Ei Incumbit Probation Qui Dicit.

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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New Propensity Decision Already Producing New Case Reviews

Earlier this year, the United States Army Court of Criminal Appeals (CAAF) made an unexpected decision rejecting the use of Military Evidence Rule 413. That decision, which ruled against the use of "propensity" evidence in sexual assault cases, has already resulted in multiple remanded cases that will now receive further review—likely to the benefit of the accused.

United States v. Arturo A. Tafoya, United States v. William P. Moynihan, and United States v. Gene N. Williams have all been handed back down to a lower court for further examination now that M.R.E. 413 has been struck down. A fourth case, United States v. Fetrow, is also on the CAAF docket and expected to face a similar fate. In each of these four cases, the accused was convicted, in part, due to M.R.E. 413.

M.R.E. 413. & "Propensity"

In 1998, the military enacted M.R.E. 413 "Evidence of Similar Crimes in Sexual Assault Case" in order to give law enforcement and prosecutors greater leverage in securing sexual assault convictions. This rule mirrored new federal laws at the time which recognized how difficult convicting sexual offenders could be when, in many cases, the body of evidence consists of the defendant's word against the accuser's.

M.R.E. 413 states: "In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused's commission of one or more offense of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." This means that prior accusations of sexual assault against the defendant can be admissible in a court-martial to prove a propensity for sexual violence.

The rule has always been controversial and allowed mere accusations of sexual misconduct to act as evidence against the accused. So for instance, prosecutors could present testimony from a second, previous accuser against the defendant—even when that second accuser's testimony never resulted in a conviction or a criminal charge. This allowance was in such direct conflict with Rule 404(a) and (b) (which blocks the use of character evidence) that M.R.E. 413 had to be specifically worded just to override it in cases involving alleged sexual assault.

At this blog, we covered the landmark United States v. Hills decision that struck the evidence rule down, which can be found here. The Hills decision has already been called "blockbuster" by some outlets and is likely to not only affect many cases going forward but shed a new light on more cases currently in the appeals process.

Are you military servicemember that has been accused of a serious criminal act? If so, you have a choice in your defense counsel. Joseph L. Jordan, Attorney at Law is a U.S. Army veteran with more than a decade of experience. He now travels the globe to advocate for accused U.S. armed forces members and ensure that they receive every consideration they deserve before the law.

Want to learn more about what our firm can do for you during this uncertain time? Contact us today to request a free case evaluation.

Categories: Military Law News

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