Res Gestae and the Right to Testify: CAAF's Decision in United States v. Washington

In United States v. Washington, CAAF reversed an Air Force abusive sexual contact conviction. The military judge had struck a substantial portion of the accused's direct testimony after concluding that the testimony implicated M.R.E. 412. The majority held that the judge abused his discretion because the struck testimony was about circumstances intrinsic to the charged offense. The Court returned to a familiar evidentiary doctrine at the center of M.R.E. 412 litigation: res gestae.

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What Res Gestae Is — and What It Is Not
Res gestae, the Latin for “things done.” In modern federal evidence practice, the label captures conduct and statements so closely tied to the charged offense that they do not qualify as “other” acts at all. Federal circuits articulate the test in three overlapping ways. Conduct qualifies as intrinsic when it (1) arises out of the same transaction or series of transactions as the charged offense, (2) completes the story of the crime, or (3) intertwines inextricably with evidence of the charged offense. CAAF draw directly from United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007), and similar authority.

The functional point matters more than the label. When a court treats evidence as intrinsic, the evidence sits outside Rule 404(b)'s notice and propensity machinery and outside Rule 412's procedural gate. The Fifth Circuit put the point directly in United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016): intrinsic evidence is “not other bad acts evidence at all, but rather additional facts surrounding the charge at issue.” Military courts have applied the same logic for decades. United States v. Thomas, 11 M.J. 388 (C.M.A. 1981), distinguishes admissible uncharged misconduct that is “inextricably related in time and place” to the charged offense from other-acts evidence that Rule 404(b) excludes.

Three boundaries shape the doctrine. First, res gestae is not a catch-all admissibility theory. Courts reject it when the proffered conduct stands temporally or causally apart from the charged event. Second, M.R.E. 403 balancing still applies even to intrinsic evidence. Third, and central to Washington, the res gestae label does not by itself defeat the protections built into M.R.E. 412. The intrinsic-conduct analysis instead answers a prior question: whether the evidence qualifies as “other” sexual behavior at all. M.R.E. 412(d) defines other sexual behavior as “any sexual behavior, not encompassed by the alleged offense.” Conduct that forms part of the charged transaction is encompassed, and Rule 412 does not bar it.

Res gestae evidence is common in the prosecution's case. The evidence may establish an accused's grooming behavior, immediate flight, statements made during the charged transaction, and surrounding conduct that contextualizes the charged act. Although intrinsic evidence escapes M.R.E. 404(b)'s notice requirement, prosecutors still flag the theory in pretrial filings to head off late-trial litigation. Trial counsel should expect defense challenges that test temporal proximity, causal connection, and whether the proffered conduct genuinely completes the story or impermissibly broadens the offense.

Defense counsel use res gestae to admit context that supports consent, mistake of fact, identification disputes, or innocent explanation. The doctrine carries particular weight in Article 120 cases, where Article 120(g)(7), UCMJ (formerly (g)(8)(C)), directs the factfinder to consider “[a]ll the surrounding circumstances” in determining consent. CAAF underscored this connection in Washington and again in United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025), and United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024). Where the surrounding circumstances are intrinsic to the charged event, defense counsel should argue that the evidence falls outside Rule 412 by definition, rather than just reliance on an exception.

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First Lieutenant Washington was charged with one specification of abusive sexual contact under Article 120(d), UCMJ. The alleged victim, CP, testified that after a night of drinking, the accused kissed him on a hotel bed and reached down his pants twice. CP said he told the accused, “I'm not into you. I'm not into that or anything like that.”

The defense theory rested on consent and mistake of fact. The accused testified that he and CP shared a lasting hug, lay down on the bed, talked about their dating lives, and that the accused touched CP's thigh as a natural escalation of a consensual, sexualized exchange. He denied ever touching CP's genitals. Pretrial, the defense had foreshadowed exactly this issue, telling the military judge that CP's heterosexuality could not be presented as foreclosing consensual conduct without opening the door to a defense response.

During a closed Article 39(a) session, the military judge concluded that the accused's testimony about the hug, lying down, the thigh touch, and CP's statement that men and women had “come on to him” fell within M.R.E. 412(a)(1) as other sexual behavior or, alternatively, within M.R.E. 412(a)(2) as sexual predisposition evidence. The judge offered the defense two options: cross-examine the accused in closed session under Rule 412 procedures, or accept an instruction telling the panel to disregard the testimony. The defense refused the closed cross-examination. The judge struck the testimony.

The defense argued throughout that the conduct in question was res gestae of the charged offense. Two panel members visibly struggled with the resulting instruction, with one asking whether they were to disregard “that it was consensual or just disregard the portion of sexual orientation.” The judge replied, “Both.”

The majority agreed with the defense. Judge Johnson wrote that the uncharged conduct — the hug, lying on the bed, the thigh touch, CP's objection to the thigh touch — was “intrinsic to, not separate from, the charged conduct.” She Court connected M.R.E. 412(d)'s definition of “other” sexual behavior to the same intrinsic-evidence framework that governs Rule 404(b), citing United States v. Peel, 29 M.J. 235 (C.M.A. 1989), and the Advisory Committee Note to Federal Rule 412.[1] Conduct that is part of a single criminal episode, the Court reasoned, cannot be “other” conduct.

The Court treated the two pieces of CP-related testimony separately. CP's relationship with his girlfriend was already in evidence through the Government's case, was not Rule 412 material under United States v. Alston, 75 M.J. 875 (A. Ct. Crim. App. 2016), and the defense never elicited content beyond its existence. CP's statement that men and women had flirted with him described others' behavior, not CP's mode of dress, speech, or lifestyle, so it did not satisfy the textual definition of sexual predisposition in M.R.E. 412(d).

Judge Johnson also found that the Government had opened the door. Trial counsel introduced CP's statement that he was “not into” the accused or “that or anything like that,” using sexual orientation to imply impossibility of consent. CAAF reaffirmed United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009), holding that an accused must be permitted to rebut that inference.

Finally, CAAF held the remedy was disproportionate. Even if some of the testimony had been Rule 412 material, the judge struck testimony to which no party had objected and to which a prior ruling had already deemed admissible. Striking the consent narrative violated the accused's Sixth Amendment right to testify and to present a complete defense, and the Government could not show harmlessness beyond a reasonable doubt under United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. 2019). The Charge and Specification were set aside.

Judge Maggs dissented and would have affirmed on a different ground entirely. He read the case through M.R.E. 301(e)(1) and Brown v. United States, 356 U.S. 148 (1958), arguing that an accused who testifies on direct examination cannot then refuse to be cross-examined on related matters in a Rule 412 session.

Good that trial counsel often put more in the M.R.E. 404(b) than they might need to. By the same token, good on defense counsel who make a motion in limine for evidence that may not be within M.R.E. 412. Everyone benefits from early litigation. The military judge has time to first decide whether the evidence is "other acts" or "res gestae." And so long as any ruling is not labeled as preliminary, the issue is preserved. Of course, defense must always keep their ears open for the not-unusual opening of the door by trial counsel.

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[1] Unlike the MCM, the Federal Rules Advisory Committee Notes, discussions, and procedures are an excellent resource for understanding the Military Rules of Evidence. The FRAC is an outstanding example of transparency in the rulemaking process.