When calling an accused “a predator” and arguing that he was “out on the prowl” isn’t a reference to criminal propensity
In an unpublished decision in United States v. Rude, No. 20120139 (A. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), a three-judge panel of the Army CCA affirms a sexual assault prosecution where the Government’s theme was that the appellant was “a predator”:
In the government’s opening statement, trial counsel referred to appellant as “a predator . . . lurking on campus” and that he and JP were in search of prey during the course of the party.
Slip op. at 4. And:
The government argued that appellant’s touching of SB2 followed by the assault on SB1 was evidence of their conspiracy to commit rape, that “[JP] and [appellant] were out on the prowl,” that their approach did not work with SB2, so they tried a different approach with SB1.
Slip op. at 7. The appellant was convicted of two separate sexual assaults during one college party at a friend’s house. At trial, the Government sought to use the evidence of each alleged assault to prove the occurrence of the other:
Prior to closing arguments, and during a hearing outside of the presence of the members on the subject of instructions, government counsel objected to the judge’s proposed spillover instruction. Trial counsel essentially argued that the instruction was not appropriate because the evidence of assault against two different women was relevant propensity evidence under Military Rule of Evidence 413: “it shows a propensity of–the man is committing sexual assault against one person, then that shows a propensity that he’s more likely to do it against the other person.”
Slip op. at 5. Nevertheless, writing for the panel Judge Krauss concludes that:
[T]rial counsel never made any reference or argument before the panel members to or about propensity evidence. The government never characterized the evidence as propensity evidence and did not present the evidence relevant to the one charge as evidence of appellant’s propensity or predisposition to criminal activity generally. Rather, trial counsel presented the evidence as simply relevant to establish appellant’s lustful intent.
Slip op. at 11. Perhaps the trial counsel didn’t use the word propensity in argument, but I think that characterizing an accused as “a predator” and saying that he was “out on the prowl” when he committed a pair of assaults is a propensity argument; particularly when counsel admits as much.