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Criminal Law

Limits on Using Prior Acquittal of Sexual Assault as Evidence of Guilt in a New Sexual Assault Case

"[T]he Government argue[d] that when considering that the charged offenses occurred after the acquittal, the [appellant's] tactics were emboldened and this factor weighs in favor of admissibility."


In U.S. v. Henderson, decided by the Army Court of Criminal Appeals on Thursday, in an opinion by Judge R. Tideman Penland, Jr., joined by Judges LaJohnne Morris and James Arguelles, the court reversed defendant's conviction for rape of a 15-year-old; it's a long opinion, but here's a particularly interesting excerpt:

Before trial, the defense filed a motion to exclude Military Rule of Evidence (Mil. R. Evid.) 413 ["Similar crimes in sexual offense cases"] evidence of alleged sexual misconduct against MP (hereinafter referred to as "413 victim"), allegations that resulted in acquittal at an earlier general court-martial…. [T]he military judge denied the defense motion regarding the 413 victim, writing:

Other than the fact of acquittal and an assertion that the [appellant]['s] sworn statement to the police was in contradiction to [the 413 victim]'s report, no exculpatory evidence was presented to this Court for consideration of this matter. Despite the obvious reasons that this factor [intervening circumstances] may weigh against admissibility as asserted by the Defense, the Government argues that when considering that the charged offenses occurred after the acquittal, the [appellant's] tactics were emboldened and this factor weighs in favor of admissibility. The Court finds this factor to be neutral.

With respect to the Mil. R. Evid. 413 evidence, the military judge only told the panel:

You have heard evidence that the [appellant] may have committed another sexual offense, that is: evidence pertaining to [413 victim]. The [appellant] is not charged with that offense. You may consider the evidence of this other offense for its bearing on any matter to which it is relevant, to include its tendency, if any, to show the [appellant's] propensity to engage in sexual offenses. … You've heard evidence that the [appellant] was acquitted of that offense in a prior court-martial. You should consider that result, but it's not binding on your determination of the evidence in the case.

[The prosecutor had argued, among other things:]

But in May of 2018, [appellant] was acquitted. He learned from those mistakes because in many ways, [the 413 victim] was not the perfect victim. Yes, she was physically easy to manipulate, but mentally she was 18, almost 19, an equal, a peer of the [appellant]. Intelligent; early college courses while in high school; an award from NASA; a software engineer. In many ways she was the wrong victim to choose and the [appellant] learned. Because what did she do? She immediately ran home to a mother who was watching out for her and told her what happened. And immediately that night, went and got a sexual assault forensic exam done and told the police. And there was a trial and he was acquitted. And he learned….

A 15-year-old runaway who has an alcohol problem and drug dependency issues. Who's going to believe her Right? Who is going to believe her even if she comes forward? They didn't believe [the. 413 victim]. Why would they believe [victim 1]? She was a more perfect victim. They didn't believe [413 victim], why would they believe [victim 1]?

The court held that the court's allowing this argument violated defendant's rights:

Subject to three threshold requirements, Mil. R. Evid. 413 permits "[i]n a court-martial proceeding for a sexual offense, a military judge may admit evidence that the [appellant] committed any other sexual offense." … The three threshold requirements for admitting evidence under Mil. R. Evid. 413 are "(1) the [appellant] must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the [appellant's] commission of another offense of sexual assault; and (3) the evidence must be relevant …." ….

"There is a need for great sensitivity when making the determination to admit evidence of prior acts that have been the subject of an acquittal." … [W]hen dealing with the "nettlesome problem" of considering the acquittal in weighing the probative value of the propensity evidence against any unfair prejudice that might result from its admission, there is an "expectation that judges deal with the admission of evidence previously the subject of an acquitted charge very carefully." … [A] military judge who admits such evidence must carefully instruct the panel the appellant was "acquitted on a charge of the same allegation and the necessity to conscientiously limit consideration of that evidence accordingly." …

The accumulation of errors started with the military judge's decision to admit Mil. R. Evid. 413 evidence regarding the 413 victim, though her allegations led to an earlier acquittal. In his analysis, the military judge credited the government's theory of the inference one could draw from the earlier result:

[T]he Government argues that when considering that the charged offenses occurred after the acquittal, the [appellant's] tactics were emboldened and this factor weighs in favor of admissibility.

The military judge did not question whether this purported inference was logical or lawful; instead, he placed it on the scales as a counterweight to the defense's opposition to the evidence. The inference was not permissible for two reasons. First, the acquittal was not legally relevant to the issue of appellant's state of mind. Using our common sense and knowledge of the ways of the world, we recognize an acquittal might embolden one to commit future misconduct. On the other hand, our experience and knowledge also tell us an acquittal is at least equally likely to encourage other behavior, including the avoidance of anything arguably unlawful. Viewed in this light, an acquittal does not create a "tendency to make [further misconduct] more or less probable[.]" Mil. R. Evid. 401 (emphasis added). Even assuming relevance arguendo, evidence of appellant's prior acquittal as used in this case does not survive the required Mil. R. Evid. 403 balancing test. Weighing the probative value of the Mil R. Evid. 413 victim's testimony against the risk of confusing the issues and creating a "distracting mini-trial" re-litigating appellant's prior acquittal and potentially misleading the members does not favor admission.

Second, the inference was not permissible because it violated the Constitution. The Constitution's Due Process Clause guarantees a person shall be presumed innocent of a charge, unless and until the government proves their guilt beyond a reasonable doubt. Anchored on this principle, "not guilty," or "acquittal" are constitutionally required labels, to which a person is entitled when the government does not meet its burden of proof in a criminal trial. And, it follows that the government violates the Constitution when it derogates this label—and its accompanying protection—by using it as part of its body of proof of that person's alleged misconduct in a subsequent case.

For these reasons, the military judge clearly abused his discretion in allowing the government to introduce evidence regarding previous alleged sexual misconduct toward the 413 victim. We do not mean to suggest that as a general principle evidence of a prior acquittal is always barred under Mil. R. Evid. 413. Rather, we hold only that the military judge erred in this case in his finding that this evidence was admissible to show that the acquittal "emboldened" appellant.

In addition, the military judge also did not exercise "great sensitivity" in addressing this evidence. Instead, by specifically affirming the government's misguided argument that the acquittal emboldened appellant's tactics, as evidenced by his written finding that "this factor weighs in favor of admissibility," the military judge gave insufficient weight to the guiding principles of Griggs and Bridges [precedents that articulate the "great sensitivity" requirement]. Likewise, by allowing the government to argue: (1) that appellant "learned from his mistakes" after being acquitted; (2) the implication that the first panel got it wrong (arguing they "didn't believe" the 413 victim); and (3) the fact that appellant had been previously court-martialed for a sexual assault defeated any mistake of fact defense in this case, the military judge did not deal with this "nettlesome evidence" very carefully.

The military judge also did not instruct the panel of the necessity to "conscientiously limit consideration" of the acquittal evidence. As noted above, the military judge only gave the standard Military Judge's Benchbook instruction with two additional sentences indicating that appellant was acquitted of the prior offense, and that the panel "should consider the result from that prior court-martial, but it's not binding on your determination of the evidence in this case." In sum, given this deficient instruction, combined with his written and evidentiary rulings, the military judge abused his discretion by not treating the acquittal evidence with the required care and sensitivity….

For the same reasons discussed above about acquittal evidence and how it may not be used, we also find [the prosecutor's] argument plainly erroneous…. [W]e see no logical or legally permissible connection between the fact that appellant was found not guilty and the notion that he "learned" how to commit additional misconduct; moreover, we find the government collectively applied this "logic" to all the Article 120 and 120b allegations. Similarly, we see no permissible connection between the fact of a previous trial—also guaranteed by the Constitution's Due Process Clause—and the prosecution's specific argument that it rendered a reasonable mistake of fact defense as to victim 2 unpersuasive. This rationale turned appellant's due process shield into a sword, and we are far from convinced that it resulted in no prejudice….

{We are also perplexed by another part of the assistant trial counsel's assertion of similarities between the proffered Mil. R. Evid. 413 evidence and the charges at trial: "[several victims]are women of color[.]" How this was even arguably relevant is beyond us. After pointing out, "for the record, [appellant], is black[,]" the defense aptly noted such comparisons are not made when white persons are involved.}

Captain Matthew S. Fields argued the case for appellant.