Back to the Future? The Admissibility of Post-Offense Uncharged Misconduct to Prove Character

• Author: Major Heather L. Burgess
• Pages: 02

2002] POST-OFFENSE UNCHARGED MISCONDUCT 47

BACK TO THE FUTURE?

THE ADMISSIBILITY OF POST-OFFENSE UNCHARGED MISCONDUCT TO PROVE CHARACTER

MAJOR HEATHER L. BURGESS1

Though this be madness, yet there is method in't.2

I. Introduction

The general prohibition against the use of character evidence in courts-martial is deceptively simple on its face: character evidence is not admissible for the sole purpose of proving that the person acted in conformity therewith on a particular occasion.3 In many cases, however, the exceptions to the rule4 all but eviscerate the general prohibition, often to the clear detriment of the accused.5 Appellate courts interpreting the rules have further complicated matters by applying varied reasoning and reaching inconsistent decisions. As a result, proper application of the rules at the trial level has become an inordinately complex task.6

The general prohibition against character evidence found in Military Rule of Evidence (MRE) 404 is essentially the same as its federal counterpart and is grounded in American common-law practice since the late nin

teenth century.7 Although the prohibition is not universally recognized, at its heart, character evidence is propensity evidence by another name.8 American courts have acknowledged that while such evidence is almost

always relevant, it is also usually highly prejudicial, time consuming, and confusing to the finder of fact.9 As a fundamental proposition in a system of justice that provides a presumption of innocence, an accused should be convicted of committing a specific criminal offense, not for having a particular personal history or allegedly evil character.10 The general prohibition against the admission of character evidence preserves this constitutionally based guarantee.11

In virtually all cases, the government seeks to introduce character evidence under MRE 404 that predates the charged offense, and, not surprisingly, the majority of appellate decisions analyzing the rule are devoted to instances of prior uncharged misconduct. On those limited occasions in which the admissibility of post-offense uncharged misconduct has been raised at the appellate level, courts have largely applied the same analysis used for prior uncharged misconduct, and found the evidence admissible.12

Similarly, legal scholars have offered limited specific analysis of post-offense misconduct, apparently finding no basis for excluding the evidence if it otherwise appears to satisfy the requirements of the rules.13

Contrary to these general positions, this article specifically argues that post-offense uncharged misconduct should be inadmissible to prove mens rea under MRE 404(b). First, the article briefly explains the general operation of the character evidence rules in courts-martial. Second, it analyzes the still unsettled issue of the admissibility of post-offense uncharged misconduct in military courts after United States v. Matthews,14 United States v. Young,15 and United States v. Wright.16 Third, the article closely examines the theories that courts have relied on to admit post-offense misconduct evidence. Fourth, the article then argues that the theories for admitting post-offense uncharged misconduct to prove intent or knowledge allow otherwise prohibited propensity evidence to taint the court-martial process and make application of the character rules at the trial level unnecessarily complex. Finally, the article recommends amending MRE 404(b) to exclude specifically post-offense uncharged misconduct as proof of intent or knowledge.

II. Making Sense of the Character Evidence Rules

1. The Problem of Defining Character Evidence

   To understand how the general prohibition against the use of character evidence operates in courts-martial requires a workable concept of the type of evidence the rules are designed to proscribe. Although not specifically defined, the term character in the rules appears synonymous with propensity.17 The resulting dichotomy makes the rules both complicated to apply and inherently contradictory.18 On the one hand, the common understand-

   ing of the term character requires reference to the tendency of an accused to commit bad acts. On the other, the finder of fact is not permitted to consider character evidence for that purpose. This inherent contradiction, coupled with the acknowledged power of character evidence,19 has made the character evidence rules the subject of more published opinions than any other evidentiary issue.20

   Legal scholars have devoted substantial effort to defining the acceptable limits of character evidence within the rules.21 Unfortunately, the type of evidence the character rules permit is not what one would expect from the commonly understood use and definition of the term. There is an apparent consensus that the term character has a "moral overtone, which connotes something good or bad about a person."22 At the same time, finders of fact are specifically prohibited from using evidence admitted under the character rules to determine that the accused is a bad person, and that because the accused is a bad person, that he acted as such on the occasion in question.23 If the fact that the accused is a bad person-his moral char-acter-is not to be taken into account, of what possible relevance is character evidence to the finder of fact for MRE 404(b) purposes?24 A review of how the character evidence rules operate illustrates the counterintuitive

   inferences required to make the various types of character evidence both logically and legally relevant, and therefore admissible. The complex reasoning behind these inferences makes proper application of the rules at the trial level a difficult task, and leads to inconsistent outcomes in what should be a uniform military justice system.25

2. MRE 404(a): The Accused, the Victim, and the Witness

   Military Rule of Evidence 404(a) begins with a blanket exclusion of the type of evidence commonly associated with the term character: evidence introduced to show the person's character, and that he therefore "acted in conformity [with that character] on a particular occasion."26

   Rule 404(a) goes on, however, to provide three specific exceptions allowing introduction of character evidence of the accused, victim, and witnesses.27

   1. The Defense of Good Military Character Under MRE 404(a)(1): Opening the Door, or Slamming It Shut?

      Military Rule of Evidence 404(a)(1) permits an accused to introduce evidence of a "pertinent" character trait.28 Although adapted from the parallel Federal Rule of Evidence (FRE) 404(a)(1), the rule has far broader application in military courts-martial than in the federal system.29 The expansive use of the provision derives from the rule's use as the basis for the defense of "good military character" to a wide array of court-martial offenses. The adoption of MRE 404(a)(1) from the federal rule was, on its face, a "significant departure" from the 1969 Manual provision,30 which

      had permitted "evidence of 'general good character' of the accused to be received in order to demonstrate that the accused is less likely to have committed a criminal act."31

      The apparent intent of the drafters of MRE 404(a)(1) was to limit the admissibility of good military character evidence on the merits to duty-related offenses.32 Instead, military courts have liberally interpreted the term pertinent, permitting the defense to introduce evidence of the accused's good military character for essentially all offenses.33 Some have criticized the military courts' permissive approach, arguing that the defense of military character, by its very nature, tilts the scales in favor of acquittal for a higher-ranking accused.34

      More problematic, at least to understanding the admissibility of character evidence generally, is the essential premise of the good soldier defense at the merits phase of a court-martial: because SGT X is a "good soldier," he is less likely to have committed the charged offense. Evidence of good military character, in the context of a non-military specific offense, is precisely the type of evidence the rule purports to prohibit, as it is offered to prove that the person acted in conformity therewith on a particular occasion.35 Such evidence is deemed wholly admissible, however, and is commonplace in modern courts-martial.36

      Despite this expansive approach, the defense of good military character has perils and pitfalls that can significantly outweigh its potential benefit to the accused. First, other than the accused's own testimony, proof of good military character is limited to reputation or opinion evidence, which often sounds stilted and does not permit discussion of specific instances of the accused's good conduct.37 Second, once the accused places a specific character trait in issue, MRE 404(a)(1) permits the prosecution to present evidence in rebuttal.38 Although military courts liberally interpret the word pertinent to permit the defense of good military character, they apply an equally liberal standard to the scope of government rebuttal, and have rejected multiple defense attempts to limit direct testimony.39 Given the sweeping on- and off-duty nature of the term good military character, an accused offers the defense at the substantial risk that every minor pre-trial infraction will become the subject of potentially damaging cross-examination.40

   2. Character of the Victim: MRE 404(a)(2)

      As is the case with evidence of his own character under MRE 404(a)(1), the accused controls whether evidence of the victim's character may be introduced at court-martial.41 Military Rule of Evidence 404(a)(2) generally permits the accused to introduce evidence of a pertinent character trait of the victim.42 In cases of homicide and assault, the rule specif

      cally allows evidence of the victim's character for violence, on the theory that such a character trait would have made the victim more likely to be the aggressor in a particular case. 43 The prosecutor's response has...