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.
A 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.