2008 edition - Fort Sam Houston - U.S. Army

1969 Manual defines as “not relevant” evidence “too remote to
have any appreciable probative value ...” To the extent that the
1969 Manual’s definition includes considerations of “legal relevance,”
those considerations are adequately addressed by such
other Rules as Rules 403 and 609. See, E. IMWINKELRIED, P.
GIANNELLI, F. GILLIGAN & F. LEDERER, CRIMINAL EVI-
DENCE 62–65 (1979) (which, after defining “logical relevance”
as involving only probative value, states at 63 that “under the
rubric of [legal relevance,] the courts have imposed an additional
requirement that the item’s probative value outweighs any attendant
probative dangers.”) The Rule is similar to the 1969 Manual
in that it abandons any reference to “materiality” in favor of a
single standard of “relevance.” Notwithstanding the specific terminology
used, however, the concept of materiality survives in
the Rule’s condition that to be relevant evidence must involve a
fact “which is of consequence to the determination of the action.”
Rule 402 Relevant evidence generally admissible;
irrelevant evidence inadmissible.
Rule 402 is taken without significant change from the Federal
Rule. The Federal Rule’s language relating to limitations imposed
by “the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority” has been replaced by material
tailored to the unique nature of the Military Rules of Evidence.
Rule 402 recognizes that the Constitution may apply somewhat
differently to members of the armed forces than to civilians, and
the Rule deletes the Federal Rule’s reference to “other rules
prescribed by the Supreme Court” because such Rules do not
apply directly in courts-martial. See Rule 101(b)(2).
Rule 402 provides a general standard by which irrelevant evidence
is always inadmissible and by which relevant evidence is
generally admissible. Qualified admissibility of relevant evidence
is required by the limitations in Sections III and V and by such
other Rules as 403 and 609 which intentionally utilize matters
such as degree of probative value and judicial efficiency in determining
whether relevant evidence should be admitted.
Rule 402 is not significantly different in its effect from Para.
137 of the 1969 Manual which it replaces, and procedures used
under the 1969 Manual in determining relevance generally remain
valid. Offers of proof are encouraged when items of doubtful
relevance are proffered, and it remains possible, subject to the
discretion of the military judge, to offer evidence “subject to later
connection.” Use of the latter technique, however, must be made
with great care to avoid the possibility of bringing inadmissible
evidence before the members of the court.
It should be noted that Rule 402 is potentially the most important
of the new rules. Neither the Federal Rules of Evidence nor
the Military Rules of Evidence resolve all evidentiary matters; see
Rule 101(b). When specific authority to resolve an evidentiary
issue is absent, Rule 402’s clear result is to make relevant evidence
admissible.
Rule 403 Exclusion of relevant evidence on
grounds of prejudice, confusion or waste of time
Rule 403 is taken without change from the Federal Rule of
Evidence. The Rule incorporates the concept often known as
“legal relevance”, see the Analysis to Rule 401, and provides that
evidence may be excluded for the reasons stated notwithstanding
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 404(a)
its character as relevant evidence. The Rule vests the military
judge with wide discretion in determining the admissibility of
evidence that comes within the Rule.
If a party views specific evidence as being highly prejudicial, it
may be possible to stipulate to the evidence and thus avoid its
presentation to the court members. United States v. Grassi, 602
F.2d 1192 (5th Cir. 1979), a prosecution for interstate transportation
of obscene materials, illustrates this point. The defense offered
to stipulate that certain films were obscene in order to
prevent the jury from viewing the films, but the prosecution
declined to join in the stipulation. The trial judge sustained the
prosecution’s rejection of the stipulation and the Fifth Circuit
upheld the judge’s decision. In its opinion, however, the Court of
Appeals adopted a case by case balancing approach recognizing
both the importance of allowing probative evidence to be presented
and the use of stipulations as a tool to implement the
policies inherent in Rule 403. Insofar as the latter is concerned,
the court expressly recognized the power of a Federal district
judge to compel the prosecution to accept a defense tendered
stipulation.
Rule 404 Character evidence not admissible to
prove conduct; exceptions; other crimes
( a ) C h a r a c t e r e v i d e n c e g e n e r a l l y . R u l e 4 0 4 ( a ) r e p l a c e s 1 9 6 9
Manual Para. 138 f and is taken without substantial change from
the Federal Rule. Rule 404(a) provides, subject to three exceptions,
that character evidence is not admissible to show that a
person acted in conformity therewith.
Rule 404(a)(1) allows only evidence of a pertinent trait of
character of the accused to be offered in evidence by the defense.
This is a significant change from Para. 138 f of the 1969 Manual
which also allows evidence of “general good character” of the
accused to be received in order to demonstrate that the accused is
less likely to have committed a criminal act. Under the new rule,
evidence of general good character is inadmissible because only
evidence of a specific trait is acceptable. It is the intention of the
Committee, however, to allow the defense to introduce evidence
of good military character when that specific trait is pertinent.
Evidence of good military character would be admissible, for
example, in a prosecution for disobedience of orders. The prosecution
may present evidence of a character trait only in rebuttal to
receipt in evidence of defense character evidence. This is consistent
with prior military law.
Rule 404(a)(2) is taken from the Federal Rule with minor
changes. The Federal Rule allows the prosecution to present evidence
of the character trait of peacefulness of the victim “in a
homicide case to rebut evidence that the victim was the first
aggressor.” Thus, the Federal Rule allows prosecutorial use of
character evidence in a homicide case in which self-defense has
been raised. The limitation to homicide cases appeared to be
inappropriate and impracticable in the military environment. All
too often, assaults involving claims of self-defense take place in
the densely populated living quarters common to military life.
Whether aboard ship or within barracks, it is considered essential
to allow evidence of the character trait of peacefulness of the
victim. Otherwise, a substantial risk would exist of allowing unlawful
assaults to go undeterred. The Federal Rule’s use of the
expression “first aggressor” was modified to read “an aggressor,”
as substantive military law recognizes that even an individual
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