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).