In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 –  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.

In the wake of Hills both the Army and Air Force CCAs held that the decision does not apply to a case tried by military judge alone. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, 75 M.J. 491 (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here).

As noted above, CAAF granted review of the Hills issue in Hukill on November 23.

Yesterday CAAF granted review in Phillips:

No. 17-0037/AF. U.S. v. Cory D. Phillips. CCA S38771. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MIL. R. EVID. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO REMAND APPELLANT’S CASE FOR NEW POST-TRIAL PROCESSING AFTER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION (SJAR) FAILED TO CORRECT AN ERROR IN APPELLANT’S CLEMENCY SUBMISSION. See UNITED STATES v. ADDISON, NO. 16-0615/AF (C.A.A.F. 26 July 2016) (rem.).

III. WHETHER APPELLANT’S CONVICTION ON SPECIFICATION 1 OF THE CHARGE IS LEGALLY INSUFFICIENT WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT AND SrA LS ENGAGED IN A SEXUAL ACT.

Briefs will be filed under Rule 25.

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