On Mil. R. Evid. 412

When arguing for admission of MRE412 evidence, counsel should make sure the MJ knows she can give a limiting instruction.  And for that matter trial counsel should definitely ask for one.  The appellate courts regularly approve of limiting instructions when it’s the accused having bad evidence or erroneous evidence introduced against them.  See e.g. United States v. Dacosta, 63 M.J. 575 (A. Ct. Crim. App. 2006) for a discussion of limiting instructions regarding MRE 413.   See also, United States v. Morris, 47 M.J. 695 (N-M Ct. Crim. App. 1997)(military judge eliminated any possible prejudice by giving a limiting instruction that the members could not use this admission as evidence that the appellant had a criminal disposition or was a bad person.).  There is no reason a limiting instruction cannot aid in admitting relevant evidence.

See e.g., United States v. Tiller, 41 M.J. 823, 827 (N.M.C.M.R. 1995):

This evidence, if admitted, would not be unduly prejudicial under Mil. R. Evid. 412(c)(3), or Mil. R. Evid. 403, with a proper limiting instruction to the members. United States v. Dorsey, 16 M.J. [1 (C.M.A. 1983] at 7-8 (holding that proper limiting instruction would protect against unfair prejudice and also questioning use of a balancing test if the evidence is determined to be constitutionally required).

In Dorsey, the court said,

We reject trial counsel’s first argument because the remedy of exclusion is overly drastic to protect against the potential prejudice he suggests. See 128 U.Pa. L.Rev. at 577; Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant’s Favor: The Implications of Davis v. Alaska, 73 Mich. L. Rev. 1465, 1491 (1975) (hereafter cited as Note). Under the circumstances of the present case, an instruction limiting the use of the evidence would be more appropriate. Mil. R. Evid. 105.

See also, United States v. Browne, 2005 CCA LEXIS 233 (N-M Ct. Crim. App. July 21, 2005)(Any concern regarding the members’ misuse of the evidence could have been dealt with in a limiting instruction.)

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