Examining Military Rule of Evidence 414

CAAF's new opinion in United States v. Schroder, __ M.J. ___, No. 06-0657/AF (C.A.A.F. May 31, 2007), makes some interesting law.

Schroder is a child molestation case. He was accused of raping his 12-year-old daughter and committing indecent acts with a 12-year-old neighbor. The central issues in the case concerned uncharged misconduct involving Schroder's stepdaughter, who testified that Schroder molested her when she was 9--22 years before Schroder's court-martial--as well as uncharged molestations and sodomy with his daughter whom he was accused of raping.

The military judge admitted the uncharged misconduct under Military Rule of Evidence 414 for the members' use regarding the charges involving both Schroder's daughter and Schroder's neighbor. One interesting issue arose concerning the specification alleging indecent acts with the neighbor. Some of the specific acts alleged in the specification fell within M.R.E. 414's authorization for consideration of other acts of child molestation, but others did not. The military judge didn't distinguish between those two groups of acts, but rather allowed the members to consider the M.R.E. 414 evidence as to the entire specification. Should the military judge have limited the member's use of the M.R.E. 414 evidence to the specific acts that fall within that rule's scope? In an opinion written by Judge Baker, CAAF unanimously said no. CAAF reasoned:

M.R.E. 414(a) provides that evidence of other acts of child molestation is admissible "[i]n a court martial in which the accused is charged with an offense of child molestation." The Rule does not limit the use of that evidence to qualifying acts within a specification, but rather to prove the specification itself. Congress could have expressly limited the Rule's application to specific acts, but it did not do so.

Slip op. at 11. (Shouldn't that excerpt have mentioned the President in addition to Congress? M.R.E. 414 originated as part of the Violent Crime Control and Enforcement Act of 1994 and become part of the Military Rules of Evidence in 1996 by operation of Military Rule of Evidence 1102's automatic incorporation of Federal Rules of Evidence changes. See generally 1 Stephen A. Saltzburg et al., Military Rules of Evidence Manual 4-223 (6th ed. 2006). But the President formally adopted M.R.E. 414, with changes, in 1998. See Mil. R. Evid. 414 drafters' analysis, Manual for Courts-Martial, United States at A22-37 (2005 ed.) ("Rule 414 is nearly identical to its Federal Rule counterpart. A number of changes were made, however, to tailor the Rule to military practice."). So while Congress could have narrowly limited the rule to specific acts, the President could have as well.)

CAAF did hold, however, that the military judge erred by failing to appropriately emphasize the limitations on the members' use of M.R.E. 414 evidence:

Although the law does not mandate a formulaic instruction, it is essential that where, as here, the members are instructed that M.R.E. 414 evidence may be considered for its bearing on an accused's propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged. Moreover, the factfinder may not convict on the basis of propensity evidence alone.

Slip op. at 15.

But no harm, no foul.

Another no harm, no foul call came out of what CAAF determined to be the TCs' erroneous argument, which asked the members to provide justice for not only the two victims in the case, but also for the stepdaughter who was the victim of the uncharged misconduct. The TCs even showed the members a slide with pictures of the daughter, the neighbor and the stepdaughter with the heading: "STOLEN INNOCENCE, JUSTICE PAST DUE." At the end of his rebuttal argument on sentencing, the TC asked the members to remember those pictures and told them, "The pictures are silent, but their silence screams for justice." Slip op. at 19. During his sentencing argument, the assistant TC showed the slide with the three photos to the members again and said: "Look at those girls. That is why we are here today. They deserve justice. They have been waiting for years for justice. They scream for justice. Members, make sure your sentence delivers justice for those girls . . . ." Slip op. at 20. No objection from the DC.

CAAF held that appeals to render justice for the stepdaughter was error:

Trial counsels' presentation invited members to convict and punish Appellant for his uncharged misconduct, as opposed to using that misconduct to inform their judgments regarding the charged conduct. The error was also plain and obvious. Appellant was not charged with offenses against SJS. Thus, as a matter of law, not morality, the court was not convened to render justice to SJS.

But there was no get-out-of-Leavenworth ticket for Schroder. Because CAAF found that the error wasn't prejudicial, it didn't rise to the level of plain error.

One final thought about Schroder. When I saw that it was an Air Force case, I thought that Mathews Month might have ended on an appropriate note, with CAAF affirming yet another ruling by Judge Mathews the Great. But, alas, such a contrived storyline may be found in Hollywood, but not on E Street. The opinion below was a per curiam by Judges Brown, Moody, and Fincher.