My complaint pertains to the way CAAF analyzes whether a prior act is admissible on the basis that it is part of a common scheme or plan with the charged misconduct. In particular, I disagree with the emphasis CAAF places on whether the two acts in question are substantially similar to one another. The way CAAF approaches the "common scheme or plan" today can be traced to the CMA decision in United States v. Brannan, 18 M.J. 181 (1984). In Brannan, the accused faced court-martial for inviting PFC Hall and Specialist Four Jones into his pickup truck, producing two marijuana cigarettes, and inviting both Hall and Jones to "fire it up." After the three smoked the marijuana, the accused produced a paper bag full of smaller plastic baggies and offered to sell additional marijuana for $25 or $30 per bag.
At trial, the government sought to introduce evidence that the accused had previously transferred baggies of marijuana to other Soldiers on three different occasions, and that he had smoked marijuana previously. The government asserted that this evidence tended to show "a common scheme, plan or design [by appellant] for the continual sale of marihuana to troops on this post." Id. at 183. CMA considered that argument thus:
"In order for the other offenses of appellant to be relevant for the above
purpose, they must be . . . almost identical to the charged acts and each other
. . . so as to naturally suggest that all these acts were results of the same
plan. United States v. Danzey, [594 F.2d 905, 913 (2nd Cir. 1979).]
. . . [T] he absence of similarity of acts seriously undermined the relevance of
this evidence to show the plan particularly averred by trial counsel."
Id. at 184.
While I agree with the result of that analysis, the reliance on the dissimilarity of the offenses to show lack of a common scheme or plan is (in my humble opinion) a logical glitch that is causing confusion in the court's 404(b) analysis to this day. The implicit assumption that the court makes is that two bad acts that originate from the same scheme are necessarily going to be "almost identical." But why? Doesn't a criminal scheme frequently involve multiple, interdependent bad acts that are dissimilar? For example, might not a criminal hatch a scheme to steal a firearm and shoot someone? I tend to think that by looking for similarities, courts are more likely to scoop up bad acts that show propensity to commit bad acts of that kind while disregarding the extrinsic bad acts that complete the picture of a larger criminal scheme or plan.
I'm not saying the court just made it up. The cases the court relies on (Danzey, supra, and United States v. Dothard, 666 F.2d 498 (11th Cir. 1982)) give some support to this approach. Those courts, in turn, cite to Evidence stalwarts McCormick and Wigmore. I know, I know--I should stop there. That really ought to be good enough. But it bothers me that the circuit court quotes McCormick for the proposition that the similarities must amount to a "device [that] must be so unusual and distinctive as to be like a signature." Danzey, 594 F.2d at 913, fn 6, quoting McCormick's Handbook of the Law of Evidence § 190, at 449 (E. Cleary ed. 1972). This is a rationale I associate with proving identity, a concept distinct (at least in my own mental evidence hornbook) from the common scheme or plan basis for admissibility. Perhaps these rationales were more amorphous in the pre-FRE days when the McCormick wrote his treatise.
The focus on the similarity of the extrinsic act with the charged act has dominated CAAF's "common scheme or plan" doctrine ever since. See, e.g., United States v. Mann, 26 M.J. 1 (1988), United State v. Munoz, 32 M.J. 359 (1991), United States v. McDonald, 59 MJ 426 (2004). I think this approach misses the mark. It's both over- and under inclusive. Anyone else noticed this? Am I missing something?