Prosecution cannot use one charged offense to show propensity to commit another charged offense

If charged with multiple sex offenses, the government cannot use one charge to prove up the other charges.

United States v. Hills, __ M.J. __, No. 15-0767/AR

MRE 413 was not clear. Military judges were instructing panel members that if they found by a “preponderance of the evidence” (not beyond a reasonable doubt) that one of the charged offenses occurred then they could use that in finding the accused guilty of another charged offense. Make sense?  This is still allowed for uncharged misconduct.

It caused Constitutional problems because it lowered the proof needed to convict and undermined the presumption of innocence.

It is an important clarification by the highest military court and provides better guidance on instructions for the judges.  It also serves to protect the “beyond a reasonable doubt” standard.

Here is the opinion and analysis courtesy of

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