Military Rule of Evidence 404(a)(2)(A) (2013) is functionally identical to its civilian counterpart, Federal Rule of Evidence 404(a)(2)(A):

The accused may offer evidence of the accused’s pertinent trait, and if the evidence is admitted, the prosecution may offer evidence to rebut it.

American law has long recognized that an accused may use a pertinent trait of his or her own character as a defense against a criminal charge. Over a century ago, in Edgington v. United States, 164 U.S. 361, 363 (1896), the Supreme Court noted that this principle is so fundamental that “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.”

Military law has also long recognized the admissibility of character evidence:

It may be regarded as settled law that evidence of good general character, as possessed prior to the commission of the alleged offence may be introduced by the accused as part of his defence. . .

W. Winthrop, Military Law and Precedents, 350 (2d ed. 1920). Colonel Winthrop’s treatise embraced the common law rule that permitted admission of general character, while the modern practice codified in the Military Rules of Evidence (established in 1980) allows only admission of a pertinent trait. See United States v. Clemons, 16 M.J. 44, 46-47 (C.M.A. 1983); United States v. Piatt, 17 M.J. 442, 445-446 (C.M.A. 1984). But “good military character is a character trait within the meaning of Mil.R.Evid. 404 (a)(1).” United States v. Court, 24 M.J. 11, 14 (C.M.A. 1987). And it is a pertinent trait in a court-martial because “the well-recognized rationale for admission of evidence of good military character is that it would provide the basis for an inference that an accused was too professional a soldier to have committed offenses which would have adverse military consequences.” United States v. Wilson, 28 M.J. 48, 49 n.1 (C.M.A. 1989).

But in the last month of 2014, in Section 536 of the National Defense Authorization Act for Fiscal Year 2015, Congress upended this settled law:

SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.

(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

It’s hard to find a way that Congress got it right with this legislation, as there are numerous obvious flaws. For starters, this prohibition against the use of “general military character” does not limit testimony about other, more specific favorable character traits; for example, an accused’s character as a law-abiding person, proven by the testimony of fellow service members, is still admissible in every case (and it serves the same, or a better, purpose for the defense). Next, the enumeration of certain articles creates a false distinction between offenses; general military character is now expressly prohibited in a prosecution for rape in violation of Article 120, but not in a prosecution for murder in violation of Article 118. Finally, the purported application of the prohibition to any other offense where military character “is not relevant to an element” is functionally meaningless because under the Military Rules of Evidence military character is already only admissible where it is pertinent, and “the word ‘pertinent’ is read as synonymous with ‘relevant.'” Clemons, 16 M.J. at 47 (quoting United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982)). See also Piatt, 17 M.J. at 445-446; Wilson, 28 M.J. at 49 n.1.

In other words, the general military character of an accused is still as admissible as it ever was for every offense except those specifically enumerated in the NDAA: rape and sexual assault generally (Article 120), stalking (Article 120a), rape and sexual assault of a child (Article 120b), other sexual misconduct (Article 120c), larceny and wrongful appropriation (Article 121), robbery (Article 122), forgery (Article 123), making, drawing, or uttering check, draft, or order without sufficient funds (Article 123a), forcible sodomy; bestiality (Article 125), arson (Article 126), extortion (Article 127), burglary (Article 129), housebreaking (Article 130), perjury (Article 131), frauds against the United States (Article 132), and attempts or conspiracies to commit these offenses (Articles 80 and 81).

Moreover, there’s good reason to believe that the proponents of limiting good military character evidence just don’t understand how a character defense works. For example, discussing this issue on the floor of the Senate in November 2013, Senator McCaskill stated:

It is irrelevant whether someone is a good pilot if they have sodomized or raped someone in the military.

159 Cong. Rec. S8304 (available here). Senator McCaskill’s emotionally-charged assertion is both a fallacy and plain wrong. It is a fallacy because an accused’s piloting skills are not the same as an accused’s military character; piloting skills (or any other military skill) are, at most, merely a contributing factor in an assessment of military character. It is wrong because even if an accused did sodomize or rape someone, the accused’s military skills are still relevant in a court-martial; they are specifically identified as relevant criteria for sentencing. See R.C.M. 1001(b)(2); R.C.M. 1001(c)(1)(B).

A character defense in a court-martial is no different from a character defense in a civilian court: It allows an accused 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.” Edgington, 164 at 363. “It is not proof of innocence, although it may be sufficient to raise a doubt of guilt.” Id. at 367 (quoting Jupitz v. The People, 34 Ill. 516, 521-22 (1864)). And while it is possible that a senior member of the military might use a long record of good conduct to discredit an allegation of misconduct made by a relatively-unknown junior member, that scenario is no different from what might happen in a civilian case involving an accusation against a powerful person (like a politician, a celebrity, or a business leader).

None of this is to say that a character defense doesn’t have its flaws. But “the criminal rule [permitting use of character evidence by the defense] is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.” Fed. R. Evid. 404 advisory committee’s note. Proponents of the new restrictions on evidence of “general military character” might point out that Congress did not eliminate the rule that generally permits a character defense in a court-martial, but rather that Congress merely limited a particular application of that rule. However, this argument falls apart when one considers the amorphous term “general military character.” Put differently, what makes for a good soldier anyway?

For sure it’s not someone who has sodomized or raped, as Senator McCaskill so vividly described. Nor is it someone who commits any number of other offenses, from the grievous crime of murder to the relatively modest offense of disrespect. Rather, a good defense counsel knows to ask every witness to define the term in their own words, because there is no right answer to the question “what does the term good military character mean to you?”

Ultimately, as the Court of Military Appeals noted in Wilson, a good soldier is someone who is “too professional a soldier to have committed offenses which would have adverse military consequences.” 28 M.J. at 49 n.1. In this respect, good military character is really just a different way of saying that a person is law-abiding, and being law-abiding is a trait that is always pertinent in a criminal case. See, e.g., Angelini, 678 F.2d at 381; United States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981); United States v. Yarbrough, 527 F.3d 1092, 1102 (10th Cir. 2008). See also, generally, Michelson, 335 U.S. 469; McCormick on Evidence § 191 (6th ed. 2006).

Whether a particular accused actually is such a person, and whether the accused nevertheless committed the alleged offense, are questions of fact for a court-martial to decide.

Still, general military character is a type of character evidence that is unique to military law. The drafters analysis of the Military Rules of Evidence explains:

Rule 404(a)(1) allows only evidence of a pertinent trait of character of the accused to be offered in evidence by the defense. This is a significant change from Para. 138 f of the 1969 Manual which also allows evidence of “general good character” of the accused to be received in order to demonstrate that the accused is less likely to have committed a criminal act. Under the new rule, evidence of general good character is inadmissible because only evidence of a specific trait is acceptable. It is the intention of the Committee, however, to allow the defense to introduce evidence of good military character when that specific trait is pertinent. Evidence of good military character would be admissible, for example, in a prosecution for disobedience of orders. The prosecution may present evidence of a character trait only in rebuttal to receipt in evidence of defense character evidence. This is consistent with prior military law.

Manual for Courts-Martial, United States, at A22-34 (2012). See also Piatt, 17 M.J. at 465-446. It’s not unreasonable for Congress to restrict the use of this unique type of character evidence, particularly considering the existing requirement in Article 36 that the procedures for courts-martial established by the President “shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”

Unfortunately, there’s no reason to believe that the new restriction of the defense of good military character is the product of a desire to make a character defense in a court-martial consistent with one in the district courts. Rather, considering the politicization of the military’s response to sexual assaults (our #1 military justice story of 2012), the haphazard language of the new restriction, and the absence of rigorous debate prior to its enactment, the new restriction is more likely the product of political ambition and the influence of special interest groups whose dissatisfaction with the results of particular high profile courts-martial prompted calls for a broad array of structural changes to the military justice system. With this new restriction those groups can claim a victory, however hollow it may truly be.

It’s likely that the new restriction of the defense of good military character will have little practical impact in the long term, because evidence of that amorphous trait will be be replaced by evidence of other, more specific favorable character traits. But because the new restriction so dramatically upends well-settled military law, it is #1 in our list of the Top Ten Military Justice Stories of 2014.

22 Responses to “Top Ten Military Justice Stories of 2014 – #1: Restriction of the defense of good military character”

  1. Former DC says:

    Zack: a given the potential Constitutional dimension here, especially in light of the Supreme Court’s relatively recent record of distaste for attempts by Congress to limit courts’ abilities, would you care to opine on the possibility of a successful Constitutional challenge, and possible Golden CAAF?

  2. stewie says:

    Don’t know that I agree with you that 536(b)(4) is necessarily “irrelevant.”  Seems to me it’s an attempt to limit the GSD to military specific offenses.  Now, granted, since they didn’t specifically include murder, that’s a big hole, and reasonable minds could argue that by not including it, it’s open for use there.  But since reasonable minds could disagree I don’t think it’s a slam dunk that the GSD is still available.  We’ll have to see it tested.  I’m sure government will say it isn’t, defense will say it is, and the courts will give us an answer.
     
    Former DC, what’s the constitutional dimension? The GSD is a creature of statute and case law, it’s not a constitutional right. They could get rid of the concept altogether, so long as they allowed specific relevant pertinent character traits in it’s place (character for lawfulness, etc.). 
     
    I don’t agree with Zach that the GSD is just character for law-abidingness redressed, there’s more to it than that.  Law-abiding certainly fits within the circle of GS but the GS circle is larger IMO.

  3. Good Move says:

    Overall this is good, but probably needs more plain language and expansion. For instance, what I see, though not technically ‘good character’ is that when a junior member is judged by senior members they appear to downplay any good character, achievement etc. It’s like a ‘well we’ve done all that, live longer, attained more rank, accomplished more, so we’re not impressed’. Conversely when a senior rank is up there, others – almost invariably of senior rank as well – line up to sing the praises and it’s considered monumental.
    Time to evaluate the facts of the case, only.

  4. Zachary D Spilman says:

    I’d be surprised if a military judge used this new restriction to limit a character defense so much that the Supreme Court would be interested in the case, Former DC

  5. The Monkeys Strike Back says:

    Is 128 still a LIO of 120?
    What happens if you charge a 134, 133, 92 or 90 in a 120 case?
     

  6. k fischer says:

    I’ve never bought into the value of arguing that an Accused is innocent of rape because he is a good Soldier.  But, where I think the value lies is the panel hearing the Accused is a good Soldier , so it wakes them out of their funk of assuming the Accused is guilty and makes them realize, which they already should, that convicting the Accused is going to be a big freaking deal, so they better get it right.
     
    Another loophole is when the Government loads the charge sheet on a what should have been a single spec of rape, for instance adultery.  The panel in the right circumstances would still hear the evidence and the judge would have to emphasize that the Accused is a good Soldier, but they can’t consider that as exculpatory evidence.

  7. stewie says:

    That is a good loophole, and if I were the government, I would stop adding adultery or similar charges immediately because it absolutely would be an opening to allow in GS evidence on that charge.  Some will, most won’t be able to help themselves.

  8. Zachary D Spilman says:

    Well, in a case involving (for example) charges of rape (Art. 120) and adultery (Art. 134), the judge could instruct the members that the evidence of the accused’s general military character is only admissible to prove that he did not commit the adultery offense. “We presume the members followed the instructions in the absence of any indication to the contrary.” United States v. Holt, 33 M.J. 400, 403 (C.M.A. 1991).

  9. RY says:

    I think the value of GMC is that in sex assault cases, it can become a question of who the jury likes and does not like.  The reforms pushed in the recent years are aimed at shifting focus off an alleged victim and trying to restrict or prohibit altogether evidence which might make an alleged victim look bad (this is one of the big reasons behind MRE 412, i.e., concern that promiscuity negatively paints the alleged victim in a way that tilts the balance even more for an accused).  One of the reasons the Gov’t charges adultery and other petty charges is to not only stack a charge sheet but paint the character of the accused to make it easier for a jury to see him as a bad character.  
     
    IMHO, GMC was a rare thing because there was usually some negative stuff out there that you were opening the door to by introducing it.  I found specific traits, like respect for women (even if MJ wanted it couched as peacefulness), were more important especially because of the SAPR training and efforts to undermine GMC over the last few years.  In those rare cases where you can legitimately argue excellent character, GMC breaks the relentless attack on the accused and offers a reminder of the innocence presumption and that simply being charged does not mean guilt, nor does being accused.  Moreover, it truly helps the jury to like the accused, which really makes it difficult to accept convicting unless the evidence is overwhelming.  In other words, GMC ensured a jury held the Gov’t to BRD because in sex cases no jury lets a guilty man go because he is nice; they want to sleep well at night and they will convict a nice guy too.  

  10. stewie says:

    The point is what k fischer says, that they know this guy is a good Soldier, not a slug, and thus, if they weren’t taking things seriously before, they are now.  Not that it should matter, they should take it seriously at all times, but it’s human nature.  It doesn’t matter if they actually consider it for guilt or innocence, it’s the focusing it gives them.
     
    Obviously, if there’s bad stuff out there, it was never really an option anyways so no loss there.  But I think it’s a smart play to raise it if you have a good Soldier with offenses the GSD applies to. 

  11. Dew_Process says:

    There is a constitutional component to this argument, i.e., the “right to present a defense” under the Due Process clause, first articulated in Aaron Burr’s trial, United States v. Burr, 25 F. Cas. 187 (No. 14, 694) (C.C.D. Va. 1807).  This was articulated by SCOTUS in Washington v. Texas, 388 U.S. 14, 19 (1967), where the Court noted:
     

    The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.

     
    Obviously, this must be articulated and applied on a case-by-case basis.  And, it’s an issue waiting to be litigated.

  12. stewie says:

    I don’t see that constitutional right to present a defense as applying to the GSD in total. Sure, there may be a situation where it reaches that I suppose, but the right to present a defense doesn’t mean relevancy goes out the window.  I wish we’d have kept the GSD for all offenses, but I don’t think it rises to a constitutional right, and I’d be pretty surprised if CAAF thought it did.

  13. Dew_Process says:

    I won’t hold my breath about CAAF, but SCOTUS has addressed this issue:
     

    The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. [emphasis added]

     
    United States v. Agurs, 427 U.S. 97, 112-113 (1976).  In Pennsylvania v. Richie, 480 U.S. 39, 56 (1987), the Court held:
     

    Our cases establish, at a minimum, that criminal defendants have the right to . . .   put before a jury evidence that might influence the determination of guilt.

     
    I certainly don’t have a “constitutional crystal ball,” but this legislation and rule changes sure seems to be a giant step backwards, at least in SCOTUS jurisprudence, on the topic. For anyone with a scholarly bent on the topic of an Accused’s “Right to Present a Defense,” or who faces litigating the GSD, here’s a good starting point:
     
    http://www.harringtonmahoney.com/documents/Mahoney%20-%20Right%20to%20Present%20a%20Defense.pdf 

  14. stewie says:

    But the GSD is a generic defense that can be replaced by more specific, pertinent character traits (like character for law-abidingness, or character for treating women respectfully).  I don’t think there’s a “character for being a good citizen” defense in the civilian world which would be the corollary.  I just don’t see it implicated in the “right to present a defense.”

  15. Just a thought says:

    See also, The “Good Soldier” Defense: Character Evidence and Military Rank at Courts-MartialAuthor(s): Elizabeth Lutes Hillman, The Yale Law Journal, Vol. 108, No. 4 (Jan., 1999), pp. 879-911

  16. Tom Booker says:

    Stewie makes a point that I’ve often made:  There’s no such thing as a “proficient Xerox repairman” defense for most crimes prosecuted by civil authorities, so why would the “good Sailor defense” be relevant in many contexts?
     
    The reason it’s relevant used to be that the Armed Forces were considered an elite group separate from “the common ruck.”  I believe the Supreme Court said as much in Parker v. Levy.  Unfortunately, both CAAF and the political branches have tried to cast doubt on our special status of late.
     
    I certainly am in favor of advocates’ tying character evidence to a particular and relevant character trait.  That’s what the 400-series of Rules of Evidence is all about, after all, relevance.  Good advocates will see, however, that these amendments cut too wide a swath — after all, an officer does not lie, cheat, or steal, nor tolerate it in those who do — so why are larceny, forgery, and worthless check offenses, for example, on the “hit list”?
     
    The creator, and editor emeritus, of this blog (who is an occasionally talented racquetball player), an attorney and officer whom I respect greatly, once likened a concurrence that I wrote to a movie about the Mayan apocalypse.  We’re chipping away at the values and traditions of the service and the body of jurisprudence that has grown over the centuries.  This, I believe, is another step.
     
    But I’m no expert . . . .

  17. RKincaid3 (RK3PO) says:

    What is missed in much of the discussion around the GSD is what k fischer raised:  even good soldiers can be criminals.  The fact that one who commits a crime can also be a good soldier doesn’t mean that the good soldier yesterday didn’t commit a crime today any more than does the fact that one was a criminal yesterday mean that they committed a crime today.
     
    I know why the defense bar likes the GSD and I know why the government doesn’t. I also know why the SCOTUS and many other courts have opined that there is a (implicit or otherwise) constitutional due process issue with limiting character evidence during trial. My position is simply this: an accused’s general character or reputation is not (or at least SHOULD NOT be) relevant during the merits phase of the trial. If the facts are so close that the jury could conclude either way on the accused’s guilt as to an offense, that dispute should be resolved by the legal presumption of innocence tilting the scales of justice towards the defense–maybe even an obscenely explicit and direct instruction on that issue–not by some ridiculous reliance on some general exception in the form of “well, we don’t know if he is guilty or not guilty because the government hasn’t overwhelmingly convinced us–but he could be–so we will look to his character/reputation to break the tie” standard.
     
    Where should the GSD come into play?  ONLY at sentencing to add balance to the overall picture so that the panel (jury) can set a sentence that is both appropriate to society as balanced by and against what is an appropriate sentence for the individual accused.
     
    But I don’t write the rules and likely never will.

  18. RY says:

    I feel that you may be conflating relevance with weight.  While it is true that good people sometimes break the law, that does not make it irrelevant to a determination of guilt.  We allow truthtfulness, peacefulness, and other character traits because character does inform the right decision.  Maybe you don’t put much stock in it, and it may depend on who or how many people say it, but do you mean to say general character would have absolutely no bearing, for example, on whether Amn X committed larceny that he was an exceptional soldier, ahead of his peers in everyway, and a model for all to follow?  True, again, good people sometimes commit crimes, but relevance is about whether it makes a fact of significance more or less likely.  Would not the fact that he is viewed so favorably by so many, peers, subordinates, and superiors, officer and enlisted, military and civilian, make it less likely he intended to steal or deprive someone even temporarily of property? 
     
    I appreciate that some folks may not put much stock on it, but I think it’s for the finders of fact to weigh as they assess the competing witnesses and the reliability of the evidence.  It should be up to the parties to weigh the merits of using the evidence, rebutting the evidence, and arguing to the fact finder what it is worth.   
     
    As for only having GSD in sentencing, it isn’t really a defense at that point rather it is character for rehabilitation.  You can’t really still call it Good Soldier when you stand convicted of an offense, unless you really think outstanding character includes crimes. 

  19. RKincaid3 (RK3PO) says:

    Thanks, RY.  Appreciate your perspective.  Good explanation.  But I fear my point remains unchallenged.  Yes, there is a difference between relevance and weight.  But all people falter and all can commit crimes even though their general character is to the contrary.  As such, I submit that when anyone–government or defense–has to rely upon subjective opinions about one’s general character to determine whether a person did or did not commit a crime, then the government has not done its job BRD.
     
    I would prefer a harder, more objective rule along the lines of this:  a subjective opinion on one’s character is inconsistent with the charged offense is NOT proof that a crime has been committed.  The crime indeed may have been a deviation from his normal character, but it in no way means he didn’t commit a crime.  What it does mean is that the government has generally failed to be convincing BRD and needs the subjective “judgment” of others to close the deal and convict.  Or, it means that the defense is desperately trying to overcome the objective facts by relying upon others subjective opinions about whether the accused is guilty or should be.
     
    In either case, the system is turning to something besides an objective fact to resolve the dispute.  The system is allowing a subjective opinion to enter evidence as a fact, which opinion may be right, wrong or just plain worthless as to the ultimate issue.
     
    It just seems to me that a truly just system would eschew–at least as much as possible–relying upon subjective opinions (such as whether someone is truthful, or law abiding or what have you) as if they are facts to support one outcome or the other.  The evidence at issue is using the subjective to “nudge” a final conclusion off of a ledge–a ledge that was created largely by the government’s inability to prove guilt BRD objectively.
     
    Again, just my opinion.  I have oft been wrong and will be again, surely.  And now you know why I will not be making any rules anywhere under which anyone will or must operate.
     

  20. stewie says:

    Again this is where we, as usual part company severely. You value certainty and black/white approaches a lot more than I do. Humans are subjective. Motivations are subjective. There is no such thing as a purely objective approach to the criminal justice system (or almost anything dealing with human beings).
     
    If you can get a computer program that can do it, great, til then you are stuck with humans, and they already bring in subjective beliefs and experiences, and guess what, those aren’t always bad things.  They can fill in the gaps quite well where there simply is no objective evidence present.  Thus, yes if a Soldier has a great record of being honest, trustworthy, law-abiding, then in those close cases where the line could go one way or the other, it’s things like the GSD or other relevant character evidence that, I think correctly, can tip the line.
     
    Now, in my experience, those situations happen fairly infrequently.  Either the evidence is strong for a conviction, or weak enough for an acquittal, and I suspect rarely is it the case that the GSD or similar defense like it are the determinant.  Still, I do agree with ksf that they open the minds/ears of the panel who might come in with that subjective belief that “this guy is probably a slimeball” or “he wouldn’t be here if he didn’t do something wrong.”

  21. Advocaat says:

    Late to the party but while I disagree with the elimination of GMC evidence for any offense, and I cannot understand why sexual offenses should be immune to GMC from a policy perspective, I would disagree that this is the most important MJ story of the year as I concur w/ ZS’s last paragraph:

    It’s likely that the new restriction of the defense of good military character will have little practical impact in the long term, because evidence of that amorphous trait will be be replaced by evidence of other, more specific favorable character traits…

    Defenders will do better by their clients by instead breaking GMC down into a laundry list of specific character traits.