Modus Operandi evidence.

Prof. Peter Tillers, How Distinctive Must a Modus Operandi Be to Serve as a "Signature"?  Tillers on Evidence and Inference, 13 February 2009.

Military Rule of Evidence 404(b), United States v. Huddleston, 485 U.S. 681 (1988), are at the heart of Prof. Tillers' critique.  In his view the rules requiring more than just happenstance are being corroded as to become meaningless.

The problem with this tendency (if you think it is a problem) is that if continued, it leads to the annihilation of all rules of evidence whose reason for being rests on their capacity to increase the accuracy of inference because of the accuracy of the generalizations those rules harbor about nature and humanity.

The Military Rules of Evidence are not easily accessible on the web without wading through the M.C.M.  So, here is the ever useful Army 156th OFFICER BASIC COURSE, gouge, see page AA-12.  For comparison here are the military and federal rules. 

Fed. R. Evid. 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Mil. R. Evid. 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, that upon request by the accused, the prosecution shall provide reasonable notice in advance of trial, or during trial if the military judge excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The three prong Reynolds test is the basic military starting point for the 404(b) issues Prof. Tillers considers.  United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992).

[W]hen we look to evidence of uncharged misconduct, we are testing its admissibility under at least three standards:

1. Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts?

2. What "fact . . . of consequence" is made "more" or "less probable" by the existence of this evidence?

3. Is the "probative value . . . substantially outweighed by the danger of unfair prejudice"?

If the evidence fails to meet any one of these three standards, it is inadmissible.

United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)(citations omitted).

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