Our #3 Military Justice Story of 2016 is CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

In Hills a unanimous CAAF concluded 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 undermines the presumption of innocence. The rule – and the similar Mil. R. Evid. 514 – are exceptions to the general prohibition on using a person’s bad character as evidence that they are guilty of a criminal offense. Congress created the 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), and they were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30065, 30078 (June 2, 1998).

The rules were initially 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 the Army, Air Force, and Navy-Marine Corps CCA each issued opinions in 2015 that approved of the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses.

But in Hills, CAAF put an end to the practice.

Hills was not one of the initial decisions by a CCA that approved use of charged offenses for propensity purposes – a point emphasized by Army Appellate Government counsel during oral argument of the case but rejected by the court as meaningless. The denial of discretionary review is notable but does not create legal precedent. But it’s easy to see why Government counsel made the argument; the Army CCA’s decision the year before in 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), was a clear endorsement of the use of charged offenses for propensity purposes as the prosecution’s closing argument at trial included that assertion that:

[L]ighting does strike twice and the accused is proof positive of it. . . . The accused struck again in 2009. It even started out in the same place, Fort Huachuca, Arizona, the accused is TDY. He had gotten away with it the first time. No charges have been pressed yet. So he thought, ” hey this is a pretty good gig. I can go have sex whenever I want. Take it from an unsuspecting woman. They didn’t catch me three years ago.”

Barnes, 74 M.J. at 696. Military prosecutors justifiably saw the Army CCA’s endorsement of this argument, and CAAF’s denial of review, as clear approval of the use of charged offenses for propensity purposes. CAAF’s subsequent decision in Hills was a shock.

Writing for the unanimous court in Hills, Judge Ryan explained that using charged offenses for propensity purposes simply violates Mil. R. Evid 413. She opened with the suggestion that such use was obviously impermissible:

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.

Hills, slip op. at 5 (marks in original). She then outlined four reasons why “neither the structure of M.R.E. 413 and its relationship to M.R.E. 404(b) nor the legislative history of the federal rule upon which it is based suggests that M.R.E. 413 and its attendant instructions may be applied to evidence of charged misconduct.” Slip op. at 7. These were first that:

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 that:

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. Third that:

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). And finally that:

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). The last of these reasons was perhaps unique to the facts of Hills (where there were two alleged assaults of a single victim separated by only a few hours, and each allegation was used as propensity evidence to support a conviction for the other) but the other reasons have broad application.

But CAAF went further than merely finding that the use of charged offenses for propensity purposes violates Mil. R. Evid. 413. The court also found that this prosecution tactic is “antithetical to the presumption of innocence.” Slip op. at 10. The court even rejected the standard instruction given to members on how to handle such evidence, finding that the instructions given at trial:

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. Judge Ryan concluded her opinion with an unambiguous statement of disapproval of the use of charged offenses for propensity purposes:

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.

Slip op. at 12 (marks and citation omitted).

This is – presumably – the end of the use of charged offenses for propensity purposes at trial.

However, the CCAs have applied Hills in a somewhat inconsistent manner to cases tried before Hills was decided. For instance, the Army CCA found that Hills does not apply in judge alone trials; a conclusion that CAAF will review. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). The Air Force CCA reached a similar conclusion regarding judge-alone trials in United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here). The Army CCA also affirmed convictions by members despite the prosecution’s use of the charged offenses for propensity purposes, finding the error harmless under the facts of the case. United States v. Bonilla, No. 20131084 (A. Ct. Crim. App. Sep 30, 2016) (discussed here). The Navy-Marine Corps CCA, however, applied Hills to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months (but shared numerous similarities). United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here). And, most recently, the Army CCA dissected Judge Ryan’s decision, concluding that it should be applied broadly but nevertheless denying relief under the plain error standard (because there was no objection to the use of propensity at trial) in United States v. Guardado, __ M.J. __, No. 20140014 (A. Ct. Crim. App. Nov. 15, 2016) (discussed here).

And so the repercussions of CAAF’s decision in Hills will continue to be felt in 2017, making it our #3 Military Justice Story of 2016

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