In an unpublished decision in United States v. Rude, No. 20120139 (A. Ct.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.

6 Responses to “When calling an accused “a predator” and arguing that he was “out on the prowl” isn’t a reference to criminal propensity”

  1. Monday morning QB says:

    I don’t know.  I think if you preface what you are saying with “The evidence will show; the facts will show, etc, etc.,” it’s okay.  Of course, when you do that you better have the evidence to support it.  I see it as a double edged sword that can help you or hurt you.  I mean how different is that from the DC getting up in opening and saying “he victim is a liar”or that her testimony has changed like a chameleon, etc, etc?

  2. Zachary D Spilman says:

    I mean how different is that from the DC getting up in opening and saying “he victim is a liar”or that her testimony has changed like a chameleon, etc, etc?

    Exactly. Character for untruthfulness is propensity to lie.

  3. stewie says:

    So Zach are you saying you’d overturn this conviction? Because of predator or out on the prowl or both? I think neither rises to a level that requires overturning the conviction.

  4. Zachary D Spilman says:

    Hard to give an opinion on reversal without the entire record stewie. This case caught my attention because of the last of the quoted sections – where Judge Krauss wrote that the “trial counsel never made any reference or argument before the panel members to or about propensity evidence.” I just happen to disagree with that conclusion.

  5. stewie says:

    What else would you look for in the record? There was no instruction issue apparently, so it sounds like the only issue are these two statements by the TC during closing?  I don’t think they amount to discussion about propensity evidence.  Being on the prowl/predator could be statements used for a single offense.  I suppose if he linked the two together it could be characterized that way, but that still wouldn’t be enough to be something I’d reverse the conviction on.

  6. Zachary D Spilman says:

    If all we’re dealing with is commentary by the trial counsel during the opening and the closing, and if there was no objection from the defense, then the test is for plain error and the conviction likely stands.