The question of what the government can introduce about an accused’s past at court-martial is governed by the Military Rules of Evidence, which balance the accused’s right to a fair trial against the prosecution’s interest in presenting a complete picture of the person before the panel. Prior criminal convictions, prior acts of misconduct, and records from civilian courts all fall under a framework that is designed to prevent the accused from being convicted based on character rather than conduct.
In practice, the line between permissible and impermissible use of prior record is contested in many trials. Prosecutors look for theories that bring in damaging history under exceptions to the general prohibition, and defense attorneys file motions to exclude it. The outcome of those pretrial motions can determine whether the panel hears evidence that has nothing to do with the charged offense but carries enormous potential to prejudice the result.
Military Rules of Evidence on Prior Bad Acts
Military Rule of Evidence 404(b) governs the use of prior bad acts, prior crimes, and other instances of misconduct at court-martial. The general rule is that such evidence is not admissible to prove that the accused has a character for a certain type of conduct and acted in conformity with that character on the occasion charged. This prohibition is designed to prevent the panel from convicting because the accused seems like the kind of person who would commit the offense, rather than because the evidence proves they actually did.
Exceptions to this general prohibition are significant and frequently litigated. Prior acts may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Prosecutors who cannot introduce prior record as character evidence look for ways to fit it within one of these exceptions, and defense attorneys must be prepared to contest that framing through pretrial motions that require the government to specify the exact theory under which the prior act evidence is offered and how it is relevant to an issue that is actually in dispute.
When Prior Convictions Are Admissible for Impeachment
Military Rule of Evidence 609 governs the use of prior convictions to attack the credibility of a witness, including the accused if they choose to testify. A prior conviction for a crime involving dishonesty or false statement is admissible for impeachment purposes regardless of the punishment imposed. A prior conviction for other crimes may be admissible if the crime was punishable by imprisonment for more than one year and the court finds that the probative value of the evidence outweighs its prejudicial effect.
The timing of the prior conviction relative to the trial affects the admissibility analysis. Convictions that are more than ten years old may be excluded if the court finds that their probative value does not substantially outweigh their prejudicial effect. Defense counsel who are advising an accused about whether to testify must consider the impeachment risk posed by any prior conviction, whether civilian or military, and must assess how that risk compares to the benefit of the accused’s direct testimony.
The Difference Between Character Evidence and Propensity Evidence
The prohibition in Military Rule of Evidence 404(b) on using prior bad acts to prove propensity is one of the most litigated evidentiary issues in court-martial practice. The rule prohibits the government from arguing that the accused committed the charged offense because they have a history of similar conduct. But the exceptions to this prohibition are significant and frequently invoked, and the line between permissible and impermissible use of prior bad act evidence is often contested.
In Article 120 cases specifically, Military Rule of Evidence 413 creates a special exception to the general prohibition. MRE 413 allows evidence of prior sexual offenses to be admitted for any relevant purpose, including propensity, in cases involving sexual assault. This exception fundamentally changes the prior bad acts analysis in Article 120 cases and means that prior sexual misconduct, whether charged or uncharged, may be admissible against an accused in ways that would not be permitted in a non-sexual offense case. Defense counsel must be prepared to litigate MRE 413 issues aggressively in sexual assault cases.
How the Defense Limits Damaging Prior Record Evidence
Pretrial motions are the primary tool for limiting the use of damaging prior record evidence. A motion in limine filed before trial can require the government to specify the theory under which it seeks to introduce prior bad acts, the specific prior conduct it intends to use, and the relevance of that conduct to an issue actually in dispute. A ruling that limits the use of prior record evidence before trial is obtained is far more valuable than an objection made after the damage has been done in front of the panel.
Defense counsel who identify potentially damaging prior record evidence early in the case must assess both the likelihood that the government will attempt to introduce it and the strength of the legal arguments for exclusion. Evidence that is admissible under MRE 413 in an Article 120 case requires a different analysis than evidence offered under MRE 404(b) in a general offense case, and the applicable framework must be correctly identified before the motion is drafted.
Pre-Trial Motions That Can Keep Prior Offenses Out
Motions in limine addressing prior bad act evidence must be filed within the deadline set by the military judge’s scheduling order and must be supported by specific legal argument connecting the facts of the prior conduct to the applicable evidentiary rule. The government must respond, and the military judge will rule on whether the evidence is admissible and, if so, for what purpose and to what extent.
A favorable ruling excluding prior record evidence before trial removes a significant potential source of prejudice from the proceeding. A ruling that limits the government to using prior convictions only for impeachment if the accused testifies gives the defense the ability to make the tactical decision about testimony knowing exactly what prior record risk is in play. These pretrial rulings shape the trial’s evidentiary landscape before the panel is seated, and the effort invested in obtaining favorable rulings before trial consistently pays dividends in the proceeding itself.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.