CORE CRIMINAL LAW SUBJECTS: Evidence: Balancing

2007


United States v. Bare, 65 M.J. 35 (the following nonexhaustive list of factors is relevant to a MRE 403 balancing analysis:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties).


2006

 

United States v. Barnett, 63 M.J. 388 (in conducting a MRE 403 balancing test, a military judge should consider the following factors: the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the factfinder; the time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties). 

 

(even assuming that the evidence of the accused’s prior uncharged misconduct with a female coworker was logically relevant in a prosecution arising from his alleged sexual harassment of four female trainees, the probative value of such evidence did not substantially outweigh the danger of unfair prejudice where the probative value on the issue of consent was marginal at best and where the specter of unfair prejudice was raised by testimony that the accused had made advances toward the Marine wife of another Marine and had made comments with racial overtones; the military judge’s limiting instruction could not eliminate the unfair prejudice in light of the low probative value of the evidence coupled with the nature of the prejudice).  

 

United States v. James, 63 M.J. 217 (MRE 403 is designed specifically to address the unduly prejudicial impact of otherwise admissible evidence and gives military judges broad discretionary powers to ensure that the probative value of evidence is not outweighed by the danger of unfair prejudice; a careful MRE 403 balancing is an essential ingredient of a constitutional application of MRE 413 and MRE 414, rules that permit the admission of evidence of similar crimes in sexual assault and child molestation cases; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence). 

 

United States v. Tanner, 63 M.J. 445 (evidence under MRE 414 is subject to a balancing test pursuant to MRE 403, under which relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members). 

  

United States v. Moss, 63 M.J. 233 (admission of specific acts of bias is dependent upon the military judge properly evaluating the evidence’s probative value against its potential for unfair prejudice as measured by MRE 403).

 

(the probative value of the evidence that alleged child victim had been beaten by her mother, had used alcohol and drugs, had been expelled from school, had attempted suicide, had committed general acts of disobedience, and was unhappy with her restrictive home environment was high where it directly fit the defense theory for which it would have been offered; on the other hand, the risk of unfair prejudice in this case was fairly low; although the evidence was probative to the defense theory, it was a double-edged sword that also could have hurt appellant’s case; when viewed in context of the timing of the events, the alleged child victim’s prior bad acts could have been seen as evidence of post-traumatic stress disorder stemming from the alleged rape; thus, the danger of unfair prejudice in this case did not significantly outweigh the probative value of admitting the evidence).


2005


United States v. Berry, 61 M.J. 91 (in conducting the MRE 403 balancing test, a military judge should consider the following factors:  the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the factfinder; the time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties).

 

2004

 

United States v. Traum, 60 MJ 226 (however relevant and reliable an expert’s testimony might be, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members).

 

2002

United States v. Tyndale, 56 MJ 209 (a military judge enjoys wide discretion in balancing under Mil.R.Evid. 403, and where the military judge properly weighs the evidence under this rule and articulates the reasons for admitting the evidence, the military judge will be reversed only for a clear abuse of discretion).

United States v. Humpherys, 57 MJ 83 (military judge has wide discretion in applying Mil.R.Evid 403, and Court of Appeals for the Armed Forces exercises great restraint in reviewing a military judge’s 403 ruling if his reasoning is articulated on the record; when the military judge fails to explain the grounds for denying a Rule 403 objection, his ruling is not entitled to such deference).

(although the military judge did not articulate his reasons for concluding that any prejudicial effect of the testimony did not substantially outweigh its probative value, Court of Appeals for the Armed Forces may determine that the record permits it to conduct the required balancing during appellate review).

2001

United States v. Hursey, 55 MJ 34 (when a military judge conducts a proper balancing test under Mil. R. Evid. 403, the evidentiary ruling will not be overturned unless there is a clear abuse of discretion; when the military judge fails to articulate a balancing analysis on the record, the ruling is accorded less deference).

United States v. Bailey, 55 MJ 38 (in balancing under Mil. R. Evid. 403, the military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (see Mil. R. Evid. 413) where that judge considered the following factors in conducting the balancing test:  proximity; similarity to the charged event; the rate of frequency of the other acts; surrounding circumstances, relevant intervening events; and other relevant similarities or differences).

(military judge did not abuse his discretion by admitting prior forcible acts of sodomy with others as propensity evidence (Mil. R. Evid. 413); in reviewing the trial judge’s Mil. R. Evid. balancing test, the court considered the following factors which were supported by the record:  temporal proximity; similarity to the event charged; frequency of the acts; presence of lack of intervening circumstances; the strength of proof of the act; the trial time needed for proof of the prior act; distraction to factfinder; potential for less prejudicial evidence; and that probative weight of the evidence).

(where the trial judge does not articulate his Mil. R. Evid. balancing analysis on the record, that ruling is given less deference than a ruling where the underlying analysis is fully articulated on the record).

United States v. Dewrell, 55 MJ 131 (military judge’s careful and reasoned analysis on the record satisfied the constitutional requirement that evidence offered under Mil. R. Evid. 413 be subjected to a thorough balancing test pursuant to Mil. R. Evid. 403).

(when the judge does not articulate the balancing analysis on the record, his evidentiary ruling is given less deference than where the balancing analysis is fully articulated on the record).

United States v. Young, 55 MJ 193 (a military judge enjoys wide discretion under Mil. R. Evid. 403, and where he properly weighs the evidence under Mil. R. Evid. 403 and articulates the reasons for admitting the evidence, his decision will be reversed only for a clear abuse of discretion).

United States v. Dimberio, 56 MJ 20 (even though evidence may be logically relevant under Mil.R.Evid. 401, it may be excluded under Mil.R.Evid. 403 as not legally relevant if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay).

(rules such as Mil.R.Evid. 403 and 404(a) that exclude evidence from criminal trials do not abridge an accused’s constitutional right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve and do not infringe upon a weighty constitutional interest of the accused).

(in the absence of character evidence that appellant’s wife’s mental health problems were tied to violent acts, the introduction of a mental health diagnosis that she did not handle stress well was both speculative and potentially confusing to the members; nor was appellant’s proffer with respect to this evidence precise in describing limitations to the potential expert testimony; the evidence was thus inadmissible under Mil.R.Evid. 403).

2000

United States v. Smith, 52 MJ 337 (decision to admit or exclude evidence under MRE 403 is imparted to the sound discretion of the military judge; an explanation of his ruling is preferred, but has not been required as a predicate for appellate review).

United States v. Wright, 53 MJ 476 (MRE 413, “Evidence of similar crimes in sexual assault cases”, creates an exception to MRE 404(b)’s general prohibition against the use of a defendant’s propensity to commit crimes and is subject to the balancing test of MRE 403).

(before admitting evidence under MRE 413, “Evidence of similar crimes in sexual assault cases”, the military judge must apply a balancing test under MRE 403 and consider the following non-exclusive factors:  (1) strength of proof of prior acts; (2) probative weight of evidence; (3) potential for less prejudicial evidence; (4) distraction of factfinder; (5) time needed for proof of prior conduct; (6) temporal proximity; (7) frequency of the acts; (8) presence or lack of intervening circumstances; and (9) the relationship between the parties).

United States v. Glover, 53 MJ 366 (military judge admitted evidence of two prior bad check convictions which were over ten years old; if he did so in reliance on his conclusion that MRE 403 did not apply to evidence introduced at sentencing, he erred.  See RCM 1001(b)(3) and Analysis thereto).

(where military judge properly balances probative value of alleged threats made by appellant against their prejudicial impact, articulates the reasons for admitting/excluding the evidence, and gives carefully crafted limiting instructions, the military judge will only be reversed for clear abuse of discretion).

United States v. Browning, 54 MJ 1 (if a military judge weighs and excludes evidence under MRE 403, an appellant has the burden of coming forward with conclusive argument that the military judge abused his discretion; the military judge will not be reversed unless there is a clear abuse of discretion).

United States v. Baumann, 54 MJ 100 (evidence of prior sexual misconduct by appellant with young siblings in his family could highly prejudice appellant’s defense that he did not sexually molest his own daughter; in light of potential for prejudice and confusion of issues, and in view of the reduced probative value of such evidence as an explanation for why appellant’s wife sought a divorce, military judge abused his discretion by admitting the challenged evidence (MRE 403)).

(erroneous admission of evidence, over defense objection under MRE 403 was harmless error where, considered in light of the record of trial and the criteria set forth in United States v. Weeks, 20 MJ 22, 25 (CMA 1985), the evidence of guilt was overwhelming, the asserted defense was extremely weak (if a defense at all), and the military judge gave extensive limiting instructions).

(the burden is on the government to show that erroneous admission of evidence, over defense objection under MRE 403 did not materially prejudice the substantial rights of the appellant).

United States v. Manns, 54 MJ 164 (sentencing evidence, like all other evidence, is subject to the balancing test of Mil. R. Evid. 403).

(military judge has wide discretion in applying the balancing test of Mil. R. Evid. 403, and ordinarily appellate courts will exercise great restraint in reviewing a judge’s decisions under Rule 403).

(when a military judge conducts a proper balancing test under Mil. R. Evid. 403, the ruling will not be overturned unless there is a clear abuse of discretion; less deference is given to military judges if they fail to articulate their balancing analysis on the record; no deference is given to military judges if they fail to conduct a required Rule 403 balancing test).

(prosecution sentencing evidence containing admissions by appellant that he had used marijuana, committed adultery, used prostitutes, and obsessed over sex was not “overkill” subject to exclusion under Mil. R. Evid. 403 in a bench trial where the potential for unfair prejudice was substantially less that it would be in a trial with members; court was satisfied that military judge was able to sort through the evidence, weigh it, and give it appropriate weight).

United States v. Tanksley, 54 MJ 169 (a judge’s decision to admit evidence under Mil. R. Evid. 403 is reviewed for abuse of discretion; the military judge enjoys wide discretion when applying Mil. R. Evid. 403, and where he conducts and announces his balancing test on the record a reviewing court will exercise great restraint in reviewing his decision and give him maximum deference in determining whether there is a clear abuse of discretion).

1999

United States v. Graham, 50 MJ 56 (any relevance associated with prior positive urinalysis outweighed by danger of prejudice).

United States v. Gray, 51 MJ 1 (photographs of appellant’s victims were not unduly gruesome and prejudicial in multiple, violent murder case, and probative value was not substantially outweighed by prejudicial effect).

United States v. Whitner, 51 MJ 457 (challenged evidence of homosexual videotape and similar materials was proffered on important/viable issues pertaining to appellant’s state of mind or intent during the charged offenses and the nature of his sexual desires at the time; defense’s failure to specifically contest the intent issues did not remove the government’s burden of proof on these elements of the offenses or render this evidence unduly prejudicial).

(challenged evidence of homosexual videotape and similar materials did not have diminished probative value where:  (1) defense claimed appellant could not remember what happened on night in question; (2) defense claimed alleged victim was presenting patently false details in his testimony which should cause it to be rejected in its entirety; (3) the defense made an alternate concession that the alleged victim may have consented to oral sodomy with “somebody”; and (4) suggestion that conduct was consensual was vague and equivocal, thus not clearly removing issue of intent from this case).

(challenged evidence of homosexual videotape and similar materials did not have diminished probative value because it was cumulative where:  (1) appellant’s pretrial admissions were more generic; (2) appellant’s pretrial admissions were undermined by appellant’s claims that he was too drunk to remember his actions and intentions on the night in question; (3) the challenged evidence was specific in nature; and, (4) the challenged evidence had a nexus to the charged offenses).

(challenged evidence of homosexual videotape and similar materials was not unduly prejudicial where:  (1) despite the coercive homosexual acts portrayed in some of the challenged materials, appellant was found not guilty of forcible offenses; (2) appellant did not actively dispute overwhelming proof of participation in lesser offenses; and, (3) the military judge gave repeated limiting instructions).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site