404(b) evidence of common scheme / plan — Court-Martial Trial Practice Blog

In United States v. Gree

The appellant contends that the military judge erred in admitting evidence of uncharged acts occurring seventeen months after the charged offenses to establish a common plan or scheme. He argues that this evidence was improperly admitted under Military Rule of Evidence (M.R.E.) 404(b) and that the judge did not conduct a proper M.R.E. 403 balancing test. Additionally, he asserts that the Air Force Court of Criminal Appeals (AFCCA) improperly substituted its reasoning by finding the evidence probative of wrongfulness and intent.

A. M.R.E. 404(b) Evidence

M.R.E. 404(b) prohibits using evidence of prior or subsequent acts to prove character but allows such evidence if relevant to motive, opportunity, intent, plan, or other non-propensity purposes. The military judge’s decision to admit this evidence was assessed under the three-part Reynolds test:

Evidence of the Act: The government provided sufficient proof that the uncharged conduct occurred, including a police report, recorded statements, and testimony.
Fact of Consequence: The uncharged conduct supported the conclusion that the charged threat was wrongful. The military judge found that the appellant’s actions aimed to control and intimidate MGW to prevent her from reporting domestic abuse, which made the charged offense more likely to be wrongful rather than a jest or idle banter.
M.R.E. 403 Balancing: Although the military judge did not explicitly articulate his balancing test rationale, his decision was entitled to less deference. Nevertheless, the probative value of the evidence was deemed sufficient, and the risk of unfair prejudice was low, particularly in a judge-alone trial where improper propensity reasoning was unlikely to influence the findings.

The court rejected the appellant’s argument that the time gap of seventeen months rendered the uncharged act too remote, citing precedent that allows both prior and subsequent acts under M.R.E. 404(b). Additionally, the court dismissed the claim that uncharged conduct must be nearly identical to charged offenses to be admissible as evidence of a common plan, emphasizing that substantial similarity suffices.

B. Prejudice Analysis

Even if the military judge had erred, the court found no substantial influence on the findings. Applying the Kohlbek test:

Government’s Case Strength: The prosecution presented strong evidence, including a recorded threat.
Defense’s Case Strength: The defense attempted to undermine MGW’s credibility but was comparatively weaker regarding the threat charge.
Materiality of the Evidence: The uncharged act, while similar to the charged offense, had a limited prejudicial impact.
Quality of the Evidence: The uncharged conduct was less compelling than the direct evidence of the charged offense.

Thus, the court affirmed that any potential error in admitting the uncharged acts did not materially affect the outcome.

In a concurring opinion by Judge Sparks he raises a critical question about the necessity of an M.R.E. 403 balancing test in military judge-alone trials. The key points include:

Concern Over M.R.E. 404(b) Interpretation – Judge Sparks shares Judge Hardy’s concern that precedent may be expanding the “common plan or scheme” exception too broadly. He suggests that the evidence in this case likely demonstrates a pattern of anger rather than a calculated scheme.
Critique of M.R.E. 403 in Bench Trials – The core argument is that the risk of unfair prejudice, which the M.R.E. 403 balancing test aims to mitigate, is irrelevant in a judge-alone trial. This is because military judges are presumed to understand and correctly apply the law, as well as to disregard inadmissible evidence.
Alignment with Federal Courts – Judge Sparks points out that most federal courts do not require a Rule 403 balancing test in bench trials, as the risk of improper influence on a jury is absent.
Judicial Presumption of Integrity – He emphasizes that military judges explicitly state in their rulings how they will consider evidence, reinforcing the presumption that they do not misuse it.

The argument is thought-provoking: If the purpose of M.R.E. 403 is to protect a panel from improper inferences, is it redundant in judge-alone trials? Removing this requirement would streamline proceedings, but it could also invite skepticism about judicial objectivity.

Judge Hardy’s concurring opinion in United States v. Greene-Watson raises concerns about the expansive interpretation of the “common scheme or plan” exception under Military Rule of Evidence (M.R.E.) 404(b)(2). While he agrees with the outcome of the case, he suggests that the Court’s precedent may allow the exception to improperly function as a backdoor for admitting propensity evidence—something M.R.E. 404(b)(1) explicitly prohibits.

I. The Key Issue: Expansion of the “Common Scheme or Plan” Exception

A. The General Rule Against Propensity Evidence (M.R.E. 404(b)(1))

Under M.R.E. 404(b)(1), evidence of an accused’s prior misconduct is generally inadmissible to prove character or propensity. This prohibition aligns with the fundamental principle that defendants should be judged on the specific charges before the court, not on their past behavior or perceived character flaws.

B. The Exception for Common Scheme or Plan (M.R.E. 404(b)(2))

Despite the general prohibition, M.R.E. 404(b)(2) allows such evidence to be admitted for other purposes, including proving a plan. Civilian courts have long permitted the introduction of evidence showing a “plan, design, or scheme” that encompasses the charged offense (United States v. Haimson, 5 C.M.A. 208 (1954)).

However, Judge Hardy argues that the current interpretation of this exception has become overly broad. Instead of requiring evidence that demonstrates a premeditated, organized course of conduct, recent precedents permit admission if the prior acts share mere “common factors” with the charged conduct (United States v. Munoz, 32 M.J. 359 (C.M.A. 1991); United States v. Johnson, 49 M.J. 467 (C.A.A.F. 1998); United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019)).

II. Application in Greene-Watson

In Greene-Watson, the military judge admitted evidence of the appellant’s uncharged misconduct on the grounds that it demonstrated a common scheme or plan of violence and intimidation toward his wife. Hardy questions whether this reasoning is meaningfully distinct from merely showing that the appellant had a propensity for violence against his spouse.

Judge Sparks’ separate concurrence, which Hardy references, characterizes the appellant as “a young man with a short temper.” Hardy suggests that repeated acts of violence stemming from frustration do not necessarily indicate a coordinated or premeditated plan. Instead, they may just reflect a general behavioral tendency—precisely the type of inference M.R.E. 404(b)(1) seeks to prevent.

III. Precedential Issues and Potential for Reconsideration

A. Shift from a Strict to a Lenient Standard

Judge Hardy notes that past precedent, particularly United States v. Brannan, 18 M.J. 181 (C.M.A. 1984), required a very close resemblance between the charged and uncharged acts for them to qualify as a common plan. However, cases such as Munoz, Johnson, and Hyppolite later established a more lenient “common factors” test, which does not require the same level of similarity.

This looser standard may have originated in cases involving child abuse, where courts struggled with evidentiary limitations in proving repeated patterns of misconduct. However, as Hardy points out, modern rules such as M.R.E. 413 (which allows evidence of prior sexual offenses) and M.R.E. 414 (which allows evidence of prior child molestation) now address those concerns directly. Thus, reliance on broad interpretations of M.R.E. 404(b)(2) may no longer be necessary.

B. Future Reconsideration of the “Common Scheme or Plan” Exception

Hardy explicitly states that he would be open to reconsidering the scope of the exception in a future case. He emphasizes the need to balance the government’s interest in presenting relevant evidence against the defendant’s right to a fair trial.

A more restrictive interpretation of the rule could require:

A higher threshold of similarity between the uncharged and charged acts (e.g., requiring evidence of an overarching, premeditated plan rather than merely identifying “common factors”).
A stronger link to a specific objective (e.g., proving that the uncharged acts were deliberate steps in an orchestrated scheme rather than mere repetitions of similar misconduct).

IV. Implications for Military Justice

Potential for More Stringent Evidentiary Standards
- If the Court revisits this issue, it may establish a more rigorous test for admitting evidence under M.R.E. 404(b)(2), reducing the likelihood of unfair prejudice against defendants.
Greater Protection Against Propensity-Based Convictions
- A narrower interpretation would ensure that accused service members are not convicted based on their past behavior rather than the specific charges against them.
Possible Divergence from Civilian Jurisprudence
- If military courts tighten the standard for admissibility, they may diverge from federal courts interpreting Fed. R. Evid. 404(b). However, this could be justified by the unique demands of military justice.
Reevaluation of Older Precedents
- Cases like Munoz, Johnson, and Hyppolite may need to be reconsidered in light of newer evidentiary rules (such as M.R.E. 413 and 414) that address prior misconduct in specific contexts.

Conclusion

Judge Hardy’s concurrence signals a growing concern that military courts have stretched the “common scheme or plan” exception too far, effectively allowing propensity evidence to enter under a different label. While he agrees with the outcome in Greene-Watson, he suggests that future cases should revisit this issue to better align M.R.E. 404(b)(2) with its intended purpose—admitting relevant, probative evidence without unfairly prejudicing the accused.

If the Court does reconsider this precedent, it may tighten the requirements for admitting uncharged misconduct, reinforcing the foundational principle that an accused should be judged for the specific crime charged—not their past behavior.