The Reynolds’ Analysis
In 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.- 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.” - 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.” - 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). - 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). - 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). - 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. - 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.
