U.S. v. Hills, 75 M.J. 350

First Principles: Constitutional Matters: Due Process

1. a foundational tenet of the due process clause is that an accused is presumed innocent until proven guilty; an accused has an absolute right to the presumption of innocence until the government has proven every element of every offense beyond a reasonable doubt, and members may only determine that the accused is guilty if the government has met that burden
2. 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
3. in this case, where the error involved using charged misconduct as MRE 413 evidence, the instructions 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; these instructions invited the members to bootstrap their ultimate determination of appellant’s guilt with respect to one offense using the preponderance of the evidence burden of proof with respect to another offense; not only were charged offenses not properly admitted under MRE 413 to prove a propensity to commit the charged offenses, but the muddled accompanying instructions implicated 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; as such, the error resulted in constitutional error

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge operated under an erroneous view of the law when he admitted the charged offenses as MRE 413 evidence to show appellant’s propensity to commit the charged offenses, and thus abused his discretion

Military Justice Personnel: Military Judge: Instructions

1. in this case, where the error involved using charged misconduct as MRE 413 evidence, the instructions 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; these instructions invited the members to bootstrap their ultimate determination of appellant’s guilt with respect to one offense using the preponderance of the evidence burden of proof with respect to another offense; not only were charged offenses not properly admitted under MRE 413 to prove a propensity to commit the charged offenses, but the muddled accompanying instructions implicated 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; as such, the error resulted in constitutional error
2. in this case, the instructions that accompanied the so-called MRE 413 propensity evidence constituted constitutional error that was not harmless beyond a reasonable doubt where appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was seriously muddled and compromised by the instructions as a whole; the juxtaposition of the preponderance of the evidence standard with the proof beyond a reasonable doubt standard with respect to the elements of the same offenses would tax the brain of even a trained lawyer; here, the conflicting standards of proof and directly contradictory statements about the bearing that one charged offense could have on another may have contributed to the verdict where appellant pleaded not guilty, the government’s case was weak as there was no eyewitness testimony other than the allegations of the accuser, the members rejected two other allegations of the accuser against appellant, and there was no conclusive physical evidence; the instructions may have tipped the balance in the members’ ultimate determination and were, therefore, not harmless beyond a reasonable doubt

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. MRE 413(a) provides that 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 offenses of sexual assault is admissible and may be considered for its bearing on any manner to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; MRE 413 is an exception to the ordinary rule that evidence of uncharged misconduct or prior convictions is generally inadmissible and may not be used to show an accused’s propensity or predisposition to commit charged conduct; in other words, despite the ordinary rule prohibiting the use of propensity evidence, members are permitted to consider testimony of past victims alleging that an accused perpetrated a sex offense upon them in order to infer that an accused has the propensity to commit the charged sex offense
2. MRE 413, subject to the MRE 403 balancing test and proper instructions, is constitutional
3. an offense to which an accused has pleaded guilty or been found guilty can be admitted and considered under MRE 413 to show propensity to commit the sexual assaults to which he pleaded not guilty
4. uncharged sexual assaults that occurred subsequent to the charged offenses are not barred from being admitted under MRE 413
5. it is impermissible to utilize MRE 413 to show that charged conduct demonstrates an accused’s propensity to commit the charged conduct
6. MRE 413 is not a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct
7. neither the structure of MRE 413 and its relationship to MRE 404(b) nor the legislative history of the federal rule upon which it is based suggests that MRE 413 and its attendant instructions may be applied to evidence of charged misconduct; first, the structure of the rule suggests that it was aimed at conduct other than charged offenses; the notice provision in MRE 413(b), which requires the government to disclose the proposed MRE 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; second, the effect of MRE 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; charged misconduct is already admissible at trial under MRE 401 and 402, and it is not subject to exclusion under MRE 404(b); thus, as a matter of logic, it does not fall under MRE 413, which serves as an exception to MRE 404(b); further, the legislative history of the federal counterpart, FRE 413, also suggests that MRE 413 was not designed to apply to charged misconduct; the rule was intended to address recidivism, and it permits bolstering the credibility of a victim because knowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of the victim’s claims; while MRE 413 was intended to permit the members to consider the testimony of other victims with respect to an accused’s past sexual offenses, there is no indication that MRE 413 was intended to bolster the credibility of the named victim through inferences drawn from the same allegations of the same named victim
8. in this case, because evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of MRE 413, a rule of admissibility for evidence that would otherwise not be admissible, was error; neither the text of MRE 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case
9. an error in deciding that MRE 413 evidence of uncharged misconduct or prior convictions for sexual assaults meets the balancing test under MRE 403 and is admissible is usually nonconstitutional in nature
10. in general, MRE 413 does not violate an accused’s right to a presumption of innocence
11. proper MRE 413 evidence is not fundamentally unfair; it is admissible on any matter to which it is relevant; and subject to MRE 403, the presumption with respect to MRE 413 evidence is in favor of admissibility
12. (the fact that no presumption of innocence attaches to uncharged conduct is why the use of charged conduct as propensity evidence is analytically distinct from uncharged conduct),
13. the government cannot use MRE 413 if it elects to join multiple sex offenses in a single trial

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. MRE 413(a) provides that 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 offenses of sexual assault is admissible and may be considered for its bearing on any manner to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; MRE 413 is an exception to the ordinary rule that evidence of uncharged misconduct or prior convictions is generally inadmissible and may not be used to show an accused’s propensity or predisposition to commit charged conduct; in other words, despite the ordinary rule prohibiting the use of propensity evidence, members are permitted to consider testimony of past victims alleging that an accused perpetrated a sex offense upon them in order to infer that an accused has the propensity to commit the charged sex offense
2. an offense to which an accused has pleaded guilty or been found guilty can be admitted and considered under MRE 413 to show propensity to commit the sexual assaults to which he pleaded not guilty
3. uncharged sexual assaults that occurred subsequent to the charged offenses are not barred from being admitted under MRE 413
4. no presumption of innocence attaches to uncharged conduct

Trial Stages: Merits: Instructions › Generally

1. in this case, where the error involved using charged misconduct as MRE 413 evidence, the instructions 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; these instructions invited the members to bootstrap their ultimate determination of appellant’s guilt with respect to one offense using the preponderance of the evidence burden of proof with respect to another offense; not only were charged offenses not properly admitted under MRE 413 to prove a propensity to commit the charged offenses, but the muddled accompanying instructions implicated 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; as such, the error resulted in constitutional error
2. in this case, the instructions that accompanied the so-called MRE 413 propensity evidence constituted constitutional error that was not harmless beyond a reasonable doubt where appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was seriously muddled and compromised by the instructions as a whole; the juxtaposition of the preponderance of the evidence standard with the proof beyond a reasonable doubt standard with respect to the elements of the same offenses would tax the brain of even a trained lawyer; here, the conflicting standards of proof and directly contradictory statements about the bearing that one charged offense could have on another may have contributed to the verdict where appellant pleaded not guilty, the government’s case was weak as there was no eyewitness testimony other than the allegations of the accuser, the members rejected two other allegations of the accuser against appellant, and there was no conclusive physical evidence; the instructions may have tipped the balance in the members’ ultimate determination and were, therefore, not harmless beyond a reasonable doubt

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if instructional error is found when there are constitutional dimensions at play, an appellate court tests an appellant’s claims for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to appellant’s conviction or sentence; an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction
2. in this case, the instructions that accompanied the so-called MRE 413 propensity evidence constituted constitutional error that was not harmless beyond a reasonable doubt where appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was seriously muddled and compromised by the instructions as a whole; the juxtaposition of the preponderance of the evidence standard with the proof beyond a reasonable doubt standard with respect to the elements of the same offenses would tax the brain of even a trained lawyer; here, the conflicting standards of proof and directly contradictory statements about the bearing that one charged offense could have on another may have contributed to the verdict where appellant pleaded not guilty, the government’s case was weak as there was no eyewitness testimony other than the allegations of the accuser, the members rejected two other allegations of the accuser against appellant, and there was no conclusive physical evidence; the instructions may have tipped the balance in the members’ ultimate determination and were, therefore, not harmless beyond a reasonable doubt

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion
2. the meaning and scope of MRE 413 is a question of law that an appellate court reviews de novo
3. in this case, an appellate court must first review de novo the meaning and scope of MRE 413 to determine whether the military judge’s admission of charged conduct under MRE 413 was guided by erroneous legal conclusions, before determining whether the military judge abused his discretion in admitting the MRE 413 evidence as propensity evidence
4. instructional errors are reviewed by an appellate court de novo, and that court evaluates a military judge’s instructions in the context of the overall message conveyed to the members
5. if instructional error is found when there are constitutional dimensions at play, an appellate court tests an appellant’s claims for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to appellant’s conviction or sentence; an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction