(concurring in part and dissenting in part):
I agree with the majority opinion except as to its conclusion concerning the risk-of-unfair-prejudice analysis required under Mil. R.Evid. 403, Manual for Courts-Martial, United States (1995 ed.). I recognize applicability of Mil.R.Evid. 609 so as to permit admissibility of the evidence of prior convictions that are in controversy here. Usually, however, such evidence speaks only to the credibility of the witness, with its impact on an accused limited to the resultant weight that the members are willing to give that witness’ testimony.
Here, however, the evidence of previous convictions did more and, in the process, carried a substantial risk of impacting on the determination of this accused’s guilt in a more direct and impermissible way. These particular prior convictions were for the same offenses then before the members of Bell’s court-martial. Under these rather unusual circumstances, I see a substantial likelihood that this evidence sent an alluring but impermissible message to the members: “Two other courts-martial already have found that these three men, including this accused, are guilty of conspiracy.”
In my view this “danger of unfair prejudice” “substantially outweighed” the “probative value” of the evidence as impeachment. Mil.R.Evid. 403. It is in just such unique situations as this that the Rule is most valuable. Accordingly, I would reverse the decision below, set aside the affected findings and the sentence, and authorize a rehearing.