U.S. v. Prasad, 80 M.J. 23

First Principles: Constitutional Matters: Generally

1. where constitutional error contributes to a conviction, the conviction cannot stand

First Principles: Constitutional Matters: Due Process

1. in analyzing whether a Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt, both the strength of the government’s case against the accused and the content of the military judge’s findings instructions are evaluated; with respect to the strength of the government’s case against the accused, where there has been overwhelming evidence of an appellant’s guilt, an appellate court may be convinced beyond a reasonable doubt that the accused was convicted on the strength of the evidence alone and that an erroneous propensity instruction did not contribute to the verdict; however, where the government’s case is weak, an appellate court cannot know whether the instructions may have tipped the balance in the members’ ultimate determination and thus will find that any error was not harmless beyond a reasonable doubt; likewise, where it is merely certainly possible that the accused was convicted solely based on properly admitted evidence, an appellate court will not conclude that a Hills error was harmless; furthermore, with respect to the content of the military judge’s findings instructions, where an instruction clearly tells the members that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity, an appellate court may hold that there is no risk the members would apply an impermissibly low standard of proof; but, where a military judge gives a propensity instruction that explicitly refers to the preponderance of the evidence standard, an appellate court cannot deny that the military judge’s muddled instructions potentially implicated fundamental conceptions of justice under the Due Process Clause and heightened the risk that the members would apply an impermissibly low standard of proof

Core Criminal Law Subjects: Evidence: Other Acts

1. it impermissible to use MRE 413 propensity evidence as 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

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

1. it impermissible to use MRE 413 propensity evidence as 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when issues of constitutional dimension are at play, as they are when charged sexual misconduct is improperly used as MRE 413 propensity evidence, the erroneous admission of that evidence and the corresponding instructions to the panel members must be tested for prejudice under the harmless beyond a reasonable doubt standard
2. an appellate court reviews de novo the issue of whether a constitutional error was harmless beyond a reasonable doubt; and it is the government that bears the burden of proving that a constitutional error is harmless beyond a reasonable doubt
3. 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 the accused’s conviction or sentence; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction; on the other hand, where a court cannot be certain that the erroneous propensity instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence, there is prejudice
4. in analyzing whether a Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt, both the strength of the government’s case against the accused and the content of the military judge’s findings instructions are evaluated; with respect to the strength of the government’s case against the accused, where there has been overwhelming evidence of an appellant’s guilt, an appellate court may be convinced beyond a reasonable doubt that the accused was convicted on the strength of the evidence alone and that an erroneous propensity instruction did not contribute to the verdict; however, where the government’s case is weak, an appellate court cannot know whether the instructions may have tipped the balance in the members’ ultimate determination and thus will find that any error was not harmless beyond a reasonable doubt; likewise, where it is merely certainly possible that the accused was convicted solely based on properly admitted evidence, an appellate court will not conclude that a Hills error was harmless; furthermore, with respect to the content of the military judge’s findings instructions, where an instruction clearly tells the members that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity, an appellate court may hold that there is no risk the members would apply an impermissibly low standard of proof; but, where a military judge gives a propensity instruction that explicitly refers to the preponderance of the evidence standard, an appellate court cannot deny that the military judge’s muddled instructions potentially implicated fundamental conceptions of justice under the Due Process Clause and heightened the risk that the members would apply an impermissibly low standard of proof
5. in this case, the government’s evidence that appellant touched his penis to the alleged victim’s groin over their clothing without her consent was not overwhelming, and thus the military judge’s error in permitting evidence of charged sexual offenses to be used as propensity evidence and by instructing the members accordingly was not harmless beyond a reasonable doubt, where the evidence at trial supported a mistake of fact as to consent defense, where appellant’s messages with the alleged victim corroborated his mistake of fact as to consent defense, where the government presented no corroborating forensic or physical evidence and no independent witness who could corroborate the alleged victim’s account of the incident, and the trial defense counsel effectively cross-examined the alleged victim and established a motive to fabricate
6. in this case, the government’s evidence that appellant digitally penetrated the alleged victim’s vulva without her consent was not overwhelming, and thus the military judge’s error in permitting evidence of charged sexual offenses to be used as propensity evidence and by instructing the members accordingly was not harmless beyond a reasonable doubt, where the evidence of appellant’s messages with the alleged victim acknowledging the digital penetration and apologizing to the alleged victim did not unassailably establish his consciousness of guilt and corroborated his mistake of fact as to consent defense, where the alleged victim conceded at trial that appellant had stopped sexual contact as soon as he realized that she did not want to participate, and where the alleged victim had a motive to fabricate
7. in this case, in light of the relative weakness of the government’s case at trial, the military judge’s confusing findings instructions that erroneously conflated the reasonable doubt standard and the propensity of the evidence standard and created a significant risk that the members applied an impermissibly low standard of proof, and the trial counsel’s erroneous and pervasive findings argument regarding the preponderance of the evidence standard and propensity evidence, the government failed to meet its burden of proving that the Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt

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

1. appellate courts apply the clear law at the time of appeal, not the time of trial
2. when issues of constitutional dimension are at play, as they are when charged sexual misconduct is improperly used as MRE 413 propensity evidence, the erroneous admission of that evidence and the corresponding instructions to the panel members must be tested for prejudice under the harmless beyond a reasonable doubt standard
3. an appellate court reviews de novo the issue of whether a constitutional error was harmless beyond a reasonable doubt; and it is the government that bears the burden of proving that a constitutional error is harmless beyond a reasonable doubt
4. 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 the accused’s conviction or sentence; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction; on the other hand, where a court cannot be certain that the erroneous propensity instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence, there is prejudice
5. in analyzing whether a Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt, both the strength of the government’s case against the accused and the content of the military judge’s findings instructions are evaluated; with respect to the strength of the government’s case against the accused, where there has been overwhelming evidence of an appellant’s guilt, an appellate court may be convinced beyond a reasonable doubt that the accused was convicted on the strength of the evidence alone and that an erroneous propensity instruction did not contribute to the verdict; however, where the government’s case is weak, an appellate court cannot know whether the instructions may have tipped the balance in the members’ ultimate determination and thus will find that any error was not harmless beyond a reasonable doubt; likewise, where it is merely certainly possible that the accused was convicted solely based on properly admitted evidence, an appellate court will not conclude that a Hills error was harmless; furthermore, with respect to the content of the military judge’s findings instructions, where an instruction clearly tells the members that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity, an appellate court may hold that there is no risk the members would apply an impermissibly low standard of proof; but, where a military judge gives a propensity instruction that explicitly refers to the preponderance of the evidence standard, an appellate court cannot deny that the military judge’s muddled instructions potentially implicated fundamental conceptions of justice under the Due Process Clause and heightened the risk that the members would apply an impermissibly low standard of proof