The Long Goodbye for Good Military Character

by MAJ Rebecca Farrell

Having an outstanding military record has long been an advantage when charged with a crime in the military justice system because it adds evidence of good military character to the defense counsel’s arsenal of weapons that can create reasonable doubt. Those days may soon come to a close as pending legislation affecting evidentiary rules finally reaches the well of the courtroom.

McCaskill, Ayotte and FischerA new amendment proposed by Senators McCaskill, Ayotte and Fischer prevents the use of good military character evidence in most cases; however, the amendment’s main aim is sexual assault cases. While the language of the amendment is vague, and not significantly different from MRE 404(a) as currently written, the intent is clear: good military character evidence would be available only in cases where the charges draw a direct nexus to said evidence, potentially limiting this oft presented evidence to military-specific offenses only.

The amendment reads:

(g) MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE – Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be modified to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except that evidence of a trait of the military character of an accused may be offered in evidence by the accused when that trait is relevant to an element of an offense for which the accused has been charged.

-Amendment no. S. 2170 to S. 1197)

While the current MRE 404 does not, on its face, refer to good military character evidence, military courts are staunch supporters of such evidence as a relevant character trait to nearly every offense under the UCMJ.  For instance, such evidence has long been held to be relevant and admissible in cases of sexual assault, although limited to testimony in the form of reputation and opinion. Of course, experienced counsel have found creative ways to bootstrap specific character traits and conduct through lengthy and thorough foundational questions.

A reading of the drafters’ analysis of MRE 404 suggests that a “goodbye” to this defense evidence is one 33 years in the making. While the rule’s actual language is nearly identical to Federal Rule of Evidence 404, the MRE drafters chose to clarify their intent concerning good military character evidence within the rule’s analysis.  In doing so, they provide an example of a military-specific offense — disobedience to orders — as an instance where such evidence would be admissible.

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.

-Analysis of the MRE, Rule 404(a)

Despite this effort to limit the defense, courts interpreted the rule broadly when it comes to good military character evidence, reminding all that the drafters’ analysis is not binding.  In early cases, courts interpreted the rule more broadly by extending its application to all drug cases and sex offenses that occurred during service, such as drill instructor and trainee assaults.  United States v. Vandelinder, 20 MJ 41 (CMA 1985) (extending defense to drug cases regardless of whether charged under Art. 92, 134 or 112a); United States v. McNeill, 17 MJ 451 (CMA 1984) (error to exclude military character defense evidence of drill instructor accused against charges of sodomy with officer candidate).  In these cases, the court looked for the equivalent of a service connection to determine admissibility as a relevant character trait.  As time went on, courts opened the door further and placed less importance on a formal connection between the charges and the accused’s service.

The fact that a person has given good, honorable, and decent service to his country is always important and relevant . . . .

United States v. Court, 24 MJ 11 (CMA 1987) (Cox, J. concurring in decision holding that good military character evidence is relevant to officer charged with indecent assault, relying on theory that an accused’s integrity as both an officer and member of the community are called into question by these charges).

Amendment no. S. 2170 seeks to resurrect the language long buried in the advisory analysis and place it in the binding language of the rule itself. In doing so, Congress apparently desires to tell the courts, counsel, and fact-finders to say “goodbye” to the theory that “a good Soldier, Sailor, Airman or Marine would not commit the crimes charged.”  For nearly three decades, counsel have seen this evidence readily admitted under MRE 404; however, they may soon find themselves introduced to new limitations.

3 Responses to “The Long Goodbye for Good Military Character”

  1. It appears to me that Senators are trying to do everything they can to protect victims at all cost even when they are not truly victims. Is This “True Justice”? What are you doing about the so called victims who LIE and it’s very OBVIOUS and PROVEN that they have LIED? Why is there nothing in all of your BILLS being passed to protect the Soldier who is being accused and when they are found INNOCENT to repay them for attorney fees, counseling to restore their families back to order if possible and of course what about their reputation and career that has been tarnished in every possible way. Commanders need to be taken out of the LOOP because there is so much INJUSTICE being commited amongst Soldiers within their own commands. It’s sad and this whole process needs to be reviewed better. I have a friend that has lost everything because of sexual assault lies that were told and even though witnesses testified that she was lying because she was friends with CXO and CG they ruled in her favor and destroyed his career after 23 years of GOOD service. Now where are you Senators and Congress people to help him out and prosecute her for her LIES and DESTRUCTION and restore a GOOD Soldier career? Where are you?

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