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

App. 22, M.R.E. 404(a) APPENDIX 22
who is properly exercising the right of self-defense may overstep
and become an aggressor. The remainder of Rule 404(a)(2) allows
the defense to offer evidence of a pertinent trait of character of
the victim of a crime and restricts the prosecution to rebuttal of
that trait.
Rule 404(a)(3) allows character evidence to be used to impeach
or support the credibility of a witness pursuant to Rules 607–609.
2004 Amendment: Subdivision (a) was modified based on the
amendment to Fed. R. Evid. 404(a), effective 1 December 2000,
and is virtually identical to its Federal Rule counterpart. It is
intended to provide a more balanced presentation of character
evidence when an accused attacks the victim’s character. The
accused opens the door to an attack on the same trait of his own
character when he attacks an alleged victim’s character, giving
the members an opportunity to consider relevant evidence about
the accused’s propensity to act in a certain manner. The words “if
relevant” are added to subdivision (a)(1) to clarify that evidence
of an accused’s character under this rule must meet the requirements
of Mil. R. Evid. 401 and Mil. R. Evid. 403. The drafters
believe this addition addresses the unique use of character evidence
in courts-martial. The amendment does not permit proof of
the accused’s character when the accused attacks the alleged
victim’s character as a witness under Rule 608 or 609, nor does it
affect the standards for proof of character by evidence of other
sexual behavior or sexual offenses under Rules 412-415.
(b) Other crimes, wrongs, or acts. Rule 404(b) is taken without
change from the Federal Rule, and is substantially similar to the
1969 Manual rule found in Para. 138 g. While providing that
evidence of other crimes, wrongs, or acts is not admissible to
prove a predisposition to commit a crime, the Rule expressly
permits use of such evidence on the merits when relevant to
another specific purpose. Rule 404(b) provides examples rather
than a list of justifications for admission of evidence of other
misconduct. Other justifications, such as the tendency of such
evidence to show the accused’s consciousness of guilt of the
offense charged, expressly permitted in Manual Para. 138 g(4),
remain effective. Such a purpose would, for example, be an acceptable
one. Rule 404(b), like Manual Para. 138 g, expressly
allows use of evidence of misconduct not amounting to conviction.
Like Para. 138 g, the Rule does not, however, deal with use
of evidence of other misconduct for purposes of impeachment.
See Rules 608-609. Evidence offered under Rule 404(b) is subject
to Rule 403.
1994 Amendment. The amendment to Mil. R. Evid. 404(b) was
based on the 1991 amendment to Fed. R. Evid. 404(b). The
previous version of Mil. R. Evid. 404(b) was based on the now
superseded version of the Federal Rule. This amendment adds the
requirement that the prosecution, upon request by the accused,
provide reasonable notice in advance of trial, or during trial if the
military judge excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
Minor technical changes were made to the language of the Federal
Rule so that it conforms to military practice.
Rule 405 Methods of proving character
(a) Reputation or opinion. Rule 405(a) is taken without change
from the Federal Rule. The first portion of the Rule is identical in
effect with the prior military rule found in Para. 138 f(1) of the
1969 Manual. An individual testifying under the Rule must have
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an adequate relationship with the community ( see Rule 405(c)),
in the case of reputation, or with the given individual in the case
of opinion, in order to testify. The remainder of Rule 405(a)
expressly permits inquiry or cross-examination “into relevant specific
instances of conduct.” This is at variance with prior military
practice under which such an inquiry was prohibited. See, Para.
138 f(2), MCM, 1969 (Rev.) (character of the accused). Reputation
evidence is exempted from the hearsay rule, Rule 803(21).
(b) Specific instances of conduct. Rule 405(b) is taken without
significant change from the Federal Rule. Reference to “charge,
claim, or defense” has been replaced with “offense or defense” in
order to adapt the rule to military procedure and terminology.
(c) Affidavits. Rule 405(c) is not found within the Federal Rules
and is taken verbatim from material found in Para. 146b of the
1969 Manual. Use of affidavits or other written statements is
required due to the world wide disposition of the armed forces
which makes it difficult if not impossible to obtain witnesses—
particularly when the sole testimony of a witness is to be a brief
statement relating to the character of the accused. This is particularly
important for offenses committed abroad or in a combat
zone, in which case the only witnesses likely to be necessary
from the United States are those likely to be character witnesses.
The Rule exempts statements used under it from the hearsay rule
insofar as the mere use of an affidavit or other written statement
is subject to that rule.
(d) Definitions. Rule 405(d) is not found within the Federal Rules
of Evidence and has been included because of the unique nature
of the armed forces. The definition of “reputation” is taken generally
from 1969 Manual Para. 138 f(1) and the definition of “community”
is an expansion of that now found in the same paragraph.
T h e d e f i n i t i o n o f “ c o m m u n i t y ” h a s b e e n b r o a d e n e d t o a d d
“regardless of size” to indicate that a party may proffer evidence
of reputation within any specific military organization, whether a
squad, company, division, ship, fleet, group, or wing, branch, or
staff corps, for example. Rule 405(d) makes it clear that evidence
may be offered of an individual’s reputation in either the civilian
or military community or both.
Rule 406 Habit; routine practice
Rule 406 is taken without change from the Federal Rule. It is
similar in effect to Para. 138h of the 1969 Manual. It is the intent
of the Committee to include within Rule 406’s use of the word,
“organization,” military organizations regardless of size. See Rule
405 and the Analysis to that Rule.
Rule 407 Subsequent remedial measures
Rule 407 is taken from the Federal Rules without change, and
has no express equivalent in the 1969 Manual.
Rule 408 Compromise and offer to compromise
Rule 408 is taken from the Federal Rules without change, and
has no express equivalent in the 1969 Manual.
Rule 409 Payment of medical and similar
expenses
Rule 409 is taken from the Federal Rules without change. It
has no present military equivalent and is intended to be applicable
to courts-martial to the same extent that is applicable to civilian