Military Conviction Reversed After Judge Allows Evidence of Two Counts to Show Propensity to Commit Third Count

United States v. Hills (2016)

by David S. Marshall

The U.S. Military Justice Court has reversed a conviction for abusive sexual contact because the trial court admitted evidence of the defendant’s tendency, or “propensity,” to commit the crime. The court explained that the exception to military law’s prohibition of propensity evidence is for past criminal charges, not for ones currently being tried.

Hills had a house party where the complaining witness became quite drunk and passed out. She woke up several times, she said, to find Hills sexually touching and penetrating her.

The Government charged Hills with one count of abusive sexual contact and two counts of sexual assault. The prosecution asked the trial judge to authorize the panel (a form of jury used in military court) to consider evidence supporting the two counts of sexual assault as proof of Hills’s propensity to commit the third count on trial, abusive sexual contact. The trial judge granted that motion.

The panel found Hills guilty only of the abusive sexual contact charge. He appealed, arguing that the panel should not have been allowed to use evidence supporting the counts on which he was acquitted as proof of his propensity to commit the third count.

Under the military rules, evidence of misconduct and prior convictions is generally inadmissible and cannot be used to show a defendant’s propensity to commit a crime. But the rule is different for sex crimes: when a person is accused of a sex crime, the military court may consider evidence of other sexual assaults as proving a propensity.

Washington State does not have a similar exception. The Washington Legislature enacted one, but that law was ruled unconstitutional by the Washington Supreme Court in Washington v. Gresham, 173 Wn.2d 405 (2012). Under Washington Rule of Evidence 404, a defendant’s prior bad acts are inadmissible for propensity purposes.

A survey of state laws on sexual propensity evidence appears here.

In Hills’s case, the trial judge allowed the panel to consider evidence of his current charges of sexual assault so long as the panel first concluded that those acts more likely than not occurred. But the reviewing court held that the trial judge was wrong to allow that.

The U.S. Constitution requires that a defendant be presumed innocent. The court wrote, “It is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.”

The court reversed the convictions and ordered a new trial.