U.S. v. Williams, 77 M.J. 459

First Principles: Constitutional Matters: Generally

1. where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error
2. the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error

Military Justice Personnel: Military Judge: Instructions

1. the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error

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

1. the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error

Trial Stages: Merits: Instructions › Generally

1. the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error
2. in this case, the use of charged offenses as propensity evidence under MRE 413 and an accompanying propensity instruction prejudiced an accused’s constitutional right to be presumed innocent until proven guilty and was constitutional error; furthermore, with one exception, the error was not harmless beyond a reasonable doubt and prejudiced appellant’s substantial rights where appellant’s convictions were not immune from the erroneous propensity instruction that explicitly referred to the preponderance of the evidence standard and that did not just flow in one direction; the one exception is where the evidence, supported by the corroborating evidence, was so overwhelming that the erroneous propensity instruction did not contribute to the verdict by tipping the balance in the members’ ultimate determination

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error
2. an accused cannot always rely on a motion in limine to preserve an issue for appellate review absent further objection; in this case, where appellant’s motion in limine was not yet ripe and he did not renew his objection when afforded the opportunity to do so, an appellate court reviews for plain error; and to establish plain error, an appellant must demonstrate (1) error, (2) that is clear or obvious at the time of appeal, and (3) prejudicial

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

1. where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error