CAAF STRIKES DOWN “PROPENSITY” EVIDENCE RULE CONCERNING PRIOR CHARGES
June 28, 2016
In a new landmark decision, the United States Court of Appeals for the Armed Forces (CAAF) has struck down a certain use of an evidence rule to show an accused's alleged propensity for sexual assault. The decision, United States v. Hills, is sure to affect countless cases going forward and even comments on growing, troubling trends within the military justice system concerning the prosecution of alleged sexual assault offenders.
UNITED STATES V. HILLS
As CAAFLOG recounts, Sgt. Hills faced multiple charges abusive sexual contact following an encounter an intoxicated female Soldier. He would go on to be acquitted of two of those charges. However, in the court-martial addressing the third charge, the judge allowed one specific rule, Military Rule of Evidence 413 (M.R.E. 413), to let prosecutors point to Hills' two prior charges as an indication of his character.
In this way, Hills—and many other accused Soldiers in prior courts-martial—have been characterized as having a propensity for sexual assault even though they had been acquitted of previous allegations. In Hills' initial court-martial, the tactic worked, and he was convicted of abusive sexual contact and sentenced to a demotion, six months of confinement, and a discharge.
UNDERSTANDING M.R.E. 413
Why would military law allow such an evidence rule that seemingly betrayed the court's assumption of innocence? In the 1990s, Congress created a pair of evidence laws that, in the case of sexual crimes, would allow similar, prior allegations against the accused to be material in a new charge. This was thought to help prosecutors convict guilty offenders whose crimes often left a lack of physical evidence and/or depend solely on brittle testimony from children or adult victims.
The military adopted a version of this law with M.R.E. 413, "Evidence of Similar Crimes in Sexual Assault Case," in 1998. It was carefully written to override Rule 404(a) and (b) which protects character evidence from being admissible during trials. It 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."
M.R.E. 413 (and its federal and state counterparts) almost always rely on newly put forth testimony from prior, alleged victims to help substantiate the guilt of the accused. So for example, if a defendant is on trial for abusing victim A, prosecutors may look into the defendant's past and convince a newly discovered victim B to come forward with testimony about a similar incident from the past involving the defendant. The prior incident involving victim B never resulted in a criminal charge (and doesn't in the current trial, either), but victim B’s testimony can still be used to establish a history of misconduct—which can be more convincing to a jury. On the state and federal level, these laws have been discussed recently in the case of comedian Bill Cosby who, if faced with criminal charges due to the claims of one alleged sexual assault victim, could be convicted due to the corroborating testimony from numerous others asserting unrelated, but similar incidents.
THE CAAF DECISION & ANALYSIS
Hills appealed his conviction on the grounds that prosecutors hadn't used prior allegations against him to reach a conviction—they had used prior acquittals. Indeed, this is the same conclusion that CAAF made in a decision written decisively in Hills' favor. As Judge Ryan writes for the panel: “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.” “Charged conduct” is key here—the court is saying that prior allegations against the accused cannot be used via M.R.E. 413 if they have already been resolved in the accused's favor.
The slip opinion elaborates: "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."
Other points made in the CAAF ruling include:
- The federal counterpart laws imply that they were not designed to apply to previously charged conduct.
- Other court decisions refer to M.R.E. 413's purpose as "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."
- Other case history implies that M.R.E. 413 was meant to bolster the alleged victim's testimony with claims from other victims. In Hills' case, there were none, just one victim claiming multiple offenses.
- As Judge Ryan writes: "It is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent."
Hills' one conviction of sexual assault has been overturned and a rehearing has been called for. More than that, though, CAAF has again made veiled comments about the types of cases that are being brought to trial. CAAF specifically mentioned that the evidence in this case was weak: "We note that the Government’s case was weak as there was no eyewitness testimony other than the allegations of the accuser, the members rejected the accuser’s other allegations against the Appellant, and there was no conclusive physical evidence. We cannot know whether the instructions may have tipped the balance in the members’ ultimate determination. The instructions were, therefore, not harmless beyond a reasonable doubt.”
They bootstrapped their thought as part of their theory and opinion, but there is another takeaway. In this case, as with many cases, SJA’s are advising Convening Authorities to take cases to trial that have no real evidence other than the accuser's words. CAAF has commented in recent cases about the lack of evidence in cases they are reviewing. Reading in between the lines, the question that CAAF is positing, is why is the Army taking such bad cases to trial? Is that justice? Taking bad cases to trial to justify a political agenda is extremely bad policy and is particularly abhorrent in the military justice system.
Joseph L. Jordan, Attorney at Law is respected and accomplished military defense attorney who has traveled the globe to defend the rights and interests of our armed service members. A 10+ year veteran of the U.S. Army himself, he well-versed in military culture and protocol and knows what it takes to secure favorable outcomes for our clients.
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