Our number six story for 2015 is the agreement of three service courts of appeal that the Government can offer charged sex offenses as propensity evidence for other charged sex offenses in the same prosecution. In the cases of United States v. Barnes (covered here), United States v. Bass (covered here), and United States v. Maliwat (covered here), the ACCA, NMCCA and AFCCA all agreed that, provided the military judge performs the appropriate admissibility tests and provides correct instructions, the Government may use an earlier charged sex offense as propensity evidence to prove a later charged sex offense under MRE 413 .

In all three cases, the courts relied heavily on CAAF’s previous decisions in United States v. Burton, 67 M.J. 150 (C.A.A.F. 2009),  United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007), and United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000).  All of these cases, to an extent, involved attempts by the Government to use charged sex offenses as propensity evidence for other charged sex offenses in the same prosecution. Wright presented a slightly different set of facts than the ones in Barnes, Bass, and Maliwat. In Wright, the appellant pleaded guilty to a housebreaking and indecent assault on one victim prior to the start of trial, but went to a contested trial on allegations of rape by another victim. After the appellant pleaded guilty to the offenses against the first victim, the Government sought to use his conviction on those offenses as propensity evidence for the remaining rape charge. Thus, in a sense, the prior sexual offense was “uncharged” for the contested findings portion of the trial. The appellant challenged the constitutionality of MRE 413 on its face and as applied. The CAAF however found that the rule was facially constitutional and that the judge had applied it in a way that did not violate due process. Specifically, the judge performed the requisite tests under MRE 401, 402 and 403 and instructed the members on the proper use of the evidence.

In Schroeder, the Government sought to use the charged rape of a minor, as well as numerous uncharged acts with minors, under MRE 414 (substantively similar to MRE 413) as propensity evidence to prove the appellant committed charged indecent acts with another victim. The CAAF found that the military judge conducted the proper analysis under MRE 414, but that his instructions to the members on the use of the propensity evidence was not adequate. Finally, in Burton the Government never sought to introduce evidence of a charged sex offense as propensity evidence of another charged sex offense, but still argued that in closing. The CAAF rejected the Government’s post hoc justification that the evidence would have been admissible under MRE 413, because the Government never offered it as such and it was never subjected to the procedural safeguards of MRE 413. Therefore, in the words of CAAF “this [was] not an MRE 413 case.” Burton, 67 M.J. at 153.

In Barnes, Bass, and Maliwat, the Government had all of its ducks in a row and properly litigated MRE 413 pre-trial (for the most part). Further, the judge gave proper instructions to the members on the use of propensity evidence. Synthesizing the perceived lessons of Wright, Schroder, and Burton, the three service courts of appeal found that the use of charged sex offenses as propensity evidence for other charged sex offenses was proper under MRE 413.

These rulings provide a powerful tool for the Government in case where there are multiple accusers. They also open the door for some pretty mind-numbing instructions for members, which may prove difficult to accurately follow. Assuming these rulings stand, the battleground then shifts for the defense entirely to the MRE 401, 402, and 403 tests for admissibility. If CAAF takes a different approach to that of the service courts however, there’s a good chance you’ll be reading about it in next year’s top ten list.

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