MRE 413 and MRE 414: Fighting Propensity Evidence at Court-Martial

In almost every American criminal courtroom, the government cannot argue that a defendant is simply the kind of person who commits this crime.

Courts-martial are different.

Military Rules of Evidence 413 and 414 carve a wide exception into that rule. In a sexual offense case, and in a child molestation case, the prosecution may ask a panel to consider other alleged offenses — and to draw exactly the inference the law otherwise forbids.

When those rules go the government’s way, a one-accuser case becomes a three-accuser case. When they go the defense’s way, the prosecution is left with the case it actually charged.

That is why MRE 413 and 414 litigation is often the most consequential motion practice in the entire case, and why it happens months before a panel is ever seated.

What the Rules Actually Say

MRE 413 applies when an accused is charged with a sexual offense. The military judge may admit evidence that the accused committed any other sexual offense.

MRE 414 applies when an accused is charged with an offense of child molestation. The military judge may admit evidence of the accused’s commission of another offense of child molestation.

Both rules provide that the evidence “may be considered on any matter to which it is relevant” — language the government reads to include propensity and predisposition. Both function as express exceptions to MRE 404(b)’s bar on character evidence. And CAAF has treated the two rules as analytically interchangeable. United States v. Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001).

Both also carry a notice obligation. The government must disclose the evidence it intends to offer, including witness statements or a summary of expected testimony, at least five days before trial — a far shorter runway than the federal rules provide, and one reason defense counsel should be pressing for disclosure long before the deadline arrives.

The constitutionality of the rules is settled. United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000). What is not settled — and what is litigated in nearly every case — is whether this particular evidence, against this particular accused, clears the gates the appellate courts have built.

The Gates: What the Military Judge Must Find

A military judge cannot simply let the evidence in. Wright requires a two-step analysis.

Step one — three threshold findings:

1. The accused is charged with a qualifying offense under the rule;
2. The proffered evidence is evidence of the accused’s commission of another qualifying offense as the rule defines it; and
3. The evidence is relevant under MRE 401 and 402.

See Wright, 53 M.J. at 482; United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010); United States v. Fetrow, 76 M.J. 181 (C.A.A.F. 2017).

Relevance at this stage is conditional. Under MRE 104(b) and Huddleston v. United States, 485 U.S. 681, 690 (1988), the question is whether a reasonable factfinder could find by a preponderance that the accused committed the other act at all. Uncorroborated accusation is not automatically enough.

Step two — MRE 403 balancing. Only if all three thresholds are met does the judge weigh probative value against unfair prejudice, using the non-exhaustive Wright factors:

• strength of proof of the prior act — conviction versus gossip
• probative weight of the evidence
• potential for less prejudicial evidence
• distraction of the factfinder
• time needed to prove the prior conduct
• temporal proximity
• frequency of the acts
• presence or absence of intervening circumstances
• relationship between the parties

That list is a defense roadmap. Every factor is a place to build a record.

The Case Law That Protects the Accused

Charged offenses cannot cross-pollinate. In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), CAAF held that the government may not use one charged offense as MRE 413 propensity evidence for another charged offense in the same case. The court called it antithetical to the presumption of innocence to suggest that conduct an accused is presumed innocent of can show a propensity to have committed other conduct he is also presumed innocent of. The resulting instruction was constitutional error.

Hills reshaped military appellate practice. Dozens of convictions were set aside or remanded in its wake.

The rule applies everywhere. United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), confirmed that the error occurs regardless of forum, regardless of the number of victims, and regardless of whether the events are connected. A judge-alone trial is not a cure.

The government carries a heavy burden on appeal. Because Hills error is constitutional, it must be shown harmless beyond a reasonable doubt. See United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017); United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018); United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019).

Definitions are enforced strictly, not expansively. MRE 414 reaches only conduct that falls within the rule’s specific definition of an offense of child molestation. In United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010), CAAF held that child pornography filenames did not qualify, because sexually explicit conduct “with children” requires conduct in the physical presence of a child. Fetrow reinforced the point through ordinary rules of construction and added a timing dimension: the conduct must have qualified under the rule as it existed at the relevant time.

A silent record invites reversal. Where a military judge fails to articulate the 403 balancing on the record, the ruling receives substantially less deference on review. United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005).

The 404(b) back door is under scrutiny. In United States v. Greene-Watson (C.A.A.F. 2025), Judge Hardy’s concurrence questioned whether military courts have stretched the “common scheme or plan” theory under MRE 404(b)(2) so far that it now admits propensity evidence under a different label — and signaled openness to revisiting the issue. When the government’s 413 or 414 theory collapses, 404(b) is where it usually reappears. That argument deserves the same scrutiny.

How Cave & Freeburg Litigates These Motions

There is no template. There is a method.

Force disclosure early. Five days is not enough time to investigate a decade-old allegation. We litigate for meaningful notice, the underlying statements, and the identity of every witness the government intends to call — well before the rule’s deadline.

Attack the definitional threshold first. Before anyone reaches 403, the offered conduct must actually be a qualifying offense under the rule’s text, as Yammine and Fetrow require. This argument is frequently the strongest one available and the one prosecutors prepare for least.

Demand a real 104(b) showing. If the government cannot establish that a reasonable factfinder could find the other act occurred by a preponderance, the analysis ends. Rumor, third-hand report, and recycled allegation are not proof.

Build the Wright record factor by factor. Temporal remoteness. Intervening circumstances. Dissimilarity in relationship and conduct. The mini-trial the evidence will require. Judges who are handed a developed record on all nine factors rule differently than judges who are handed argument.

Police the Hills line without exception. We object to every use of charged conduct as propensity evidence for other charged conduct, and to every instruction that permits it, in members cases and judge-alone cases alike.

Control the instructions. Hills was, at bottom, an instruction case. We propose tailored language, object to Benchbook formulations that dilute the presumption of innocence, and make certain the panel is told the government’s burden on every element is untouched.

Preserve everything. MRE 105 places responsibility for objecting and limiting squarely on counsel. Issues not preserved at trial are issues surrendered on appeal. Our motions are written to win in the courtroom and to survive review at the service court and CAAF.

Case Result: United States v. E-7

MRE 414 motion granted in full. 404(b) motion granted in full. Charges dismissed. Retirement preserved.

A senior Air Force noncommissioned officer faced general court-martial on multiple specifications arising from allegations by family members. The government’s theory depended heavily on aggregating the allegations — treating each accusation as support for the others.

The defense filed a coordinated pretrial motions package, led by a motion to exclude propensity evidence under MRE 414 and MRE 404(b), and joined by a multiplicity and unreasonable multiplication of charges challenge, a motion for a bill of particulars, and motions to compel production of records the government had not obtained. Counsel also retained a forensic psychologist with expertise in memory and suggestibility, and conducted a line-by-line analysis of the recorded investigative interviews — work that documented a contamination chain running through the accounts and exposed material contradictions between the two accusers.

The military judge granted the defense motion in its entirety, in a written ruling issued the day after argument. The MRE 414 evidence was excluded. The alternative MRE 404(b) theory was excluded with it.

What remained was the case the government had actually charged, without the accumulation it had been built to rely on. The charges were dismissed with prejudice and the matter resolved through nonjudicial punishment, with the client’s retirement eligibility intact.

Prior results do not guarantee a similar outcome. Every case is decided on its own facts.

Frequently Asked Questions

Can the government use an allegation I was never charged with?
Yes. That is precisely what MRE 413 and 414 are designed to permit. The allegation does not need to have resulted in a charge, a conviction, or even a report at the time. It does need to satisfy the rule’s definition, and the government must be able to show a reasonable factfinder could find it occurred by a preponderance.

Can the government use a charge I was acquitted of?
Not as propensity evidence for other charged conduct in the same case. Hills forecloses that. Acquitted conduct from a prior, separate proceeding raises different questions and requires case-specific analysis.

What if the other allegation is fifteen years old?
Age matters but is not automatically disqualifying. There is no fixed temporal limit in the rule. Remoteness is weighed under Wright, along with intervening circumstances and the strength of proof — and stale allegations are frequently the most vulnerable to a 403 challenge.

Does it help that I chose a judge-alone trial?
Not on this issue. Hukill held that Hills error occurs regardless of forum. A military judge is presumed to know the law, but the presumption does not repair an erroneous ruling.

Do these rules apply to child pornography charges?
Not automatically. Yammine held that possession offenses do not necessarily qualify as offenses of child molestation under MRE 414, because the rule’s definition requires conduct involving a child’s physical presence. This is a live and frequently winnable argument in CSAM cases.

How early does this fight start?
Immediately. By the time notice arrives, the investigation that defeats the evidence should already be complete. Counsel retained early has time to locate the witnesses, records, and expert analysis that make a 403 argument concrete rather than theoretical.

What if my trial defense counsel did not object?
Failure to object narrows appellate review but does not always end it. Hills and Hukill generated substantial post-trial and appellate litigation. If propensity evidence was used against you at court-martial, our appellate practice can evaluate the record.

Talk to Counsel Who Have Litigated These Motions

MRE 413 and 414 practice rewards preparation and punishes improvisation. The rules are complex, the appellate law is unforgiving in both directions, and the outcome frequently determines whether the government tries one case or three.

Cave & Freeburg, LLP represents service members worldwide in sexual assault, child offense, and domestic violence courts-martial, and in appeals and adverse administrative actions. Our partners are former military lawyers who try these cases at installations across the United States, Europe, and the Pacific.

Call for a confidential consultation.

By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed August 5, 2026.)