In the type of opinion that seems all too common there recently -- 2 or 3 page summary dispositions with no meaningful discussion of the issues presented -- the AFCCA concluded that the military judge did not abuse his discretion by giving the Dewrell instruction. "Although it is advisable to give Benchbook instructions whenever possible, we hold that the military judge did not abuse his discretion in giving the instruction at issue in this case." United States v. Schroder, ACM 35855 (A.F. Ct. Crim. App. Mar. 31, 2006) (unpublished).
In a unanimous opinion the CAAF found error in the instruction, but no prejudice. The Court wants judges to give the instructions in the the Benchbook. The Benchbook has two instructions relevant to propensity evidence. The first instruction covers other acts evidence of sexual assault or child molestation, and advises the members they can use such evidence "for its tendency, if any, to show the accused's propensity to engage in (sexual assault) (child molestation)." Benchbook ¶ 7-13-1, Note 3 at 870. The second instruction, is to be used only in “circumstances where evidence relating to one charged sexual assault or child molestation offense is relevant to another charged sexual assault or child molestation offense.” Benchbook ¶ 7-13-1, Note 4 at 871.1. That was the case in Schroder -- he was charged with offenses against two different girls. The instruction states that “Each offense must stand on its own and proof of one offense carries no inference that the accused is guilty of any other offense.” The Court’s opinion incorrectly indicates that the Benchbook “suggests that where an instruction on propensity evidence is given, the members should also be instructed that” the proof of one (sexual assault) (act of child molestation) creates no inference that the accused is guilty of any other (sexual assault) (act of child molestation). Slip op. at 14.
Not only is it inappropriate to give that instruction in every propensity case, but the second instruction is an incorrect statement of the law. It’s assertion that proof of one offense carries no inference that the accused is guilty of any other offense is contrary to the intent of Mil. R. Evid. 413 and 414 and confuses the issue. If the members find the accused guilty of one offense of child molestation, they can consider it for his propensity to commit other offenses of child molestation. The court can’t convict on the propensity evidence alone, but to suggest that the members can’t draw an inference that the accused is a child molester and has propensities to commit child molestation offenses, including the offense at hand, is incorrect. Otherwise, Mil. R. Evid. 413 and 414 make no sense.
Without approving it, the opinion also cites a formulation of a propensity evidence instruction that was approved by the 10th Circuit in United States v. McHorse, 179 F.3d 889, 903 (10th Cir. 1999). That instruction tells jurors the “defendant’s commission of another offense or offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.” That certainly doesn’t provide much guidance to jurors or court members. Legally relevant? Relevant to a layman?
Judges should just give the instruction in Note 3 from the Benchbook. I would ditch the following two sentences in the instruction at Note 4 and only give the instruction when there are at least two specifications alleging sexual assault of child molestation:
Each offense must stand on its own and proof of one offense carries no inference that the accused is guilty of any other offense. In other words, proof of one (sexual assault) (act of child molestation) creates no inference that the accused is guilty of any other (sexual assault) (act of child molestation).