Rules of Evidence
The Military Rules of Evidence are a collection of rules governing the admissibility of evidence in a court-martial. Over the last few years, they have been under constant revision as the law related to sexual assaults has become political.
There are a couple of areas of the rules that most people facing military charges need to understand. Those rules are related to:
- Suppressing illegally obtained statements and evidence;
- Obtaining medical and mental health records related to victims and witnesses;
- Hearsay;
- Character evidence;
- Rules related to showing bias or motive to lie; and,
- Rules related to preventing the government from introducing allegations of uncharged misconduct.
These are all issues that require counsel experienced with military law and military rules.
One area that defense counsel often forget, is Military Rule of Evidence 404 (b). This is traditionally a rule that permits the prosecutors to introduce evidence of other crimes, wrongs, or acts that are not charged. Inexperienced defense counsel sometimes forget that the defense can use it to introduce evidence of the alleged victim’s past misconduct. So called reverse-404 (b) evidence can be powerful.
The rule basically says that evidence of other crimes, wrongs, or acts can be admissible to show things like:
- Proof of motive;
- Opportunity;
- Intent;
- Preparation;
- Plan;
- Knowledge;
- Identity; or,
- Absence of mistake or accident.
The defense is not required to give the government notice of such evidence. As noted, this is traditionally a rule used by the government. But it can be a powerful tool for defense counsel.
