The Reynolds’ Analysis

  1. militarydefenselawyers367In United States v. Diaz, 59 M.J. 79 (2003), the government introduced evidenced of several other injuries the appellant had allegedly inflicted on his daughter to establish a “pattern of abuse” that would help establish that the death of his daughter was a homicide and appellant was the perpetrator. The CAAF
    applied the Reynolds test and concluded that the uncharged misconduct was improperly admitted: (1) The government failed to establish that the accused had inflicted the other injuries on his daughter; (2) the evidence did not make a fact of consequence more or less probable because the accused’s defense was a
    general denial and a claim that the death was due to unknown causes; and (3) when viewed in the light of improper opinion testimony that was also admitted at
    trial, the evidence was substantially more prejudicial than probative.
  2. United States v. McDonald, 59 M.J. 426 (2004). In applying the second prong of
    Reynolds, the CAAF held that evidence of appellant’s uncharged acts was not
    logically relevant to show either a common plan or appellant’s intent. The
    CAAF concluded that the military judge abused his discretion in admitting the
    uncharged acts to establish a common plan due to how dissimilar the uncharged
    acts were to the charged offenses. The CAAF focused on the fact the appellant
    was 13 years of age at the time of the uncharged acts, rather than a 33-year-old
    adult; the uncharged acts were committed in the home of his stepsister, where he
    was visiting, while the charged acts occurred where he was the head of the
    household; the uncharged acts were with a stepsister who was about five years
    younger, rather than with a young stepchild under his parental control, who was
    about 20 years younger. The CAAF also held the uncharged acts were not
    relevant to show intent. The CAAF focused on the fact the appellant was a 13-
    year-old child at the time of the uncharged acts, and a 33-year-old married adult
    at the time of the charged acts. Absent evidence of that 13-year-old adolescent’s
    mental and emotional state, sufficient to permit meaningful comparison with
    appellant’s state of mind as an adult 20 years later, the CAAF held that the
    military judge’s determination of relevance on the issue of intent was “fanciful
    and clearly unreasonable.”
  3. United States v. Rhodes, 61 M.J. 445 (2005). The CAAF reversed the affected
    findings and sentence after holding that the military judge abused his discretion
    in applying the third prong of the Reynolds test. The case involved a government
    witness who suddenly lost his memory after speaking with the appellant shortly
    before trial. The witness had given a confession implicating himself and the
    appellant in drug offenses. The trial counsel wanted to offer evidence of the
    previous meeting to argue the appellant had intimidated the witness. The CAAF
    determined that the military judge did not err by allowing the government to
    enter evidence about the meeting between the appellant and the government
    witness. The Court concluded this evidence placed the memory loss in its proper
    context. However, the military judge did err when he instructed the members
    that they could use the evidence to prove consciousness of guilt on the
    appellant’s part. The CAAF believed the military judge’s instruction erroneously
    allowed the Government to suggest that the Appellant was at fault for a key
    government witness’s memory loss (other factors could have contributed to the
    memory loss, such as the significant time between the confession and trial).
    “When evidence is admitted under Rule 404(b), the [members] must be clearly,
    simply, and correctly instructed concerning the narrow and limited purpose for
    which the evidence may be considered.”
  4. United States v. Bresnahan, 62 M.J. 137 (2005). Military judge abused his
    discretion by admitting uncharged misconduct evidence. Although not expressly
    stated in the opinion, the military judge’s decision failed the first prong of the
    Reynolds test. The CAAF determined that the admission was harmless. When a
    military judge erroneously admits uncharged misconduct, that decision will not
    be overturned “unless the error materially prejudices the substantial rights of the accused.” UCMJ, art. 59(a). The harmlessness of the error will be evaluated by
    “‘weighing: (1) the strength of the Government’s case, (2) the strength of the
    defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.’” McDonald, 59 M.J. at 430, citing United States v. Kerr, 51 M.J. 401, 405 (1999).
  5. United States v. Hays, 62 M.J. 158 (2005). The Appellant was convicted
    possessing child porn and soliciting the rape of a child. The issue on appeal was
    whether the solicitation conviction was tainted by improper introduction of
    uncharged misconduct. The evidence at issue included emails and pictures from
    the appellant discussing and showing children and adults engaging in sexual
    activity. The defense objected under Rules 401 and 403. The CAAF focused on
    the third Reynolds prong. Although the pictures and language in the e-mails were
    offensive, the CAAF believed that this was the nature of much of the evidence in
    cases involving child pornography. See United States v. Garot, 801 F.2d 1241,
    1247 (10th Cir. 1986) (noting that defendants in child pornography cases
    unavoidably risk the introduction of evidence that would offend an average
    juror). The CAAF determined that in light of the nature of the offense and the
    other evidence admitted, the prejudicial impact of the admitted exhibits did not
    substantially outweigh their probative value in demonstrating appellant’s intent
    and motive to solicit sex with a child. See United States v. Acton, 38 M.J. 330,
    334 (C.M.A. 1993) (explaining that any prejudicial impact due to the “shocking
    nature” of a pornographic video depicting incest was diminished because the
    same conduct was already before the court members).
  6. United States v. Harrow, 62 M.J. 649 (A.F. Ct. Crim. App. 2006). The important
    aspect of this case is not that the Reynolds analysis was done, but the fact it was
    done in such detail. This fact is explained by the AFCCA in the opinion when
    they state: “Before leaving this issue, however, we note that, generally speaking,
    Rule 404(b) is interpreted more restrictively in military jurisprudence than its
    counterpart in other federal courts. In applying this jurisprudence, it is clear that
    military decisions are very fact specific, often based upon the totality of the
    circumstances, rather than granting the military judge broad discretion.”
    Harrow, 62 M.J. at 660; See e.g., Hays, 62 M.J. 158 (2005); Bresnahan, 62 M.J.
    137 (2005); Rhodes, 61 M.J. 445 (2005); and Diaz 59 M.J. at 79 (2003). The
    AFCCA opinion contained interesting dicta on the difference between M.R.E.
    404(b) and F.R.E. 404(b). However, the CAAF elected to ignore the AFCCA
    dicta and instead concentrate on the second prong of the Reynolds’ test regarding
    whether the evidence was relevant to show the appellant’s intent or absence of
    mistake. United States v. Harrow, 65 M.J. 190 (2007).
  7. United States v. Booker, 62 M.J. 703 (A.F. Ct. Crim. App. 2006). May evidence
    be admitted under M.R.E. 404(b) to show an accused’s consciousness of guilt?
    Yes. Evidence may be admitted under M.R.E. 404(b) to show an accused’s
    consciousness of guilt. The relevant evidence need not fit exactly into one of the
    pigeon holes described under M.R.E. 404(b) so long as the evidence is offered
    for a purpose other than to show the accused’s predisposition to commit the
    crime.
  8. United States v. Thompson, 63 M.J. 228 (2006). The Appellant was convicted of
    wrongful use, possession and distribution of marijuana. The issue on appeal was
    whether the military judge erred in admitting evidence of uncharged misconduct.
    The uncharged misconduct involved two pretrial statements by the Appellant that
    contained information about his preservice drug use. The appellant maintained
    the uncharged misconduct served no legitimate purpose and merely painted him
    as a habitual drug user. The CAAF focused on the second Reynolds prong. The
    Court found that Thompson did not raise the issues of lack of knowledge or
    mistake of fact regarding marijuana. Although the defense counsel referred to
    the Appellant as “naive” and “young” in his opening statement, this description
    was never tied to marijuana or tied to anything that caused the Appellant to
    misapprehend any fact of consequence. Because the military judge admitted the
    uncharged acts evidence for the purpose of disproving lack of knowledge or
    mistake of fact, that evidence served no relevant purpose. Since it was not
    relevant, the evidence failed the second prong of the Reynolds analysis. The
    evidence did not make a fact of consequence more or less probable by the
    existence of the evidence.

>United States v. McDonald, 59 M.J. 426 (2004).

United States v. Rhodes, 61 M.J. 445 (2005).