Today the President promulgated the revisions to the Manual for Courts-Martial that the Joint Services Committee proposed in 2004. The revisions amend several RCMs to authorize testimony by remote means in some instances. The revisions also authorize the services to permit Article 39(a) sessions by videoteleconferencing. The President also revised Part IV of the Manual to reflect the recently enacted UCMJ amendments creating the new court-martial offenses of killing an unborn child and stalking, and to further clarify the applicable drunk driving standards.

The changes take effect in 30 days.

Maybe now DOD will issue a revised MCM.

12 Responses to “MCM Changes”

  1. Anonymous says:

    I was wondering if the collective wisdom of CAAFlog might be interested in tackling an issue I’ve been struggling with for a while: how, exactly, will the new offense of killing/injuring an unborn child work, without creating — among other issues — an Apprendi problem?

    For example, the new article and MCM provisions authorize a maximum punishment that is “consistent with” (?) the punishment had the injury or death occured to the unborn child’s mother. If there were a finding of guilt — supported by competent evidence proving the offense beyond a reasonable doubt — of some form of homicide against the mother (say, for example, an involuntary manslaughter) then I’d imagine the maximum punishment for the death of the child would be 10 years as well (even if the accused intentionally killed the child?). But let’s imagine that the underlying offense against the mother was something like a simple assault in which she did not die bu the child did. What finding — supported by competent evidence proved beyond a reasonable doubt –would allow the court to decide what the maximum punishment should be for the death of the child? Would the members have to be instructed as to the various forms of homicide and reach a finding as to what form of homicide would have been committed against the mother if she had actually died?

    Maybe some of your contributors or readers could enlighten me. As an aside, I recently read an article that stated the reason the maximum authorized sentence provision was enacted in this way was actually to restrict the authority of the President: the fear was that an administration that was opposed to the article could, as a practical matter, simply neutralize it by authorizing a maxium sentence of “no punishment”.


  2. John O'Connor says:

    My collective wisdom is that I see no particular reason to conclude that Apprendi even applies to courts-martial. There is no constitutional right to a trial by jury in a court-martial, which is the basis for Apprendi in the first place.

    I also have little doubt that a majority of CAAF will have a different collective wisdom, and maybe all of them will.

  3. Anonymous says:

    For the sake of argument, then, let’s take Apprendi/Booker (and the Sixth Amendment per se) out of the mix: doesn’t a military accused still have the right to have all findings of guilt proved by competent evidence beyond a reasonable doubt? If so, how as a practical matter would that requirement be satisfied under the scenario I outlined above? I can’t figure out myself what legitimate “finding” the sentencing authority could rely on to determine a maximum authorized punishment. The only solution I can imagine is to instruct the members on the elements of a “shadow” homicide of the mother (paralleling the evidence actually applicable to the death of the child) and using those findings to support a determination of the maximum authorized punishment for the death of the child. Alternately, I suppose the President could simply fix a maximum for each offense: e.g. punishment for death/injury of a child resulting an assault against the mother = “X” years/months. Any other ideas?


  4. No Man says:

    I think I am being baited by Anonymous, so I’ll take the bait. First, I have not seen the Manual provision dealing with death of an unborn child so I am a bit lost on the element that would need to be proven beyond a reasonable doubt that is missing. But, more fundamentally, in response to Mr. O’Connor’s bating tactic, which I will also take, Apprendi is not based solely on the 6th A. right to jury trial. The Apprendi concept is applied in a variety of settings to make a variety of holdings. For example, in Ring v. Arizona the S.Ct. used Apprendi to hold that a jury must make the factual findings regardign aggravating factors that authorize the death penalty. In Jones v. United States, 526 U. S. 227, 243 & n. 6 (1999) the Court found that the Apprendi doctrine required the functional equivalent of elements of an offense in a hangun aggravator statute to be presented to a grand jury and an indictment returned. The constitutional basis for the right to proof beyond a reasonable doubt is the Fifth Amendment’s Due Process Clause. See In re Winship, 397 U.S. 358 (1970)—which does apply to courts-martial. Thus, if there is a problem of proof beyond a reasonable doubt, in addition to lack of a jury/members’ finding, the issue can be resolved through the Apprendi doctrine. I’ll have to read the new Mnaual provision when it is published.

  5. Anonymous says:

    The new Manual provisions are available online from the White House website, contained within the executive order approving the changes and issued on 18 April.

    No man:

    As I see it, the “missing” element or elements that would need to be proven beyond a reasonable doubt would be present in all cases where the mother did not die as a result of the underlying qualifying offense, but the child did. Since the statute and corresponding Manual provisions require the maximum punishment for the death of the child to be “consistent with” the maximum punishment authorized had the underlying offense resulted in the death of the mother (if I’m reading the statute and Manual provisions correctly) — and since there are about a half dozen homicide offenses that an accused might be guilty of having committed with respect to the mother if she had died — how do we distinguish between all those homicide offenses that might provide a clue as to the maximum authorized punishment (ranging conceivably from negligent homicide to premeditated murder)?

    If the judge, prior to sentencing, simply decided as a matter of law, what the maximum punishment was to be, wouldn’t that be a violation of the accused’s substantial rights (feel free to discuss among yourselves exactly what those rights might be and what the sources of said rights might be)?

    At this point, it seems to me, that the members would have to be instructed as to all the possible homicide offenses and enter “special” findings as to which offense is proved beyond a reasonable doubt in order to provide the judge a lawful basis to determine the maximum authorized punishment (understanding that the instructions and any finding would be a fiction, in the sense that the mother had not actually died).

    Does this make sense or am I just confused as to the meaning and effect of the statute and the Manual provisions?


  6. No Man says:


    Sounds like an interesting argument. I’ll have to take a look at the Manual revision. You may want to read James v. US (decided this week and available here inlcuding the Scalia and Thomas dissents. If the question is which statute is the analogous statute, James may scuttle the argument (except in Justice Thomas’ mind). Scalia does his best Justice Brennan impersonation in dissent and Thomas rides his Apprendi horse into the sunset. But I will have to take a closer look.

  7. Anonymous says:

    No man:

    Thanks for the citation; I’ll take a look at the case. I don’t think, though, that the issue is what is the analogous statute but, rather, what facts (and how they are to be decided) support whatever the maximum punishment is determined to be.

    Without deciding, I generally agree with you that those facts must be established by proof beyond a reasonably doubt. J.O’C. has a point that — to the best of my knowledge — CAAF and the service courts have never ruled that Apprendi/Booker/Ring are applicable to courts-martial. But is that simply because of the differences between our sentencing regime and those applicable to most civilian jurisdictions? Also, as far as I can recall, aren’t most of our “aggravating” elements currently required as a practical matter to be proved beyond a reasonable doubt (e.g. age of the alleged child, force, etc. The only exception I can think of, off the top of my mind, is “time of war”)?

    Maybe the issues arising from the death/injury of an unborn child — and the other recent changes to the UCMJ/MCM — could be the topic of a separate post? Although it might deprive appellate practicioners of their day in the sun, it might provide trial practicioners some assistance in avoiding potential issues in the first instance.


  8. CAAFlog says:

    As I once heard a civilian judge say at a CAAF judicial conference, “The secret to any great appeal is losing at trial.”

  9. Anonymous says:

    Amen CAAFlog.

  10. John O'Connor says:

    Maybe I’ve missed something, but didn’t CAAF hold that the military judge decides whether an order is lawful in an orders case? Isn’t the existence of a lawful order an element of an orders violation case? If so, doesn’t the military judge make the determination as to one of the elements of the offense? If all that is right, and I’m perfectly prepared to be told that one of these premises is wrong, doesn’t that mean that the Apprendi line of reasoning can’t require that the members find all elements of an offense, or that CAAF would have to overrule its precedent on who determines that an order is lawful if Apprendi somehow applied?

  11. CAAFlog says:

    JO’C is thinking of the New case –the very case that went to conference at the Supremes today.

  12. No Man says:

    I have always had issues with the Rule in New under the Apprendi construct. I don’ think the argument gets one very far because ultimately the issue is a jury trial prong of the Apprendi issue. The specific holding in New also cabins off Apprendi, even if you argued due process under Apprendi that the judge’s decision deprived an accused of due process to have the members (or a judge) decide the issue at a standard of beyond a reasonable doubt. CAAF’s opinion stated explicitly, “[W]e hold that lawfulness of an order, although an important issue, is not a discrete element of an offense under Article 92.” Only Judge Sullivan in concurrence in New said the issue was an element, as well as just about every MilJus treatise published before New.