United States v. Hills: Charged Offenses Cannot Prove Each Other by Propensity
Key takeaways
- Before 2016, courts allowed the government to argue propensity between charged offenses under M.R.E. 413; Hills ended that practice.
- The constitutional defects: using charged conduct to prove charged conduct undermines the presumption of innocence and dilutes proof beyond a reasonable doubt.
- United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), confirmed the rule’s breadth: the error exists regardless of forum, number of victims, or whether the events are connected.
- M.R.E. 413 still permits properly admitted evidence of other (uncharged) sexual offenses — the line Hills drew is between charged and uncharged conduct.
The case in one sentence
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), holds that charged sexual offenses cannot be used as M.R.E. 413 propensity evidence to prove other charged offenses — because doing so is unconstitutional, not merely improper.
The facts
M.R.E. 413 is an exception to the ordinary ban on character-as-propensity reasoning: in a sexual offense prosecution, evidence that the accused committed other sexual offenses may be admitted and considered for its bearing on any matter to which it is relevant — including the inference that the accused has a propensity to commit such offenses. Its companion, M.R.E. 414, does the same work for child molestation offenses, and both rules require the military judge to weigh the evidence under M.R.E. 403 before it ever reaches the panel.
Before 2016, the service courts extended that logic inside the charge sheet itself. Where an accused faced multiple charged sexual offenses in one trial, courts approved trial counsel arguing propensity between the charged offenses and judges instructing panels that they could use one charged offense as propensity evidence for another — decisions like United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. 2015), and United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. 2015), blessed exactly that practice, and one service court went so far as to describe a general presumption of admission for M.R.E. 413 evidence. The result was circular: allegations the government had not yet proven were being used as evidence to prove each other, and panels were formally instructed that they could reason that way. Hills presented that structure to CAAF.
The holding
CAAF held the practice unconstitutional. Using evidence of a charged sexual offense for propensity purposes as to another charged offense undermines the presumption of innocence and dilutes the government’s burden of proving every charged offense beyond a reasonable doubt. Each specification must stand on its own proof; the accused is presumed innocent of all of them, so none can serve as an established “other offense” against the rest.
A year later, United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), eliminated the workarounds: the use of charged conduct as M.R.E. 413 evidence is error regardless of the forum, the number of victims, or whether the events are connected. Judge-alone trials get no exception, and neither do cases where the charged incidents involve the same alleged victim or a common scheme.
Why it matters in courts-martial today
Hills reshaped how multi-specification Article 120 cases are tried. Trial counsel may not argue that the panel should believe specification two because of specification one; findings instructions must wall the charged offenses off from each other rather than invite cross-specification propensity reasoning; and instructions that blur the line are constitutional error tested under the demanding harmless-beyond-a-reasonable-doubt standard. In the years after Hills, appellate courts set aside findings across the services on exactly this ground — making the decision one of the most consequential evidence rulings in modern military practice, measured in verdicts reversed.
The decision did not repeal M.R.E. 413. Evidence of genuinely uncharged sexual offenses remains admissible for propensity when it clears the rule’s gates and M.R.E. 403 balancing. And when such evidence is admitted, the instructions carry their own requirements: the Army court’s decision in United States v. Williams, 75 M.J. 621 (Army Ct. Crim. App. 2016), reaffirmed that a judge’s M.R.E. 413 or 414 instruction must inform the panel both that an accused may not be convicted on propensity evidence alone and that the evidence does not relieve the government of its burden to prove every element of every offense charged.
For the defense, Hills issues live in three places: objections to the government’s evidence theory, scrutiny of the findings instructions, and preservation of the constitutional claim for appeal. A Hills error caught at trial can reshape the case before findings; one caught only afterward becomes an appellate fight over harmlessness.
What this means if you face multiple sexual offense charges
The number of specifications is not evidence. The government cannot ask a panel to reason that so many allegations must mean something, or to use one unproven charge to shore up another — that is precisely what Hills forbids. But the protection is only as good as the objections and instructions in your trial, and instructional error is fought specification by specification, word by word. Make sure your defense team is litigating Hills from the pretrial stage, not discovering it on appeal.
Where this case shows up in our guides
- M.R.E. 413 and 414: propensity evidence in sexual offense cases — the rule Hills limits, with the admissibility gates and instruction requirements.
- How Article 120 sexual assault cases are prosecuted and defended — where multi-specification trials and Hills issues actually arise.
- M.R.E. 404(b): uncharged misconduct — the neighboring rule where propensity reasoning is never permitted.
- Findings and instructions — the instructions that must keep charged offenses walled off from each other.
Practitioner’s note
In every multi-specification Article 120 case we defend, we litigate Hills at three checkpoints: a motion in limine fixing the permissible use of each item of evidence, a line-by-line review of the draft findings instructions against the charged-offense wall, and objections during argument the moment trial counsel’s theme drifts toward “where there’s smoke.” The instruction conference is where this case is won or lost — by the time a panel has been told it may reason across specifications, no verdict is safe and no appeal is simple.
Frequently asked questions
What did United States v. Hills hold?
That the government may not use evidence of one charged sexual offense as M.R.E. 413 propensity evidence to prove another charged offense in the same court-martial. CAAF held the practice unconstitutional because it undermines the presumption of innocence and dilutes the requirement that every charged offense be proven beyond a reasonable doubt.
Does Hills apply in a judge-alone trial or when charges involve one alleged victim?
Yes. United States v. Hukill confirmed that using charged conduct as M.R.E. 413 propensity evidence is error regardless of the forum, the number of victims, or whether the events are connected. There is no exception for bench trials, single-victim cases, or charged incidents said to form a common scheme.
Can the government still use my past conduct as propensity evidence after Hills?
Uncharged sexual offenses can still come in under M.R.E. 413 or 414 if they clear the rules' requirements and M.R.E. 403 balancing. Hills draws the line at charged conduct: allegations you are presumed innocent of in this trial cannot double as propensity proof against each other. Even admitted propensity evidence cannot alone support a conviction.
What happens if a panel was wrongly instructed on propensity between charged offenses?
That is constitutional error, and on appeal the government must show it was harmless beyond a reasonable doubt — a demanding standard that has led appellate courts to set aside findings in numerous post-Hills cases. Whether the issue was objected to and preserved at trial shapes how the appellate court reviews it.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has defended Article 120 courts-martial worldwide for more than 25 years, including the multi-specification prosecutions where Hills does its heaviest work. A former Army prosecutor and defense counsel and the author of books on cross-examination, he litigates propensity issues from the motion in limine through the instruction conference — the checkpoints where the wall between charged offenses is either built or breached.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years defending military sexual assault cases across every branch, with a practice centered on the evidence fights — M.R.E. 412, 413, and 404(b) — that decide them. She has defended accused service members in multi-allegation trials where Hills governs what a panel may be told, and she legally reviewed this profile against the decision and its progeny.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.