Military Rule of Evidence 404(b) – in Military Justice

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In the military criminal justice system, Military Rule of Evidence [MRE] 404(a) generally prohibits the use of character evidence in order to demonstrate that the person is guilty of an unrelated offense on the charge sheet. MRE 404(b) prevents the prosecution from introducing evidence of past misconduct (other crimes, wrongs, or other acts) to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that alleged character trait. More simply put, when you are on trial for stealing from the Commissary, they can’t use the fact that you shoplifted a Snickers bar when you were eleven years old.

However there are exceptions to every rule. MRE 404(b)2 allows the prosecution to bring in other crimes, wrongs, or acts for other “non-character” purposes to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The government prosecution teams often use this exception to try to smear the accused person’s character at trial.

Luckily, there has recently been a change to the law that benefits the military defendant (the accused). Previously, the defense team would have to ask the prosecutor to give them notice if the prosecution sought to use this type of character evidence against the accused. Then after formally requesting notice, the prosecution typically provides only a short, one or two sentence, explanation on what character evidence (past wrongs or misconduct) the prosecution plans on using against the accused. This notice from the government was often vague, unhelpful, and would be a point of contention at trial.

Fun fact: The MRE is modeled after the Federal Rules of Evidence [FRE]. On December 1, 2020, FRE 404(b) was amended to provide a more detailed notice to the defense team. It was also amended so that the defense would not need to request the notice in the first place. Now, the defense does not have to request notice at all, and the prosecution must give notice regardless.

The government prosecutors must also make this notice in writing and within a reasonable time prior to the trial. This allows the defense team to prepare and to fight the evidence from being admitted into evidence at trial. Most importantly, the amendment requires the prosecution to identify the specific evidence they want to use, why the evidence falls under a non-propensity exception, and explain why the evidence is relevant to the case. This level of detail from the prosecution is something the prosecution rarely provided in the past, but now it is required.

Although the FRE was amended to require a more detailed notice, an amendment to the FRE does not automatically guarantee the MRE follows suit. The President could have stopped this from applying to the MRE, but because he allowed a considerable amount of time to pass, by law the MRE also had to adopt this new amendment. Therefore, this change to MRE 404(b) became effective on 1 June 2022.

In a system that usually favors the prosecution, this is a positive change for the defense. What remains to be seen is how many of the judges will hold the prosecutor’s feet to the fire and demand a precise notice. Military caselaw has long stood for the proposition that prosecutors cannot merely utter talismanic words to give the appearance of notice, but few judges have been real sticklers. Time will tell if this change will have any true impact.

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