Can one sexual offense charge be used to prove another sexual offense charge?

In 2016, the Court of Appeals for the Armed Forces (CAAF) made a huge decision in United States v. Hills.  In this case, CAAF held that if a servicemember is charged with more than one sexual offense in a court-martial, one charge cannot be used as “propensity evidence” to show that one of the other charges occurred.  More specifically, the Court held that Military Rule of Evidence (M.R.E.)  413 cannot be used 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.”  In Hills, the military judge granted the government’s motion to admit all of appellant’s charged conduct as evidence of appellant’s propensity to commit the sexual assaults with which he was charged.  Then, prior to the panel deliberating on findings in Hills, the military instructed the panel that if they “determine by a preponderance of evidence that it is more likely than not that the sexual offenses occurred: evidence that the accused committed a sexual assault offense . . . may have a bearing on your deliberations in relation to the other charged sexual assault offenses.”  Finally, the military judge instructed that this may include “its tendency, if any, to show the accused’s propensity or predisposition to engage in sexual assault.”  Upon review, CAAF held the military judge erred and that this error was constitutional error because it “violated appellant’s presumption of innocence and right to have all findings made clearly beyond a reasonable doubt.”  The Court further explained that the instructions in the case “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.”  The Court noted this “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.”  Ultimately, in Hills, CAAF held the military judge’s error in giving this instruction was not harmless beyond a reasonable doubt.  Currently, CAAF is reviewing the Army Court of Criminal Appeals (ACCA) decision in United States v. Hukill.  This case is very similar to Hills except for the fact that the appellant in Hukill was tried by military judge alone and not a panel.  In Hukill, ACCA determined that CAAF’s Hills decision simply did not apply to a military judge alone trial because there was no concern about a military judge confusing the burdens of proof.  However, CAAF is reviewing that decision and recently heard oral argument on it.  It is very possible that CAAF will not see it the same way as ACCA did and will overturn the appellant’s conviction in Hukill for the same reason as in Hills.  We will all be waiting for this decision as it could affect many appeals.  If you or your loved was tried for multiple sexual offenses, these decisions affect you.  You or your loved one may have a valid appeal.  Don’t trust your appeal to just anyone.  Look for experience.   I have that experience.  Please call me for help.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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