Here is the granted issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.
Appellant was charged with two specifications of forcible sodomy with a child under
the age of sixteen, in violation of Article 125, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 925 (2006), and convicted . . . of one count of sodomy with a child who had attained the age of twelve but was under the age of sixteen, and one count of indecent acts with a child, in violation of Articles 125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (2006), respectively.
The military judge allowed the prosecution to introduce suggestive file names under Mil. R. Evid. 414 and 404(b). No images connected to the file names could be recovered by DCFL. As anyone familiar with computer forensics knows, file names
The computer filenames were treated as synonymous with possession or attempted possession of child pornography, which, under the facts of this case, we conclude is not a “qualifying” offense under M.R.E. 414. Nor, under the facts of this case, were the filenames admissible under M.R.E. 404(b) – the prejudicial effect of the evidence substantially outweighs whatever marginal relevance and probative value these computer filenames have to the charged offenses.