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Propensity Evidence on Appeal.

As a law firm with significant experience and emphasis on court-martial appeals, we have been following the cases of “propensity” evidence very closely, and have had several convictions overturned on appeal due the improper use of propensity evidence.  The law has always been clear that one cannot be convicted on “uncharged misconduct” if that evidence is being used to show that one has a general criminal propensity.  In 2014, Congress enacted Military Rule of Evidence 413, to specifically allow that in a court-martial where one is charged with sexual assault, evidence that the accused had committed another sexual assault could be admitted for “any relevant purpose.”  Military judges began to interpret this to mean that such evidence could be admitted to show that one had a “propensity” to commit other sexual assaults. This was an exception to the general rule on character evidence.As a law firm with significant experience and emphasis on court-martial appeals, we have been following the cases of “propensity” evidence very closely, and have had several convictions overturned on appeal due the improper use of propensity evidence.  The law has always been clear that one cannot be convicted on “uncharged misconduct” if that evidence is being used to show that one has a general criminal propensity.  In 2014, Congress enacted Military Rule of Evidence 413, to specifically allow that in a court-martial where one is charged with sexual assault, evidence that the accused had committed another sexual assault could be admitted for “any relevant purpose.”  Military judges began to interpret this to mean that such evidence could be admitted to show that one had a “propensity” to commit other sexual assaults. This was an exception to the general rule on character evidence.

But military judges were taking it a step further.  In a case where an accused was charged with different sexual assaults, military panels (juries) were instructed that they could consider the evidence of one sexual assault as evidence that the accused committed another charged sexual assault, as long as the panel was convinced by a preponderance of the evidence that the accused had committed the first assault.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) the Court of Appeals for the Armed Forces held that use of such propensity evidence was improper, as it denied the accused the presumption of innocence.  The Army Court of Criminal Appeals then held that Hills did not apply in cases where the accused was tried by a military judge alone.  In United States v. Hukill, 76 M.J. 219 (C.A.A.F 2017) the C.A.A.F again overruled the A.C.C.A. and said the Hills applied to judge alone cases as well.  The A.C.C.A. continued to uphold convictions under similar circumstances, holding that the instructional error was “harmless beyond a reasonable doubt.”  Last week, in United States v. Guardado, the C.A.A.F. again overruled the A.C.C.A. and essentially held that absent overwhelming evidence of guilt, such convictions could not stand.  So three times in a row the C.A.A.F. has overruled the A.C.C.A.  on the use of propensity evidence pursuant to M.R.E. 413.  Hopefully, the A.C.C.A. will now correctly apply the law.

This is a very technical area of law. If you or your loved one has been convicted at court-martial you need an experienced court-martial appeals attorney.  Contact us for a free consultation.

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One comment

  • Mark R. Jones

    Is there any action underway to correct the “Rule of propensity evidence” in order to clearly define that it is not an instructional error or “harmless beyond a reasonable doubt?

    Also about the victims who are/were incarcerated due to this “harmless error” are any actions being taken to ensure that personal records are cleared and they are compensated for this injustice? This is an incredible fleecing of American Citizens Serving Our Country.

    Any information you may have would be greatly appreciated.

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