Saturday, March 03, 2007

Random thoughts on MRE 404(b)

Guert's post of 1 March caused me to look into something about CAAF's 404(b) analysis that has bothered me for a long time. And since we're in a little bit of a lull as far as new CAAF cases go, why not air old grievances?

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?


John O'Connor said...

When I was a trial counsel, I prosecuted United States v. Tyndale, 56 M.J. 209 (CAAF 2001), a meth use case that involved 404(b) evidence of the accused's prior urinalysis pop. In three separate opinions, three CAAF judges found that the circumstances concerning the accused's prior meth pop (for which he was acquitted at court-martial) were similar enough to the charged meth pop to justify admission under 404(b). To me, the real lesson in that case is the importance of trial counsel not biting off more than the appellate courts can chew. The CAAF opinions repeatedly reference the limited use to which the Government put the 404(b) evidence.

I talked to the members afterward, and they were floored that a prior pop got thrown in at the end of the case (before that, the evidence largely had been dueling polygraphs wrought by that judicial abomination U.S. v. Scheffer).

The funny thing is, my shop had been the one to prosecute Tyndale's prior drug pop and nobody knew it. Then, I was at a friend's hour drinking beer and watching football and said "hey 1st CEB had a staff sergeant pop for meth the other day" (my buddy previously had been with 1st CEB) and he said, "yeah, I bet it was Tyndale." And that was the beginning of the end for Bud Tyndale.

I went to the CAAF argument (I was out and working in DC by then) and was sure the Government was going to lose. Its position was not, uhh, well argued in my view.

M. A. Markinson said...

Mr. Fulton:
I don't think you are missing anything, except possibly the origin of the problem. I think that the issue probably arises at the trial level with the relatively inexperienced JAs and military judges that aren't exactly military justice specialists. Their resulting rulings are then supported through the appellate chain for a variety of reasons, including in many cases because they are correct. However, unlike a good federal court, courts-martial are short on articulating findings of fact on the record. The facts that are usually the most apparent are the facts that CAAF and others have seized on to support the 404(b) admission, the nature of the two "crimes." Just another example of the problems with inexperienced participants in the system.

Anonymous said...

I agree with Mr. Markinson. Typically under-experienced military prosecutors frequently use the "talismanic incantation" in seeking to admit 404(b) evidence and tyheir mostly equally inexpeinced trial practitioner military judges just go along with the incantation, reapeating it with equal verve. Unfortunately, they frequently forget to do the required analysis and when they do it, it is decidedly not rigorous. Common scheme or plan is supposed to require "signaturesque similarity because it is supposed to be probative if "identity." ALot of bad decisions in military law have obfuscated the purpose for which it was originally deemed relevant under the federal rules. These days it is simply "propensity" evidence which trial counsel offer and military judges permit to come in because they do not understand the Rules of Evidence.

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Anonymous said...

Lightning isn't likly to strike once....let alone twice....unless you're me.
You did your job...& I got to change careers. You were wrong but that's ok. Thanks alot. Bud Tyndale Buy one of my cd's..(-;