Razing Hills: Repairing Military Rule of Evidence 413 in Response to United States v. Hills

228 Mil. L. Rev 293 (2020)

48 Pages Posted: 24 Aug 2019 Last revised: 5 Nov 2020

See all articles by Jeffery Barnum

Jeffery Barnum

United States Coast Guard; Independent

Date Written: March 28, 2018

Abstract

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces (CAAF) erred in categorically excluding charged misconduct as admissible under Military Rule of Evidence 413. Although CAAF correctly identified a constitutional error, their opinion swept broadly and precluded charged misconduct from being used as MRE 413 evidence in all cases.

This paper examines the history and purpose of MRE 413 and its Federal Rule of Evidence counterpart. It also examines CAAF's error. Finally, the paper proposes either a judicial or legislative fix for CAAF's overbroad opinion, but also provides updated panel instructions to guard against constitutional error.

Keywords: MRE 413, United States v. Hills, CAAF

Suggested Citation

Barnum, Jeffery and Barnum, Jeffery, Razing Hills: Repairing Military Rule of Evidence 413 in Response to United States v. Hills (March 28, 2018). 228 Mil. L. Rev 293 (2020), Available at SSRN: https://ssrn.com/abstract=3442307 or http://dx.doi.org/10.2139/ssrn.3442307

United States Coast Guard ( email )

United States

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