Note: This is a corrected post. The earlier version discussed a different Williams decision by the Army CCA. Thanks to reader C for pointing out my error.

Last week CAAF granted review in the following case:

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GIVING A MILITARY RULE OF EVIDENCE 413 INSTRUCTION TO THE PANEL BECAUSE NO EVIDENCE HAD BEEN ADMITTED BY THE MILITARY JUDGE FOR 413 PURPOSES.

No briefs will be filed under Rule 25.

Mil. R. Evid. 413 is the propensity in sex cases rule addressed in yesterday’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

The Army CCA’s published opinion is available here and I analyzed it in this post. The case involves allegations that the appellant sexually assaulted his ex-wifes, and the prosecution gave notice “of its intent to offer evidence of the offenses against each woman as propensity evidence that appellant committed the charged offenses against the other. That is, the government intended to use evidence that appellant committed each sexual offense against one victim as evidence that appellant committed every other sexual offense against the other victim.” United States v. Williams, 75 M.J. 621, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Feb. 29, 2016). The defense objected and the military judge deferred ruling on the issue.

Later, after both sides rested, the military judge (a different judge from the one who deferred ruling) elected to give the members a propensity instruction.

The Army CCA held that “appellant forfeited any instructional error with regards to M.R.E. 413 by repeatedly failing to object to the military judge’s instructions.” Slip op. at 6. It then found no error in giving the propensity instruction in Williams, but reversed its own precedent regarding the instructions that must be given in such a case because such instructions were unworkable in a case where the charged offenses are also the propensity evidence.

CAAF’s decision in Hills, however, holds that a military judge abuses his discretion when he allows the prosecution to use charged offenses 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 undermines the presumption of innocence.

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