MRE 413 & MRE 414: Evidence of Similar Crimes in Sexual Assault & Child Molestation Cases

militarydefenseattorneys9.58.59 PM copy2.1 Statutes

a.         In a court-marshal in which the accused is charged with the offense of [sexual assault] [child molestation], evidence of the accused’s commission of one or more offense of [sexual assault] [child molestation] is admissible and may be considered for its bearing on any matter to which it is relevant.

b.        In a court martial in which the Government intends to offer evidence under this rule, the Government shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 5 days before the scheduled date of trial, or at such other time the military judge may allow for good cause.

c.         This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

d.         [Definitions of “offenses of sexual assault” and “child molestation”]

militarydefenseattorneys9.58.31 PM2.2 Background

a.         Rules 413 and 414 state that the accused’s commissions of one or more offenses of [sexual assault/child molestation] are admissible and were written to overcome the procedural bar on introducing former criminal acts according to Rules 404 (a) and (b).  These rule reject the tradition of barring evidence showing there was a propensity to commit a crime and were based on three main criticisms to the bar of such evidence under rule 404(b): Rule 404(b) requires trial counsel to verbalize a purpose besides propensity to commit the sexual assault/child molestation; the military judge always has discretion under rule 403 to exclude the evidence; and limiting instructions from military judges kept the government from using evidence of past sexual offenses to show a propensity to commit similar acts.

b.        Rule 413 and 414 were decided upon by Congress as part of the Violent Crime Control and Enforcement Act of 1994 and later adopted under the MRE.  The intention behind the law was to allow evidence of an accused’s propensity to commit sexual offenses based on their past conduct.

militarydefenseattorneys10.02.22 PM2.3 Scope of Rules 413/414

a.         In order to admit evidence under rules 413 and 414 there are three determinations of threshold that need to be made:

1.         The accused must be charged with an act of sexual assault or child molestation;

2.         The evidence being offered is evidence of the accused committing another act of sexual assault/child molestation; and

3.         The evidence is relevant under rules 401 and 402.

b.        In order to determine the threshold requirements under rules 413 and 414, a military judge must use the balancing test under rule 403 to determine if the value of the evidence does not outweigh possible prejudice, confusion, or misleading the members.  There are many factors that the judge can use when determining this balancing test including probative weight of the evidence, strength of proof of a prior act, frequency of the acts and lack of intervening circumstances.  See United States v. Wright, 53 M.J. 476, 482 (2000).

1.         United States v. Green, 51 M.J. 835 (Army Ct. Crim. App. 1999).  Rule 413 does not automatically “trump” rule 403.  The military judge must still do a Rule 403 balancing test.

2.         United States v. Dewrell, 52 M.J. 601 (A.F. Crim. App. 1999).  Rule 414 must be applied broadly in a way that favors admission of propensitary evidence.

3.         United States v. Berry, 61 M.J. 91 (2005). While Rule 413 should be interpreted in a way that favors admissibility that does not mean that if the balancing test in Rule 403 is not met that the evidence should be admitted.

4.         United States v. James, 63 M.J. 217 (2006).  Rule 413 does not just include offenses that occur prior to the charges act; offenses that occur afterwards may also be admitted.

5.         Huddleston v. United States, 485 U.S. 681 (1988).  The evidence being presented under Rules 413/414 must show that the person that committed the other acts were indeed the accused.

6.         United States v. Castillo, 140 F.2d 874 (10th Cir. 1998).  Federal Rule 414, on which MRE 414 is copied, does not deny the accused of their due process rights and still protects all federally protected rights.

7.         United States v. Henley, 53 M.J. 488 (2000).  Evidence under Rules 413/414 may be admitted even if the secondary act is outside its statute of limitations.

8.         United States v. Tamer, 63 M.J. 446 (2006). Evidence under Rules 413/414 may be used to determine sentencing as it “directly relates” to the offense for which the accused has been found guilty and is therefore relevant.

militarydefenseattorneys10.02.40 PM2.4 Judicial Instruction

a.         According to United States v. Dacosta, 63 M.J. 575 (Army Crim. Ct. App. 2006), Army military judges must issue the following instructions to the members:

1.         Accused is not charged with other sexual offense.

2.         The Rule 413 evidence should have no bearing on the members deliberations unless they determined the other offense occurred.

3.         If a determination is made that the other offense occurred, the members may consider it for any matter for which it is relevant in relation to the sexual offenses charged, such as sentencing.

4.         The Rule 413 evidence has no bearing on any other offense charged.

5.         The members may not convict the accused solely because they believe the accused committed other sexual offenses and therefore has a propensity to commit them again absent evidence the accused has committed the pleaded crime.

6.         The members may not use rule 413 as substitute evidence to overcome the government’s requirement of proof.

7.         Each offense must stand on its own and they must keep evidence of each offense separate.

8.         The burden is on the government to prove every element of the offenses charged beyond a reasonable doubt.

militarydefenseattorneys10.03.26 PM copy2.4 Elements to be Established

a.         In order to introduce rule 413/414 evidence, the Government must establish the following:

1.         Where the event occurred,

2.         When the event occurred,

3.         Who was involved,

4.         What happened, and

5.         The similarities between the event sought to be introduced and the pleaded sexual assault or child molestation.

b.        Opinion evidence cannot be introduced as to whether the accused is more likely to commit sexual assault/child molestation because of the act sought to be introduced under rule 413/414.

c.         The Defense should be prepared to make both a 403 and 404 objections to evidence sought to be introduced under Rules 413/414 or they risk waiving such objections.

The Role of Affirmative Defenses to Military Sexual Assault

MRE 412: Military “Rape Shield Law”

MRE 413 & MRE 414 Evidence of Similar Crimes in Sexual Assault & Child Molestation Cases

Sexual Assault Crimes in the Military: Overview

vidence of Similar Crimes