The "good soldier" defense: character evidence and military rank at courts-martial.

• Author: Hillman, Elizabeth Lutes

1. INTRODUCTION: RANK AND ITS PRIVILEGES

   In 1998, the court-martial of former Sergeant Major of the Army Gene McKinney focused national attention on the "good soldier" defense.(1) McKinney's adroit use of his past service as a "good soldier" was widely credited for his acquittal on all charges of sexual misconduct, in spite of damning testimony from six servicewomen about his alleged harassment.(2) The McKinney trial, combined with a series of sex scandals involving the U.S. armed forces,(3) raised the profile of the military justice system, a separate criminal and administrative jurisdiction with authority over 1.4 million active-duty servicemembers.(4) Accused servicemembers, unlike civilian criminal defendants, are permitted to introduce evidence of their "good military character" during the guilt phase of courts-martial,(5) McKinney took full advantage of this military evidentiary doctrine by parading former superiors and subordinates before the court-martial panel to testify about his sterling character and soldierly behavior.(6) Acquitted on all counts except one charge of obstruction of justice,(7) McKinney was sentenced to a minor reduction in rank, a sentence that had no impact on his military pay and benefits in retirement.(8) A commonly used and frequently effective defense tactic at courts-martial,(9) the defense that worked so well for McKinney has disturbing implications for the roles of rank, gender, and race in military justice.

   The broad availability of the good soldier defense is supported by many legal doctrines and policy arguments, but none withstand close analysis. Cloaked in the mantle of longstanding court-martial tradition, justified by doctrines of questionable salience, and preserved by judges resistant to the Military Rules of Evidence's limitations on character evidence, the good soldier defense advances the perception that one of the privileges of high rank and long service is immunity from conviction at court-martial. The defense privileges a certain type of accused servicemember--a person of high rank and reputation in the military community--at the expense of the overall fairness of the court-martial system. By permitting the introduction of good military character evidence during the guilt phase of a court-martial, the good soldier defense encourages factfinders to focus on the reputation of accused individuals rather than on their alleged criminal acts. In a system already marked by extraordinary discretion, from a commander's decision about whether and how to bring criminal charges to the separate sentencing phase of trial,(10) the good soldier defense undercuts the military justice system's commitment to an objective trial process by adding an element of subjectivity to the merits phase of a court-martial.

   In order to analyze the good soldier defense, Part II begins with a description of the defense, examining both the evidentiary doctrine that permits liberal admission of "good military character" evidence at courts-martial and the comparable civilian doctrine and practice. Part III reviews and critiques the legal and public policy justifications for the good soldier defense, Part IV discusses the shifting definitions of a "good soldier," and Part V explores the good soldier defense in practice. Finally, Part VI highlights the disparate benefits of the good soldier defense, revealing how servicemembers of high rank can escape censure by bringing character rather than facts to center stage at courts-martial.

2. THE "GOOD SOLDIER" DEFENSE

   1. Military Rule of Evidence 404(a)(1)

      The "good soldier" defense refers to an accused servicemember's introduction of evidence of good military character in order to convince a military judge or jury that the accused did not commit the offense charged.(11) In addition to the implicit use of character evidence at the beginning of the investigative process, when a commander must decide whether to bring charges, and its explicit use at the end of trial, when a court-martial must determine an appropriate sentence,(12) generic good character evidence is admitted on the merits under Military Rule of Evidence 404(a)(1):

      (a) Character evidence generally. Evidence of a person's character or a trait of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except: (1) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same.(13) Intended to limit the circumstantial use of character evidence,(14) Rule 404(a)(1) makes an exception for "evidence of a pertinent trait."(15) In courts-martial, the 404(a)(1) exception has been interpreted to permit evidence of general "good military character," as well as proof of pertinent character traits, to be admitted on the merits.(16) Evidence admitted under the exception "is aimed at creating the inference that because the accused is a person of good character and people of good character do not commit crimes, the accused must not have committed the crimes charged."(17) Such good character evidence may raise sufficient doubt about the accused's guilt in the minds of factfinders to prevent a criminal conviction.(18)

   2. Character Defenses in Civilian Criminal Trials

      The good soldier defense exists only in courts-martial; an accused civilian cannot be a "good soldier." Accordingly, even though Federal Rule of Evidence 404(a)(1) is identical to Military Rule of Evidence 404(a)(1), the admissibility of character evidence in courts-martial differs from evidentiary practice in civilian trials. In both courts-martial and civilian trials, the defendant may introduce "pertinent" character evidence that may, by itself, create a reasonable doubt as to the accused's guilt,(19) However, only at courts-martial may evidence of "good military character" be admitted under the 404(a)(1) exception.(20)

      Despite this difference in the content of military and civilian character evidence, the use of character evidence in both civilian trials and courts-martial is limited by a strong presumption against propensity evidence. Propensity evidence is evidence offered to prove that because a defendant tended to act a certain way in the past, he probably acted that way in committing, or not committing, an alleged crime. The limits on propensity evidence prevent a prosecutor from using evidence of the defendant's bad character to win a conviction and restrict a defendant's ability to use good character to win acquittal.(21) Some scholars have argued that character evidence is probative in determining the guilt of an accused.(22) Nonetheless, American jurisprudence has rejected the premise that a defendant's bad or good character can serve as an acceptable basis for conviction or acquittal(23) Proof of guilt in a criminal trial depends on establishing that a defendant committed the charged offense, not that the accused is a bad person and thus likely to have committed a crime.(24) Permitting an accused to use her good character as a defense poses less risk of injustice than allowing prosecutors to introduce bad character evidence, but the criminal law's emphasis on punishing acts rather than status(25) limits both practices.(26) Civilian judges respect both sides of the propensity doctrine by restraining prosecutors from introducing character evidence to prove that a defendant acted "in conformity therewith"(27) in committing the alleged crime and by allowing defendants to introduce only evidence of specific traits, such as truthfulness or law-abidingness, rather than evidence of general good character.(28)

   3. Character Defenses in Courts-Martial

      Unlike civilian criminal defendants, accused service members may almost always get evidence of their good military character admitted at court-martial, subject to the ruling of the military judge. Courts-martial have stretched the exception to allow more liberal use of character evidence than is generally permitted in civilian courts.(29) In addition, the Military Rules are applied at the discretion of judges, and reversal of evidentiary decisions by appellate courts is the exception rather than the rule.(30) Military judges routinely admit genetic good character evidence under the broad category of evidence of "good military character" that would not be admitted at a civilian trial.

      This difference in evidentiary practice is partly due to the distinctive objectives of the military justice system. A court-martial resembles a civilian criminal trial in many respects, but "military due process" carries different protections than the civilian due process guaranteed under the Fifth and Fourteenth Amendments.(31) Courts-martial are part of a disciplinary scheme relied upon to maintain good order among troops, to preserve the obedience and conformity deemed necessary to successful military action, and to eliminate from the military those individuals who pose a risk to other servicemembers or to national security itself.(32) Because of the special objectives of military justice, active duty military officers, not an independent Article III judiciary, preside over courts-martial.(33) Servicemembers are chosen to serve as jurors by a commanding officer, not by a random or arbitrary selection process;(34) and a broader variety of acts are deemed criminal under military law than under civilian criminal codes.(35)

      The good soldier defense takes advantage of this special military context by emphasizing an accused's loyalty to the armed forces and past military performance. The defense counters evidence of wrongdoing with proof that an accused has been a "good soldier" during her military career. Prior to 1980, no codified rules governed the admission of evidence at courts-martial, but standard practice called for military judges to admit good military character evidence broadly.(36) After the Military Rules of Evidence were adopted...