Military Rule of Evidence 404 (B)

Although Military Rule of Evidence 404(b) is a sub-rule of MRE 404, it is nonetheless a crucial component of the Military Rules of Evidence (MRE) that stands on its own in terms of its gigantic implications.

Thanks to MRE 404(b), evidence of some other, unrelated crime, wrongdoing, or questionable act cannot be used in a court-martial to prove a person’s character in an effort to show that an accused party is acting in accordance with their established (negative, criminal, violent, etc.) character traits.

Such evidence may be used for other, more limited purposes, however.

Understanding the Military Rule of Evidence 404(b) in Context

MRE 404, and Section 4 of the MRE more broadly, provides an extensive framework governing the admissibility (or inadmissibility) of various types of evidence in court-martial cases. When talking about rule 404(b), this includes character evidence, past criminality, and, more specifically, evidence of other crimes or acts committed by the accused that are not directly related to the case at hand.

MRE 404 begins, of course, with MRE 404(a), which lays out the rules for admitting “evidence of a person’s character or character trait” into court and prohibits doing so for the purpose of proving that someone acted in accordance with their character. MRE 404(b) mirrors much of the language of 404(a), only applying it to evidence of other acts (such as past crimes or questionable behavior) instead of more general “character” evidence.

There are other significant differences between these two subsections of MRE 404, of course. Notably, in its second section, MRE 404(a) allows the accused and their defense the option to bring the same sort of character evidence against the alleged victim, so long as the judge deems it relevant and admissible.

After laying out other details and exceptions for MRE 404(a), the section moves on to MRE 404(b), “Other Crimes, Wrongs, or Acts.”

MRE 404(b) is a rule that severely limits any use of evidence that shows or suggests that the accused committed a crime other than the one for which they are currently being charged and tried. The purpose of the rule is to prevent the use of evidence that is not relevant to the charged offense. This, in turn, protects the accused from unfair prejudice stemming from events that are not actually relevant to their court-martial case.

MRE 404(b) is rooted in the ethical principle that someone standing trial for a crime should only be convicted based on the offense for which they are actually charged and not for their general “bad” character or other, unrelated, issues they may be involved in.

MRE 404(b) signals that the military justice system recognizes that evidence of prior bad acts can be extremely prejudicial, even to the point that it taints the neutrality of a court case. This is a serious concern because, in the worst-case scenario, this sort of prejudice can even lead to an unfair conviction. This is why the rule states that evidence of other crimes, wrongs, or acts is generally not admissible to prove that a criminal action was in conformity with someone’s supposed character.

However, it’s important to understand that MRE 404(b) also recognizes that there are certain limited circumstances in which such evidence may be relevant and admissible.

Permitted Uses of Evidence of Other Crimes, Wrongs, or Acts

MRE 404(b) allows for the use of evidence of other crimes, wrongs, or acts in situations such as:

• Proving motive rather than general character
• Illustrating that the accused had the logistical opportunity to commit the crime for which they are currently being charged
• Showing that the accused planned or prepared for the crime for which they are currently being charged
• Portraying them in a way that helps establish the accused’s identity
• Showing that the crime currently being dealt with is not a matter of mistake or accident

When the prosecution intends to leverage these exceptions and try to use such evidence in a court-martial, they are required to provide reasonable notice to you and your defense. That way, you can prepare your strategy for responding to this evidence—or petition the court to disallow its use.

Military Rule of Evidence 404(b) in the Real World

Here are some hypothetical real-world examples where Military Rule of Evidence 404(b) might be invoked:

• The government seeks to introduce evidence of the accused’s prior drug use and shoplifting as a civilian teenager to prove the accused’s motive for stealing supplies from their post.
• In a sexual assault case, the prosecution seeks to introduce evidence of the accused’s sexual history, including consensual sexual activity, to portray them as having a pattern of degeneracy or criminality.
• Pursuant to a court-martial for fraud, the government attempts to introduce evidence of the accused having previously falsified a document in the civilian world to demonstrate that the accused had the means, motive, or opportunity to commit the offense currently being tried.
• As part of a high-profile murder case, the government tries to introduce evidence of the accused service member’s prior violent behavior or threats, such as a history of domestic violence, to show that the accused had the propensity or tendency to commit other violent acts.
• In a drug trafficking case with limited hard evidence, the prosecution seeks to introduce evidence of the accused’s prior drug use to show that the accused has the knowledge, intent, means, or motive to commit the offense they are currently being charged with.

MRE 404(b) works along with the rest of MRE Section 4 to provide clear rules for what sort of evidence can be brought to a court-martial and how that evidence must be presented or processed. All the MRE evidentiary rules work together to ensure that the evidence presented in a military trial is relevant and reliable. For example, MRE 401 defines relevant evidence, which then becomes admissible under MRE 402 unless one of the exceptions listed therein applies. MRE 403 goes on to allow the court to exclude evidence that may be prejudicial, and MRE 404(a) restricts the use of certain character evidence. MRE 405 then provides guidance on how someone’s character may be proven in cases where character evidence is allowed.

This interdependent web of rules goes beyond Section 4. As one example, MRE 601 outlines the process for establishing that a witness is credible and competent. All these rules must be considered individually and in conjunction with one another to create a comprehensive legal strategy and ensure a fair and just court-martial process.

Contact Aaron Meyer Law

If you are facing a legal issue related to MRE 404(b) or other parts of the Military Rules of Evidence, it is important to seek professional legal advice from someone with experience in military cases. Aaron Meyer Law, working out of Newport Beach, CA, has a skilled and knowledgeable legal team that is ready to help you with even the most complicated and challenging military law cases. While we have deep experience managing court-martial cases, we are additionally available to provide representation for civil and criminal matters.

Contact Aaron Meyer Law today to schedule a consultation and take the first step toward protecting your rights and your future. Our team is standing by to provide you with the guidance and support you need to navigate the military justice system effectively and steer your case towards the greatest possible outcome.