A few weeks ago, CAAF decided United States v. Prasad, a case about propensity evidence.
Appellant was convicted of multiple sex crimes before United States v. Hills was decided. The military judge allowed the charged acts to be used for propensity purposes in violation of Hills. The ACCA applied Hills and affirmed Appellant’s conviction on two of three Specifications, finding errors in the military judge’s instructions but determining the errors were harmless beyond a reasonable doubt. After a new sentencing hearing, the CAAF granted review. The CAAF disagreed that the Hills error was harmless beyond a reasonable doubt, set aside the conviction on the two remaining Specifications, and authorized a rehearing.
I. The Military Judge’s Instructions Caused a Hills Violation
The military judge instructed the members that if they determined by preponderance of the evidence that certain charged conduct occurred, even if they were not convinced beyond a reasonable doubt, then they could consider that conduct for any relevant purpose. The Court found a Hills violation, reasoning that the instruction (1) conflated the preponderance standard with the beyond a reasonable doubt standard; (2) allowed the Government to unduly emphasize the preponderance standard in its summation and to suggest that it had a lower burden of proof; and (3) could have permitted consideration of impermissible propensity evidence in convicting Appellant.
II. The Government Could Not Prove Harmlessness Beyond a Reasonable Doubt
The Government must prove beyond a reasonable doubt that any constitutional errors at trial were harmless. Here, the Court held that the Government did not meet its burden because (1) the victim effectively conceded on cross examination that her actions did not fully show a lack of consent; (2) the Government did not offer physical evidence or corroborating witnesses; (3) Appellant’s text messages did not indicate consciousness of guilt; and (4) Appellant established that the victim had reason to fabricate her story.
III. The Dissent Would Find the Errors Harmless
Chief Judge Stucky authored the Dissent, which was joined by Judge Maggs. The Dissent agreed that military judge’s instructions were erroneous under Hills, but argued that the error was harmless. In particular, the Dissent found that (1) the victim’s testimony overwhelmingly established a lack of consent; (2) Appellant acknowledged his guilt in his text messages; (3) the Government’s references to the confusing instruction in its summation were minimal; and (4) the members’ acquittal on a Specification that was proven beyond a reasonable doubt confirmed that each charge was considered independently (i.e., without use of impermissible propensity evidence).
1. United States v. Prasad:
2. United States v. Hills:
3. United States v. Hukill:
4. United States v. Tovarchavez:
 75 M.J. 350 (C.A.A.F. 2016). Hills bars use of charged sexual misconduct to establish an accused’s propensity to commit other charged sexual misconduct in the same case. See United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (reaffirming Hill’s rule); cf. M.R.E. 413(a) (permitting admission of other sexual assaults but omitting language of propensity).
 Judge Ohlson authored the majority opinion, which was joined by Judges Ryan and Sparks.
 The Dissent distinguished United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. 2019), which drew a distinction between consciousness of inappropriate conduct and of criminal guilt when resolving a mistake of fact as to consent. The Court relied on Tovarchavez to conclude that Appellant’s text messages evinced consciousness of inappropriate conduct only.