U.S. v. Upshaw, 81 M.J. 71

First Principles: Constitutional Matters: Generally

1. where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s decision to admit evidence is reviewed for an abuse of discretion

Core Criminal Law Subjects: Evidence: Generally

1. a military judge’s decision to admit evidence is reviewed for an abuse of discretion

Core Criminal Law Subjects: Evidence: Other Acts

1. MRE 413 addresses the admission of evidence of similar crimes in sexual assault cases and states in relevant part that in a court-martial proceeding for a sexual offense, a military judge may admit evidence that the accused committed any other sexual offense and that evidence may be considered on any matter to which it is relevant; this provision provides an exception to MRE 404(b) and the general concept that prior convictions or uncharged misconduct are not admissible to show an accused’s propensity towards bad acts or bad character; the constitutionality of permitting admission of such propensity evidence was upheld by CAAF in US v. Wright, 53 MJ 476 (CAAF 2000)
2. as determined in US v. Hills, 75 MJ 350 (CAAF 2016), the government cannot use charged sexual misconduct to prove propensity to commit other charged sexual misconduct under MRE 413; 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

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

1. MRE 413 addresses the admission of evidence of similar crimes in sexual assault cases and states in relevant part that in a court-martial proceeding for a sexual offense, a military judge may admit evidence that the accused committed any other sexual offense and that evidence may be considered on any matter to which it is relevant; this provision provides an exception to MRE 404(b) and the general concept that prior convictions or uncharged misconduct are not admissible to show an accused’s propensity towards bad acts or bad character; the constitutionality of permitting admission of such propensity evidence was upheld by CAAF in US v. Wright, 53 MJ 476 (CAAF 2000)
2. as determined in US v. Hills, 75 MJ 350 (CAAF 2016), the government cannot use charged sexual misconduct to prove propensity to commit other charged sexual misconduct under MRE 413; 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

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. MRE 413 addresses the admission of evidence of similar crimes in sexual assault cases and states in relevant part that in a court-martial proceeding for a sexual offense, a military judge may admit evidence that the accused committed any other sexual offense and that evidence may be considered on any matter to which it is relevant; this provision provides an exception to MRE 404(b) and the general concept that prior convictions or uncharged misconduct are not admissible to show an accused’s propensity towards bad acts or bad character; the constitutionality of permitting admission of such propensity evidence was upheld by CAAF in US v. Wright, 53 MJ 476 (CAAF 2000)
2. as determined in US v. Hills, 75 MJ 350 (CAAF 2016), the government cannot use charged sexual misconduct to prove propensity to commit other charged sexual misconduct under MRE 413; 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

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Admission/suppression of evidence

1. a military judge’s decision to admit evidence is reviewed for an abuse of discretion

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Instructions

1. where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction

Trial Stages: Merits: Instructions › Generally

1. instructions that provide members with directly contradictory statements about the bearing that one charged offense could have on another, one of which requires 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) are problematic; and in this case, where the military judge’s instruction explicitly referred to the preponderance of the evidence standard, 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
2. with respect to an erroneous propensity instruction, prejudice occurs where a court cannot be certain that the instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence; if it is just certainly possible that an accused was convicted based on properly admitted evidence alone, a Hills error cannot be determined harmless; however, there may be circumstances where the evidence is overwhelming, so an appellate court can rest assured that an erroneous propensity instruction did not contribute to the verdict by tipping the balance in the members’ ultimate determination
3. in this case where the military judge erred in admitting charged conduct as MRE 413 propensity evidence, the government failed to meet its burden to show that error was harmless beyond a reasonable doubt where (1) the military judge’s instructions were clearly erroneous, including explicit reference to the preponderance of the evidence standard, (2) the government heavily relied upon the propensity evidence and referenced the instruction on the preponderance of the evidence standard, and (3) the evidence against appellant did not reach the level of overwhelming considering that there was no physical evidence to support the victim’s version of events

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

1. a military judge’s decision to admit evidence is reviewed for an abuse of discretion
2. where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
3. with respect to an erroneous propensity instruction, prejudice occurs where a court cannot be certain that the instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence; if it is just certainly possible that an accused was convicted based on properly admitted evidence alone, a Hills error cannot be determined harmless; however, there may be circumstances where the evidence is overwhelming, so an appellate court can rest assured that an erroneous propensity instruction did not contribute to the verdict by tipping the balance in the members’ ultimate determination