dissenting:
In this case, the prosecution was allowed, without objection, to introduce evidence that previous to the assault with which she was charged, appellant had intentionally burned her baby son by immersing him in scalding water and had repeatedly subjected him to brutal beatings, including whippings with a looped belt or electrical cord. My brothers conclude that this evidence was admissible to prove intent and non-accident, or at least was sufficiently close to being admissible to justify invocation of the waiver doctrine. I am convinced that the members convicted appellant simply because they believed she was a bad person who had a propensity for abusing her child. I am equally convinced that this came about as the result of inadequate representation by appellant’s trial defense counsel, whose failure to object permitted the introduction of evidence of uncharged misconduct which should have been excluded under Military Rules of Evidence 404 and 403. *666I am also convinced that the admission of that evidence was plain error.1
I. ADMISSIBILITY
Military Rule of Evidence 404(b), which is based on the corresponding Federal Rule of Evidence, provides:
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.
Under this rule, evidence of uncharged misconduct may not be used solely to demonstrate the defendant’s bad character. Even though such evidence would logically be relevant to show guilt in cases like the one at hand, since persons of violent tendencies are more likely to commit assaults than persons of more peaceable nature,2 •the rule prohibits such evidence because of its tendency to create unfair prejudice. Thus, unless uncharged misconduct evidence can be used to prove something other than “the character of an accused in order to show that the accused acted in conformity therewith,” such evidence is categorically inadmissable.
As noted by my brother Felder, evidence of uncharged misconduct which is offered to prove something other than the accused’s propensity to commit crimes is analyzed in two steps, first for relevance to an issue other than the accused’s character and then by balancing its probative value against its prejudicial effect. Under Military Rule of Evidence 401, evidence is relevant when it has “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.” Military Rule of Evidence 403 requires that “the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403.”3 United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).
The government argues, and my brother Naughton agrees, that the evidence in question was admissible to prove intent to inflict grievous bodily harm. Of course the government had the burden of proving all the elements of the offense beyond reasonable doubt, including the element that the perpetrator intended to inflict grievious bodily harm. It must be remembered, however, that appellant was charged with inflicting traumatic injuries to her son’s head. That being the case, the evidence in question really does nothing to carry the government’s legitimate burden with respect to intent. Evidence that the perpetrator had previously whipped or scalded the victim would have no tendency to prove that he or she understood and therefore intended the effects of trauma on an infant’s head. If one were conducting research on the effects of dropping a child on its head from a great height, one would hardly be expected to begin by boiling the child and observing the resulting blisters.
Even if the evidence of prior misconduct had been relevant to prove intent, it would have had no discemable probative value for that purpose in the case at bar. It was clearly established that whoever injured the victim did so by administering force to the infant’s head which was equivalent to dropping him from a second or third story window or picking him up by the ankles and smashing him into a wall. Obviously, any sane human being knows that the use of such massive force against an infant’s *667head will inevitably result in grievous bodily harm. As. a practical matter, the government’s uncontroverted evidence about the nature of the victim’s injuries and the degree of force required to inflict them took the element of intent out of contention in this case. This, coupled with the highly prejudicial nature of the evidence (discussed below), means that Rule 403, if invoked, would prohibit reception of the evidence if offered to prove intent.
In my view, the only manner in which the evidence of previous whipping and scalding tended to show an an intent to inflict harm during the incident for which appellant was on trial was by showing that appellant had a trait of character which had led her to inflict serious harm on her child in the past. This is categorically prohibited by Rule 404(b).
Nevertheless, my brother Naughton concludes that the evidence was admissible to show absence of accident, since the trial defense counsel cross-examined the government’s medical witnesses and elicited testimony that the victim’s injuries could have been caused by accident and were not necessarily inflicted by another person. It has been argued by some that the sheer number of injuries suffered by a child during a relatively short period can show that it is less likely that a charged injury was accidental than if it had been the only injury. See State v. Silva, 153 Me. 89, 134 A.2d 628, 632 (1957); E. Imwinkelried, Uncharged Misconduct Evidence § 4:03 (1984).4 The problem with this arguement when applied to the case at bar, however, is that it does not address the risk of prejudice created by the introduction of the evidence in question. As noted above, it was clear that appellant was the one who had inflicted the previous injuries. The prejudicial effect of evidence that appellant had committed such appalling attacks on her child can scarcely be overestimated. Consider, for example, the emotions which are aroused merely by reading the sterile summary of that evidence in the lead opinion. I find the capacity of such evidence to stir the passions of the members to be simply enormous and do not believe that it can rationally be discounted. Thus, in my view, any probative value with respect to an issue of accident pales in comparison to the prejudicial effect this evidence must have had, and this is clear to me even though the rule is that in weighing the possible prejudice against the evidence’s probative value, the balance should normally be struck in favor of admission. United States v. Teeter, 12 M.J. 716, 725 (A.C.M.R.1981), aff'd in part and rev’d in part, 16 M.J. 68 (C.M.A.1983).
I am likewise unpersuaded by the argument that the evidence was admissible to prove the identity of the victim’s assailant. True it is that the evidence is powerfully persuasive that it was appellant who crushed her child’s skull. The problem is that this effect is achieved only in the way which Rule 404(b) categorically forbids, i.e., by showing that appellant acted in conformity with an evil character. Evidence which truly showed an identifiable modus operandi would have legitimate probative value to show identity. This might, in a given case, counterbalance its prejudicial effect. Cf. United States v. White, 19 M.J. 995 (A.C.M.R.), pet. granted, 21 M.J. 146 (C.M.A.1985). Here, there is nothing about the means or nature of the previous attacks which tends to identify appellant as the person responsible for the assault charged at trial; once again, whipping and *668scalding are obviously dissimilar to blunt-force attacks.
Had an objection been lodged at trial to the introduction of this evidence, the conclusions just stated would compel a holding that the military judge abused his discretion by admitting it. But there was no defense objection, so we are led to the interlocking issues of whether the admission of this evidence amounted to plain error and whether appellant’s defense counsel adequately represented her.
II. PLAIN ERROR
Plain error exists only when reversal is necessary in order to avoid a miscarriage of justice, preserve the integrity or reputation of the judicial process, or correct the denial of a fundamental right of the accused. United States v. Fisher, 21 M.J. 327 (C.M.A.1986); United States v. McGary, 12 M.J. 760, 762 (A.C.M.R.1981); United States v. Beaudion, 11 M.J. 838, 840 (A.C.M.R.), pet. denied, 12 M.J. 181 (C.M.A.1981). I part company with my brother Felder on the application of these criteria to the case at bar. The absence of a deliberate attempt on the part of the trial counsel to inflame the members I view as a straw man; in my opinion, the evidence inevitably had that effect whether it was intended to or not. As for relying on the special qualifications of court-martial members, not only do I find the evidence in question fully capable of swaying the best-qualified court-martial member, but it seems to me that the adoption of that rationale would render Rule 404 a dead letter in military practice, and Rule 403 as well.
The government’s case on identity was undeniably a weak one, yet the members necessarily found that appellant had inflicted the victim’s injuries. The evidence of appellant’s evil character was extraordinarily powerful. I cannot escape the conclusion that the members identified appellant as the culprit simply because they had been persuaded that she was a bad person who had a propensity for abusing her child. Cf. United States v. Cameron, 21 M.J. 59 (C.M.A.1985). That is a miscarriage of justice.5
III. ADEQUACY OF
REPRESENTATION
Conflict of interest situations aside, inadequate representation of counsel consists of “a breach of professional competence coupled with a showing of a ‘reasonable probability’ of outcome-determinative prejudice.” United States v. Davis, 20 M.J. 1015, 1018 (A.C.M.R.1985). This basic test, derived from Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), United States v. Jefferson, 13 M.J. 1 (CMA 1982), and United States v. Rivas, 3 M.J. 282 (CMA 1977), includes the principle announced in Rivas that “where inaction occurs at a critical point where action is compelled by the situation ... then the accused has been denied [effective assistance of counsel].” Id. at 289.
There can be no serious doubt that the introduction of the horrifying evidence of previous abuse admitted in the case at bar was a “critical point” in appellant’s trial. Neither, it seems to me, can there be any serious suggestion that appellant’s counsel was pursuing some trial tactic by declining to object, since an objection (or better still, a motion in limine) would have risked nothing and could well have gained an acquittal. As to prejudice, the weakness of the government’s case on identity coupled with the powerfully inflamatory nature of the evidence, noted above, are more than sufficient to “undermine confidence in the *669outcome of appellant’s trial. See Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
I would set aside the findings of guilty and the sentence and authorize a rehearing.
. I agree that the evidence clearly tied the prior misconduct to appellant, satisfying United States v. Janis, 1 M.J. 395 (CMA 1976). This fact reinforces my conclusions regarding the harm done by the admission of this evidence and counsel’s failure to object.
. Clinical studies indicate that the best predictor of future violence is past violence. See Monahan, Predicting Violent Behavior: An Assessment of Clinical Techniques 92, 104 (1981).
. I.e., the evidence must not create undue confusion, delay, or waste of time.
. While the basic premise from which this theory proceeds is logical enough, it seems to me that its proponents load it with more weight than it can carry. Notwithstanding my disagreement with most applications of this theory and particularly with its application to the case at bar, I will observe that evidence of frequent injuries would seem to have much the same degree of value for rebutting accident no matter who was the cause. Thus it would appear that in order to qualify for admission to show non-accident (assuming that they are admissible at all) such injuries need not be shown to have been inflicted by the accused. Of course, if there were evidence that such injuries were inflicted by the accused, the government would have to meet the "plain, clear, and conclusive" standard or fall afoul of the rule adopted in United States v. Janis, supra, 1 M.J. at 397 (CMA 1976).
. There is a disturbing tendency on the part of some courts to create expansive interpretations of evidentiary rules in child abuse cases in the name of necessity. While necessity is a legitimate and indeed a basic element in evidence theory, we cannot afford to lose sight of the other considerations which are essential to fair- - ness and accurate results, such as avoidance of evidence which inflames rather than illuminates. That is especially true in child abuse cases, which by their very nature tend to inflame the passions of those who hear them. I am especially wary of cases which simply announce the admissibility of pattern-of-abuse evidence without explicit analysis; merely saying a thing is so does not make it so. It seems to me that a large proportion of the cases relied upon by my brother Naughton fall into that category.