Opinion Analysis: A Hills error might be harmless, but that requires more actual proof of guilt than is in United States v. Guardado
CAAF decided the Army case of United States v. Guardado, 77 M.J. 90, No. 17-0183/AR (CAAFlog case page) (link to slip op.), on Tuesday, December 12, 2017. Practically ignoring the five factors utilized by the Army CCA to analyze the prejudice from the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 or 414, the court unanimously reverses the CCA’s opinion that found such improper use to be harmless in this case. The court also finds that two novel 134 specifications fail to state offenses, applying last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).
Chief Judge Stucky writes for a unanimous court.
CAAF granted review of two issues but requested briefing on only the first:
I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.
II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.
In United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the CCA dissected CAAF’s blockbuster opinion 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), and found the improper use of charged sexual offenses as evidence of propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors. But those five factors are not explicitly part of CAAF’s decision. Rather, Chief Judge Stucky explains that:
There are circumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by “tipp[ing] the balance in the members’ ultimate determination.” Hills, 75 M.J. at 358.
This is not such a case.
Slip op. at 7.