Definition of relevant evidence.
(a) Relevant evidence means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.
(b) Relevant
evidence generally admissible; irrelevant evidence inadmissible. All relevant
evidence is admissible, except as otherwise provided by the Constitution of the
United States or the State of New York as applied to members of the Armed
Forces or State organized militia, the code, these rules, this Chapter, or any
Act of Congress applicable to members of the Armed Forces. Evidence which is
not relevant is not admissible.
(c)
Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of
time. Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the members, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.
(d) Character evidence not admissible to
prove conduct; exceptions; other crimes.
(1)
Character evidence generally. Evidence of a person's character or a trait of a
person's character is not admissible for the purpose of proving that the person
acted in conformity therewith on a particular occasion, except:
(i) Character of the accused. Evidence of a
pertinent trait of the character of the accused offered by an accused, or by
the prosecution to rebut the same.
(ii) Character of victim. Evidence of a
pertinent trait of character of the victim of the crime offered by an accused,
or by the prosecution to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in a homicide or assault
case to rebut evidence that the victim was an aggressor.
(iii) Character of witness. Evidence of the
character of a witness, as provided in Mil. R. Evid. 607, 608, and
609.
(2) Other crimes,
wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show that the person acted 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.
(e) Methods of proving character.
(1) Reputation or opinion. In all cases in
which evidence of character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony in the form of
an opinion. On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
(2) Specific
instances of conduct. In cases in which character or a trait of character of a
person is in essential element of an offense or defense, proof may also be made
of specific instances of the person's conduct.
(3) Affidavits. The defense may introduce
affidavits or other written statements of persons other than the accused
concerning the character of the accused. If the defense introduces affidavits
or other written statements under this paragraph, the prosecution may, in
rebuttal, also introduce affidavits or other written statements regarding the
character of the accused. Evidence of this type may be introduced by the
defense or prosecution only if, aside from being contained in an affidavit or
other written statement, it would otherwise be admissible under these
rules.
(4) Definitions. Reputation
means the estimation in which a person generally is held in the community in
which the person lives or pursues a business or profession. Community in the
Armed Forces includes a post, camp, ship, station, or other military
organization regardless of size.
(f) Habit; routine practice. Evidence of the
habit of a person or of the routine practice of an organization; whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant
to prove that the conduct of the person or organization on a particular
occasion was in conformity with the habit or routine practice.
(g) Subsequent remedial measures. When, after
an event, measures are taken which, if taken previously, would have made the
event less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in connection with the
event. This subdivision does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measure if controverted, or
impeachment.
(h) Compromise and
offer to compromise. Evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept, a valuable
consideration in compromising or attempting to compromise a claim which was
disputed as to either validity or amount, is not admissible to prove liability
for or invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This subdivision
does not require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations. This
subdivision also does not require exclusion when the evidence is offered for an
other purpose, such as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
(i)
Payment of medical and similar expenses. Evidence of furnishing or offering or
promising to pay medical, hospital, or similar expenses occasioned by an injury
is not admissible to prove liability for the injury.
(j) Inadmissibility of pleas, plea
discussions, and related statements.
(1) In
general. Except as otherwise provided in this subdivision, evidence of the
following is not admissible in any court-martial proceeding against the accused
who made the plea or was a participant in the plea discussions:
(i) a plea of guilty which was later
withdrawn;
(ii) a plea of nolo
contendere;
(iii) any statement
made in the course of any judicial inquiry regarding either of the foregoing
pleas; or
(iv) any statement made
in the course of plea discussions with the convening authority, staff judge
advocate, trial counsel or other counsel for the government which do not result
in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (a) in any
proceeding wherein another statement made in the course of the same plea or
plea discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (b) in a court-martial proceeding for
perjury or false statement if the statement was made by the accused under oath,
on the record and in the presence of counsel.
(2) Definitions. A statement made in the
course of plea discussions includes a statement made by the accused solely for
the purpose of requesting disposition under an authorized procedure for
administrative action in lieu of trial by court-martial; on the record includes
the written statement submitted by the accused in furtherance of such
request.
(k) Liability
insurance. Evidence that a person was or was not insured against liability is
not admissible upon the issue whether the person acted negligently or otherwise
wrongfully. This subdivision does not require the exclusion of evidence of
insurance against liability when offered for another purpose, such as proof of
agency, ownership, or control, or bias or prejudice of a witness.
(l) Nonconsensual sexual offenses; relevance
of victim's past behavior.
(1)
Notwithstanding any other provision of these rules or this Chapter, in a case
in which a person is accused of a nonconsensual sexual offense, reputation or
opinion evidence of the past sexual behavior of an alleged victim of such
nonconsensual sexual offense is not admissible.
(2) Notwithstanding any other provision of
these rules or this Chapter, in a case in which a person is accused of a
nonconsensual sexual offense, evidence of a victim's past sexual behavior other
than reputation or opinion evidence is also not admissible, unless such
evidence other than reputation or opinion evidence is:
(i) admitted in accordance with subparagraphs
(3)(i) and (3)(ii) and is constitutionally required to be admitted;
or
(ii) admitted in accordance with
paragraph (3) and is evidence of:
(a) past
sexual behavior with persons other than the accused, offered by the accused
upon the issue of whether the accused was or was not with respect to the
alleged victim, the source of semen or injury; or
(b) past sexual behavior with the accused is
offered by the accused upon the issue of whether the alleged victim consented
to the sexual behavior with respect to which the nonconsensual sexual offense
is alleged.
(3)
(i) If
the person accused of committing a nonconsensual offense intends to offer under
paragraph (2) of this subdivision evidence of specific instances of the alleged
victim's past sexual behavior with respect to which the nonconsensual sexual
offense is alleged.
(ii) The notice
described in subparagraph (i) of this paragraph shall be accompanied by an
offer of proof. If the military judge determines that the offer of proof
contains evidence described in paragraph (2) of this subdivision, the military
judge shall conduct a hearing, which may be closed, to determine if such
evidence is admissible. At such hearings the parties may call witnesses,
including the alleged victim, and offer relevant evidence. In a case before a
court-martial composed of a military judge and members, the military judge
shall conduct such hearings outside the presence of the members pursuant to
Military Law, section 130.39(a).
(iii) If the military judge determines on the
basis of the hearing described in subparagraph (ii) of this paragraph that the
evidence which the accused seeks to offer is relevant and that the probative
value of such evidence outweighs the danger of unfair prejudice, such evidence
shall be admissible in the trial to the extent an order made by the military
judge specifies evidence which may be offered and areas with respect to which
the alleged victim may be examined or cross-examined.
(4) For purposes of this subdivision, the
term past sexual behavior means sexual behavior other than the sexual behavior
with respect to which a nonconsensual sexual offense is alleged.
(5) A nonconsensual sexual offense is a
sexual offense in which consent by the victim is an affirmative defense or in
which the lack of consent is an element of the offense. This term includes
rape, forcible sodomy, assault with intent to commit rape or forcible sodomy,
indecent assault, and attempt to commit such offenses.