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).
(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
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