While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998). But for years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged acts.
However, the #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413. Three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses. United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015); United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here); United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (unpub. op) (discussed here), pet. for rev. filed, __ M.J. __, No. 16-0155/AF (C.A.A.F. Nov. 25, 2015). The Army CCA justified this action in Barnes with the explanation that:
We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.
74 M.J. 697-698. This justification faces significant challenges, as CAAF granted review in two Army cases earlier this year involving charged offenses used as propensity evidence under Mil. R. Evid. 413 and 414: United States v. Hills, No. 15-0767/AR (discussed here), and United States v. Moynihan, No. 16-0277/AR (discussed here).
Recently, though, in United States v. Williams, 75 M.J. 621, 20130582 (A. Ct. Crim. App. Feb. 29, 2016) (link to slip op.), the Army CCA reversed its own precedent regarding the instructions that a military judge must give to a panel considering such propensity evidence.
The precedent is United States v. Dacosta, 63 M.J. 575, 583 (Army Ct. Crim. App. 2006), in which the Army CCA mandated that:
for all cases tried on or after ninety days from the date of this opinion, where a military judge properly admits Mil. R. Evid. 413 evidence, she shall inform panel members of the following: (1) the accused is not charged with this other sexual assault offense; (2) the Rule 413 evidence should have no bearing on their deliberations unless they determine the other offense occurred; (3) if they make that determination, they may consider the evidence for its bearing on any matter to which it is relevant in relation to the sexual assault offenses charged; (4) the Rule 413 evidence has no bearing on any other offense charged; (5) they may not convict the accused solely because they may believe the accused committed other sexual assault offenses or has a propensity or predisposition to commit sexual assault offenses; (6) they may not use Rule 413 evidence as substitute evidence to support findings of guilty or to overcome a failure of proof in the government’s case, if any; (7) each offense must stand on its own and they must keep the evidence of each offense separate; and (8) the burden is on the prosecution to prove the accused’s guilt beyond a reasonable doubt as to each and every element of the offenses charged.
In Williams the CCA reverses this precedent because it “remain[s] problematic in numerous respects.” Slip op. at 12.
Notably, the CCA declines to provide new mandatory instructions, instead declaring that:
To be clear, nothing in this opinion removes the requirement that a military judge must provide appropriate instructions to the panel. R.C.M. 920(a). While “the law does not mandate a formulaic instruction,” an instruction on M.R.E. 413 or M.R.E. 414 evidence must still inform the panel that: 1) an accused may not be convicted based on propensity evidence alone; and 2) that M.R.E. 413 or M.R.E. 414 evidence does not relieve the government of its burden to prove every element of every offense charged. Schroder, 65 M.J. at 56. While the instruction approved by the 10th Circuit in McHorse provides an adequate template, having already once waded too far from shore, we decline to mandate any specific wording or contents beyond what our superior court directed in Schroder.
Slip op. at 12.