When the government changes the rules, we take note. It seems like at least since 2007, they have been changing the rules to try to make prosecutions easier. The latest changes, on the other hand, if you know how to leverage them, may do the exact opposite.
In the military criminal justice system, Military Rule of Evidence [MRE] 404(a) generally prohibits the use of character evidence. The system wants to convict people based on actual evidence of the charged offenses, rather than some notion that they are generally “bad” people with poor character.
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 (for the charged offense) acted in accordance with their typical character. More simply put, whenyou are on trial for stealing housing allowance in Korea, theycan’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. Those purposes are identified as 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 swallow the rule, and really are only using it to try to smear the accused’s character at trial.
Luckily, there has recently been a change to the law that benefitsthe military accused person.
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 is typically vague, unhelpful, and inevitably raise issues in advance of trial or even during 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 the requirement for 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 theprosecution must give notice regardless. The government must also make this notice in writing and within a reasonable time prior to the trial. This allows the defense team to prepare and tofight 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 expressly 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 amendment for those who defend military members worldwide.
For any specific questions about how this rule and others may influence your case, please reach out for a consultation.
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