Opinion Analysis: The prosecution may not use the charged offenses to show propensity to commit the charged offenses in United States v. Hills, 15-0767/AR
In a hugely-significant decision, CAAF holds that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence is constitutionally erroneous because it undermines the presumption of innocence. CAAF concludes that the error in this case was not harmless beyond a reasonable doubt because of the overall weakness of the Government’s case, and it reverses the decision of the Army CCA and the appellant’s conviction of abusive sexual contact, authorizing a rehearing.
Judge Ryan writes for a unanimous court.
Sergeant Hills was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas of not guilty, of one specification of abusive sexual contact in violation of Article 120. The conviction arose from an alleged sexual encounter with a heavily intoxicated female soldier. Hills was acquitted to two additional specifications of abusive sexual contact arising out of the same encounter with the same alleged victim. The members sentenced him to confinement for six months, reduction to E-1, and a bad-conduct discharge.
At trial, and over the objection of the defense, the military judge allowed the prosecution to use the three charged violations of Article 120 as evidence to prove Hills’ propensity to commit those same offenses. 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).
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 offenses. But our #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413, as 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, just as was done in Hills.
The Army CCA considered this use of the charged offenses and affirmed the conviction. CAAF then granted review of one issue:
Whether the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.
In today’s decision a unanimous CAAF holds not only that the military judge did abuse his discretion but also that the instructions he gave to the members undermined Hills’ presumption of innocence, creating constitutional error (that must be found to be harmless beyond a reasonable doubt to sustain the conviction).
Judge Ryan’s opinion begins with some harsh words for the Government’s assertion that Mil. R. Evid. 413 permits using the charged offenses to show propensity:
Though a question of first impression, it seems obvious that it is impermissible to utilize M.R.E. 413 to show that charged conduct demonstrates an accused’s propensity to commit … the charged conduct.
Slip op. at 5 (ellipses in original) (emphasis added). Noting that neither CAAF “nor any federal circuit court has permitted the use of M.R.E. 413 or Fed. R. Evid. 413 as a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct,” slip op. at 6, Judge Ryan proceeds to highlight multiple reasons why such use of the charged offenses is improper.
the structure of the rule suggests that it was aimed at conduct other than charged offenses. The notice provision in M.R.E. 413(b), which requires the government to disclose the proposed M.R.E. 413 evidence to the accused five days before trial, logically implies that only evidence of uncharged offenses (of which the accused would not otherwise be aware absent disclosure) are contemplated by the rule.
Slip op. at 7. Next,
the effect of M.R.E. 413 was “‘to put evidence of uncharged offenses in sexual assault … cases on the same footing as other types of evidence that are not subject to a special exclusionary rule.’” Wright, 53 M.J. at 480 (alteration in the original) (quoting 140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). Charged misconduct is already admissible at trial under M.R.E. 401 and 402, and it is not subject to exclusion under M.R.E. 404(b). Thus, as a matter of logic, it does not fall under M.R.E. 413, which serves as an exception to M.R.E. 404(b).
Slip op. at 7-8. Additionally,
the legislative history of the federal counterpart, Fed. R. Evid. 413, also suggests that M.R.E. 413 was not designed to apply to charged misconduct.
Slip op. at 8 (citation omitted). Finally,
The rule was intended to address recidivism, cf. Wright, 53 M.J. at 481, and it permits bolstering the credibility of a victim because “[k]nowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of [the victim’s] claims,” Karp, supra, at 21. While M.R.E. 413 was intended to permit the members to consider the testimony of other victims with respect to an accused’s past sexual offenses, see Karp, supra, at 21, there is no indication that M.R.E. 413 was intended to bolster the credibility of the named victim through inferences drawn from the same allegations of the same named victim.
Slip op. at 8 (alternations in original). This last reason, however, is perhaps unique to the facts of this case where there was only one alleged victim. A different case, involving multiple alleged victims, could avoid this concern by enabling each to bolster only the other (though that would likely require a tailored instruction).
Considering these factors, Judge Ryan explains that the military judge abused his discretion when he allowed the prosecution to use the charged offenses as evidence of Hills’ propensity to commit the charged offenses because the military judge “operated under an erroneous view of the law.” Slip op. at 8-9.
Yet CAAF isn’t finished yet, as Judge Ryan continues with a finding that:
It is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.
Slip op. at 10 (emphasis added). A footnote distinguishes charged from uncharged misconduct on the basis that “no presumption of innocence attaches to uncharged conduct.” Slip op. at 10 n. 3.
Judge Ryan then analyzes the instructions given to the members in this case and concludes that they:
provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to discard the accused’s presumption of innocence, and with two different burdens of proof — preponderance of the evidence and beyond a reasonable doubt. Evaluating the instructions in toto, we cannot say that Appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was not seriously muddled and compromised by the instructions as a whole.
Slip op. at 11. And while Judge Ryan doesn’t identify the source of the instructions given to the members, the Army CCA’s opinion did:
At trial, the military judge gave the standard “Spillover” instruction in Note 1, paragraph 7-17 of the Military Judges’ Benchbook, followed by a tailored instruction on the use of charged Mil. R. Evid. 413 evidence to prove propensity as provided in Note 4 of paragraph 7-13-1 (Other crimes, wrongs, or acts evidence). See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter Benchbook] (1 Jan. 2010).
United States v. Hills, No. 20130833, slip op. at 7 (A. Ct. Crim. App. Jun. 25, 2015) (link to slip op.) (marks in original). A later footnote in that decision also noted that “the military judge’s instructions followed the language of Benchbook Instruction 7-13-1, Note 4.” Id., slip op. at 14 n.8.
CAAF has seemingly repudiated that instruction in its entirety,finding that giving it is constitutional error. As Judge Ryan writes:
Quite simply, we hold not only that charged offenses are not properly admitted under M.R.E. 413 to prove a propensity to commit the charged offenses, but also that the muddled accompanying instructions implicate “fundamental conceptions of justice” under the Due Process Clause by creating the risk that the members would apply an impermissibly low standard of proof, undermining both “the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt,” Wright, 53 M.J. at 481 (internal quotation marks omitted) (citation omitted).
Slip op. at 12.
Finally, considering whether the instruction might have been harmless under the particular facts of this case, Judge Ryan’s analysis that could well describe the facts of many present-day military sexual assault prosecutions:
We note that the Government’s case was weak as there was no eyewitness testimony other than the allegations of the accuser, the members rejected the accuser’s other allegations against the Appellant, and there was no conclusive physical evidence. We cannot know whether the instructions may have tipped the balance in the members’ ultimate determination. The instructions were, therefore, not harmless beyond a reasonable doubt.
Slip op. at 13.
By any measure this opinion is a blockbuster. Because abuse of discretion is the most deferential standard of review, CAAF’s conclusion that the military judge abused his discretion is the strongest of precedents. It is even stronger for its unanimity.
Edited to add: And while this case addresses propensity evidence in adult sex cases, CAAF is also considering the same issue under Mil. R. Evid. 414 (which applies in child sex cases) in United States v. Moynihan, No. 16-0277/AR (discussed here).
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