Top Ten Military Justice Stories of 2014 – #1: Restriction of the defense of good military character
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.