In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that–
[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 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.
M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior. It’s profile evidence (and it’s wrong, but the law allows it). Hills was a members case! As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–
In United States v. Hukill, __ M.J. ___ (C.A.A.F. 2017), the Court decided a Hills trailer–in a military judge alone case. The issue, simply, was–
In Hills, a members’ trial, we held that under Military Rules of Evidence (M.R.E.) 413, the use of charged misconduct to establish an accused’s propensity to commit other charged misconduct in the same case constituted error. 75 M.J. at 352. We granted review in this case to determine whether the rationale of Hills is applicable to a military judge-alone trial and, if so, whether Hukill was prejudiced by the admission of this propensity evidence. We hold the rationale of Hills is equally applicable to both members and military judge-alone trials[.]
In United States v. Grant, ARMY 20150572 (A. Ct. Crim. App. , the Army Court of Criminal Appeals found error based on Hills and Hukill.
On 19 August 2015, trial counsel filed a notice of intent to offer evidence under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. On 24 August 2015, trial counsel filed a motion in limine for an order admitting evidence under Mil. R. Evid. 413, requesting that the military judge “consider charged sexual offenses in the Charges and Additional Charges as [Mil. R. Evid.] 413 evidence to prove propensity of [appellant] to commit sexual offenses . . . and the [appellant’s] modus operandi and absence of mistake or accident in committing these offenses.”
During appellant’s court-martial, the military judge informed the parties of his Mil. R. Evid. 413 ruling: “I will be considering each charge of sexual misconduct as propensity evidence of each of the other charges of sexual misconduct under Article 120.”
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