Service Appellate Courts’ application of CAAF’s ruling regarding the propensity instruction appear inconsistent.

In United States v. Hills in 2016, the Court of Appeals for the Armed Forces (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.  The CAAF held the military judge erred in allowing the propensity evidence in Hills 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.” Ultimately, in Hills, the CAAF held the military judge’s error in giving this instruction was not harmless beyond a reasonable doubt. Ever since that decision the service appellate courts have been applying Hills in ways that make it difficult to predict what exactly the outcome will be.

First, the Army Court of Criminal Appeals (ACCA) in United States v. Bonilla, in September 2016, upheld appellant’s conviction despite holding that the improper propensity instruction was given in that case. In Bonilla, a case with remarkably similar facts to Hills, the ACCA upheld the conviction stating that the case was distinguishable from Hills. The ACCA distinguished Bonilla from Hills with broad conclusions, including, “the panel did not appear to be confused by the military judge’s instructions or as to the burden of proof.” This distinction is remarkable because it would be very difficult for an appellate court to determine whether or not a panel was “confused” simply by reading the record of trial.

Then, more recently on 17 August 2017, the Navy-Marine Court of Criminal Appeals (NMCCA) reversed the conviction of Navy Specialist Prince Wiredu in United States v. Wiredu. This court reversed the conviction based on the use of the propensity instruction and Hills. I recently blogged about this opinion. See, In this case, the NMCCA stated that the propensity evidence and instruction were error. However, the court then went on to state that “[a]fter weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses, we are convinced of the appellant’s guilt beyond reasonable doubt.” Despite declaring that they believed appellant was guilty, the NMCCA still reversed appellant’s conviction. They reversed it because they could not find that the error was harmless beyond a reasonable doubt. In other words, there was no way to know for sure if the panel was influenced improperly by the erred propensity instruction.

Finally, even more recently on 30 October 2017, the Air Force Court of Criminal Appeals (AFCCA) upheld a conviction in United States v. Robertson. The court held that in accordance with Hills, the improper propensity instruction was given to panel members in error. However, the AFCCA determined that the erred instruction was harmless beyond a reasonable doubt. Like in Bonilla, the facts in Robertson were remarkably similar to those in Hills, yet the AFCCA found a way to determine that the error was harmless.

In each of these cases, there were multiple allegations of sexual assault. Further, in each of these cases, the improper propensity argument was given as it was in Hills. Yet, each of these appellate courts seemed to apply their superior court’s decision in Hills in a different and unpredictable manner.

If you or your loved one is facing a court-martial or want to appeal a court-martial you need someone with experience who knows what to argue on your behalf. I have argued this very issue and numerous other issues in front of appellate courts and the CAAF. I have the experience you are looking for. 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.


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William E. Cassara- Military Law Attorney

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