Over at 31(b)log, Major Rebecca Kliem writes about The Long Goodbye for Good Military Character (link to post):

Having an outstanding military record has long been an advantage when charged with a crime in the military justice system because it adds evidence of good military character to the defense counsel’s arsenal of weapons that can create reasonable doubt. Those days may soon come to a close as pending legislation affecting evidentiary rules finally reaches the well of the courtroom.

Some members of Congress apparently think that there’s something improper about the so-called “good soldier defense.” Major Kliem’s post digs deep into the military law of good military character, and she discusses the legislative proposal that would restrict that kind of evidence.

But something comes to mind. It is thoroughly settled that any accused is entitled to present evidence of his own good character. In fact:

It is not necessary to cite authorities to show that, in criminal prosecutions, the accused will be allowed to call witnesses to show that his character was such as would make it unlikely that he would be guilty of the particular crime with which he is charged. . . . It [is] not intended to give weight to the defendant’s personal testimony in the case, but to establish a general character inconsistent with guilt of the crime with which he st[ands] charged; and the evidence [is] admissible, whether or not the defendant himself testifie[s].

Edgington v. United States, 164 U.S. 361, 363-64 (1896).

In this politically charged environment, the proposal to prevent a service member from using good reputation in the service as evidence of good character may well become law. But I believe that if it does, then it will not stay law for long.

11 Responses to “Our long-term relationship with (good military) character”

  1. stewie says:

    Why not? I get that case law has expanded this broadly but it’s done so in an environment where Congress has remained silent, and silence equals consent.  If Congress says, nope, can’t do it, are we saying it is constitutionally required?  I don’t know about that.  Particularly if Congress doesn’t get rid of it but simply limits it to military offenses. 

  2. stewie says:

    p.s. having trouble accessing the site on firefox…sends me to Google sites and asks me to log-in.  Works fine on IE.

  3. Brian lc says:

    ZS,
     
    Please correct me if I am wrong.  Character evidence that a person is “law abiding” or a “good citizen” has long been prohibited in civillian courts.  If your charged with raping your neighbor in federal court you don’t get to introduce evidence that your a “good father,” “good carpenter,” or a “good citizen” under the theory that good fathers (etc) are less likely to rape.  I can’t imagine a consitutional challenge to keep the status quo without bringing in the constitutionality of the FREs as they are currently applied.
     
    Now, you can introduce your character for peacefulness, because that has a nexus with the crime of rape (or assault, etc).  And, if your charged with a military specific crime, (eg disrespect), military character may have a nexus and be admissible.
     
    But the case law that says military character is ALWAYS relevant, regardless of the offense, regardless of the connection to the elements of the offense, could be altered by Congress (or, for that matter, the President). 
     
    What am I missing?
     
     

  4. Marty W says:

    I’m with Brian.  Military character is always going to be part of sentencing, but there’s no particular reason that it’s required in the findings portion of the trial.  Frankly, in my experience, good people do terrible things all the time and bad people often aren’t guilty of all that people believe them to be.  

  5. Zachary D Spilman says:

    Brian,

    I can’t give you, off the top of my head, the type of dissertation on character evidence your question deserves. But I can reference these paragraphs from the advisory committee’s 1972 notes on F.R.E. 401:

    In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character (often misleadingly described as “putting his character in issue”), in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; and (3) the character of a witness may be gone into as bearing on his credibility. McCormick §§ 155-161. This pattern is incorporated in the rule. While its basis lies more in history and experience than in logic an underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 584 (1956); McCormick § 157. In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.

    The limitation to pertinent traits of character, rather than character generally, in paragraphs (1) and (2) is in accordance with the prevailing view. McCormick § 158, p. 334. A similar provision in Rule 608, to which reference is made in paragraph (3), limits character evidence respecting witnesses to the trait of truthfulness or untruthfulness.

    There’s also a good body of caselaw that rejects a “standing alone” character instruction. For example:

    Accordingly, we hold that whether or not a defendant rests his case solely on character evidence, an instruction to the jury that such evidence “standing alone” may create a reasonable doubt is not required. It is sufficient for the trial judge to instruct the jury to consider character evidence along with all the other evidence in determining whether the prosecution has proven guilt beyond a reasonable doubt. In addition, if the district judge finds it appropriate, he may inform the jury of the purpose or purposes for which defendant’s character evidence is admitted.

    United States v. Pujana-Mena, 949 F.2d 24, 31 (2d Cir. 1991).

    As for the military and “military character,” I’m focused on the fact that a military accused isn’t accused of violating just any penal code. He’s accused of violating the Uniform Code of Military Justice.

    In that context, I see his military character as indisputably “pertinent.”

  6. stewie says:

    Citing the fact that the word military is in the title thus military character is always pertinent is a mighty slender reed and a necessary one since that’s your only link to pertinent.  I like GMC.  I hope it sticks around.  But I also can’t see a viable argument that says Congress can’t get rid of it for non-military offenses.   Today our rape laws look a lot like the civilian world’s.  The basis for why we prosecute a larceny isn’t based on anything to do with the military qua military.  We have case law and jurisprudence that talks about pure military offenses…that suggests to me, logically, that there are other offenses that are not pure military offenses.  We all know what both sets entail, and sexual assaults are decidely not in the former.Regardless, if Congress in its infinite wisdom decides that military character is not pertinent to non-military offenses, I’m not sure the Constitution is violated by that determination, and thus I don’t see how military courts could ignore it.  Based on what? I know Congress passed this new statute, and it’s totally constitutional, but it bucks a long-standing tradition so…?

  7. Advocaat says:

    And to keep the playing field vertical, 413 & 414 will be expanded to cover all criminal propensity.  “Members, the accused is a bad man…”

  8. Lieber says:

    Stewie is right.

  9. Zeke says:

    I know of at least one large civilian jurisdiction that has followed the aforementioned Supreme Court precedent and permits a criminal defendant to introduce evidence regarding their general character in defense.   See California Evidence Code Sec. 1102.

  10. stewie says:

    I don’t think there is anything that says you can’t permit general character evidence for an accused to be used (positively) by the defense.

  11. Dwight Sullivan says:

    Brian le Chien (which still kind of rhymes):
     
    Actually, civilian courts do allow reputation and opinion evidence of law-abidingness.  “Courts have held that the general character trait of law-abidingness is pertinent to almost all criminal offenses.”  In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003).