mitigated the dangers that
    defense articulated, that the evidence would be used for the
    wrong purpose. The Court used the Reynolds test to determine

Two Main justifications for the prohibition on propensity:

Some Nonpropensity Theories of Relevance.