In Defense of the Good Soldier Defense

• Author: Randall D. Katz & Lawrence D. Sloan
• Pages: 03

2001] GOOD SOLDIER DEFENSE 117

IN DEFENSE OF THE GOOD SOLDIER DEFENSE1

RANDALL D. KATZ2 & LAWRENCE D. SLOAN3

The trial counsel . . . in a court-martial at Fort Anywhere has presented the government's case-in-chief. . . . The government rests and trial counsel prepares to "cut another notch in the handle of his pistol," quite secure in the knowledge that the facts will carry the day. The defense case consists of four witnesses-the accused's platoon sergeant, platoon leader, first sergeant, and company commander. Collectively, they testify that the accused is the best soldier they have ever seen; that he sets the example for his peers, subordinates, and superiors; and that on a scale of one to ten . . . the accused is nothing less than a nine. The defense case never remotely addresses the facts of the alleged drug offenses. In final argument . . . [d]efense counsel argues that before a finding of guilty can be returned the members must be convinced of the accused's guilt beyond a reasonable doubt and that the character evidence he presented raises such a doubt. . . . Approximately fifteen minutes later the members return and announce the finding: Not Guilty.4

1. Introduction

   The above example illustrates the potential impact of the good soldier defense on the results of a court-martial. What is commonly referred to as the good soldier defense involves the presentation by an accused service

   member of evidence that highlights his good military character in an effort to convince members of the court-martial panel that he did not commit the crime of which he is accused. The accused submits written performance evaluations and oral testimony during trial to showcase his good military character. The military justice system has a strong tradition of permitting this evidence to be considered at courts-martial; such evidence has been permissible for almost seventy-five years. Recently, however, there has been increased criticism of the good soldier defense. While there are certainly valid arguments that can be made for both retaining and prohibiting the defense, the authors of this article believe that the good soldier defense serves a valid purpose and should be maintained.

   Part II of this article begins with an overview of the contours and operation of the good soldier defense. It discusses Military Rule of Evidence (MRE) 404(a), which permits the introduction of evidence of good military character, and the manner in which the courts have interpreted this rule. Part II concludes with a comparison of MRE 404(a) and its counterpart in the Federal Rules of Evidence (FRE). Part III then turns to a discussion of the controversy surrounding the good soldier defense. This section advances four arguments that weigh strongly in favor of maintaining the good soldier defense, and then identifies the primary arguments raised by the critics of the defense. While these criticisms appear valid on their face, they can all be credibly rebutted.

2. The Good Soldier Defense

   A. What is the Good Soldier Defense?

   What is commonly termed the "good soldier defense" refers to an accused service member's introduction of evidence of good military character in an attempt to convince the military judge or members that he did not commit the offense for which he is charged. Generally, the introduction of evidence of a defendant's good military character is intended to provide the basis for an inference that the accused is too professional a soldier to have committed the offense with which he is charged.5 The good soldier defense is not an affirmative defense. It will not be sufficient to exonerate a service member who is shown or admits to having committed all the el

   ments of the crime for which he is charged.6 Instead, defense counsel rely on the good soldier defense to create sufficient doubt in the minds of the judge or jury such that they could find reasonable doubt that the accused committed the charged offense.7

   The Supreme Court has recognized that evidence of the character of the accused "alone, in some circumstances, may be enough to raise a reasonable doubt of guilt."8 This quoted language has been incorporated into the military judge's instructions related to character evidence.9 It is obviously preferable for the defense to utilize other means of creating doubt regarding the accused's guilt in addition to character evidence, but the defense may create sufficient doubt relying solely on character evidence. Therefore, although the good soldier defense is not an affirmative defense, the accused may rely solely on good character evidence for his defense.

   One must remember that the military trial process is a bifurcated one in which the determination of guilt or innocence is separate from sentencing.10 While evidence of good military character can be relevant at both stages of the process, the good soldier defense refers generally to use of evidence of good military character during the assessment of guilt or innocence. 11 Thus, the following discussion of the good soldier defense specifically addresses the use of character evidence for the purpose of assessing the guilt or innocence of the accused. Even though similar evidence bearing on the character of the accused may be introduced at both phases of the process, there is not much criticism of the use of such evidence during the sentencing phase. The use of character evidence by a guilty defendant, in order to mitigate the harshness of his punishment du

   ing the sentencing phase, is a far less controversial practice and will not be the focus of this article.

   Typically, the defense presents character evidence through the live testimony of superior officers of the accused, or from associates of the accused. In United States v. Vandelinder,12 the Court of Military Appeals (COMA) (the predecessor of the Court of Appeals for the Armed Forces (CAAF)) made it clear that in addition to live testimony, enlisted performance reports could be admitted as evidence of good military character. Writing for the Vandelinder majority, Chief Judge Everett pointed out that:

   The admissibility of these opinions [about a service member's military character contained in Enlisted Performance Reports] fulfills an important purpose . . . by permitting a service-member to reap the benefits of the "good military character" he has demonstrated in years past, even though because of death, distance, or other reasons, his former superiors and associates may be unavailable to testify for him at his trial.13

   Specific instances of conduct described on the reports, however, cannot be admitted14 per MRE 405(a) and (b).15 Standard military appraisal forms contain five categories: (1) professional performance,16 (2) military behavior,17 (3) leadership and supervisory ability,18 (4) military appearance,19 and (5) adaptability.20 All of these categories, however, may not be admissible for good soldier defense purposes. Chief Judge Everett observed: "Admittedly, a diversity of views may exist as to the precise limits of 'good military character.' Perhaps, it does not include all the five 'traits' rated on the Reports of Enlisted Performance; or perhaps it includes

   additional 'traits.'"21 Ultimately, the discretion lies with the military judge in each individual case to discern which categories are relevant to a pertinent trait.

   B. When Is the Good Soldier Defense Available?

   Military Rule of Evidence 404(a) permits the admissibility of evidence of good military character during the trial phase of a court-martial. To properly comprehend MRE 404, one must have a basic understanding of the history of character evidence in the military justice system. Prior to the enactment of the MRE in 1980, paragraph 138f of the 1969 Manual for Courts-Martial addressed the admissibility of character evidence and provided:

   To show the probability of his innocence, the accused may introduce evidence of his own good character, including evidence of his military record and standing as shown by authenticated copies of efficiency or fitness reports or otherwise and evidence of his general character as a moral, well-conducted person and law abiding citizen. However, he may not, for this purpose, introduce evidence as to some specific trait of character unless evidence of that trait would have a reasonable tendency to show that it was unlikely that he committed the offense charged. For example, evidence of good character as to peaceableness would be admissible to show the probability of innocence in a prosecution for any offense involving violence, but it would not be admissible for such a purpose in a prosecution for a nonviolent theft.22

   This paragraph provided defense counsel a great deal of leeway in presenting character evidence. Such a favorable disposition to the admissibility

   of character evidence is consistent with the practice and tradition of the military justice system.

   The first Manual for Courts-Martial (Manual) to specifically provide for the introduction of character evidence was the 1928 Manual.23 Paragraph 113b of the 1928 Manual stated, "The accused may introduce evidence of his own good character, including evidence of his military record and standing, in order to show the probability of his innocence."24 The 1949 Manual expanded on this provision with language very similar to that quoted from the 1969 Manual in the preceding paragraph.25 The early precedents set by the COMA support the conclusion that courts-martial have traditionally been very receptive to the introduction of character evidence by the accused.26 Thus, courts-martial historically permitted the accused

   to introduce evidence of specific traits and evidence of general good character as a soldier.27

   Following this long-standing history of permitting nearly all forms of character evidence to be introduced in courts-martial, MRE 404(a) was enacted. The rule provides:

   (a) Character evidence generally. Evidence of a person's character or a trait of a person's...