There is a troubling and potentially dangerous disconnect between the rules, procedures, and penal code sections that exist under the UCMJ, and the creativity and innovation that exists amongst the various states rules, procedures, and penal code sections. We can – – -and should – – -improve our UCMJ, and the practice of criminal law in the miltary, by looking to and learning from criminal law practice in the 50 states. To date, we have rarely looked to state practice.
In the coming months, I plan to suggest improvements to the UCMJ, all of which come actual state practice. My suggestions will cover changes to the evidence rules, the punitive articles, procedural rules, and other related areas. One goal is to stimulate an intelligent dialogue, and inform decisionmakers about what is happening- – -and has been happening- – -in the states. My ultimate goal is to improve the criminal justice system in the military, for victims and defendants alike.
An obvious place to start is in the area of domestic violence and sexual assault cases. I start with the former.
As a former local, state, and federal prosecutor (and military defense and trial counsel), I think it is obvious that our UCMJ is in need of updating and revision. At the outset let me be clear: the UCMJ (to include the MRE’s and RCM’s) is a remarkable and carefully crafted instrument, and any changes to the UCMJ should only be made after great thought and deliberation. That said, there is much room for improvement.
Typically, it has been the states (not the federal government or the military) that have been at the forefront of advancements in criminal law, evidence code revisions, and the creation of appropriate criminal laws. For many reasons, it takes the federal government years (sometimes) to recognize- – -if ever- – -advances in various states’ criminal justice initiatives. Changes to the UCMJ typically occur after the federal government passes new federal rules (under 18 USC or FREs). There are many reasons why the feds lag behind the states in this respect. And there are certainly plausible reasons why the committee that considers changes to the UCMJ – – -the Joint Services Committee, an arm of the DOD General Counsel – – -looks to the feds before recommending changes to the UCMJ.
In some instances, however, that delay is unwarranted. Indeed, it has harmed the administration of justice in the military in some cases. The Joint Services Committee should look at best practices around the country for guidance, not just the federal government.
In 1995 the California legislature passed Evidence Code section 1108, which allowed the prosecution to admit evidence of another sexual offense against the defendant in a sexual assault case (so-called “propensity” evidence). Congress enacted FRE 413 and 414 in 1994, and eventually it was adopted for court-martial in 1996. Fine, that covers sexual assault cases, but what about domestic violence cases?
In 1996, the same California legislature passed a similar provision – – -Evidence Code section 1109 – – -which allowed the admission of evidence that the defendant committed acts of domestic violence in other domestic violence cases. Here is how that rule works in a typical case: defendant assaults victim; victim calls 911; police show up and take statement from crying victim; police document crime scene and take pictures of any injury. A misdemeanor charge of assault is filed. Meanwhile, the victim and defendant reconcile, and the victim recants or refuses to testify. The prosecutors attempt to locate previous wives or ex-girlfriends (or the like) of the defendant, and ask them about any potential violence. At trial, the government calls previous girlfriends of the defendant who the defendant abused. They testify, in detail, about the prior assault. The government also puts on all other evidence of the assault, and puts into evidence the 911 call by the victim. The victim refuses to testify, and the government rests. At closing argument, the government argues that the defendant has a propensity to commit domestic violence in this case, because of the prior victims. Like all cases, the jury convicts sometimes, and acquits in other cases.
Anyone who has spent years actually prosecuting or defending domestic violence cases, sexual assault cases, and sex abuse cases, knows that these propensity rules of admissibility make sense. These defendants are different, and the normal rules underlying the rationale of MRE 404b (excluding propensity evidence ) ignore that reality. Yet, we have no 1109 equivalent in the military. The lack of such a rule has harmed, and continues to harm victims of domestic violence in the military. That needs to change.
Penal Code 591 and 591.5 – – -When I was a Deputy City Attorney in the San Diego City Attorney’s Domestic Violence Unit (working for renowned domestic violence prosecution visionary Casey Gwinn), it was quite common to handle cases of simple assault where the accused had (in addition to assaulting the victim) pulled the phone out of the wall or disabled any other communications device to prevent the victim from reporting the crime to law enforcement (or anyone for that matter). Evidence in those cases would often include a 911 call; a crying victim; slight injuries; a house that was torn up, and; a phone cord pulled out of the wall. By the time you got to trial, the victim had recanted and refused to testify. We routinely called previous girlfriends to the stand in our case-in-chief under Evidence Code section 1109. They testified about assaults the defendant committed against them. Often, they brought pictures to court of the abuse inflicted by the defendant. That evidence was powerful. Without it, juries had no idea of the propensity of the accused.
We had another tool, one which we need in the military. California Penal Code section 591 makes it a crime to willfully and maliciously remove, injure, or obstruct a telephone (or any communications device). And, because of the increased use of cell phones by citizens, the California legislature enacted Penal Code section 591.5 in 2003—which makes it a crime to unlawfully and maliciously remove, injure, destroy or damage a cell phone with the intent to prevent the use of the device to summon assistance or notify law enforcement. The result: victims are empowered, and more accused’s are held accountable—-and get help for their actions. As in many domestic violence simple assault cases, the government loses the simple assault charge, but wins the disabling the communications device charge. And, not surprisingly, those reluctant victims often thank the prosecutor after the conviction. We need similar provisions under the UCMJ.
In the coming weeks and months, I plan to propose other common sense improvements to the UCMJ. I recognize that the aforementioned improvements are California-centric, and prosecution-centric. Over time, however, I plan to propose other improvements drawn from other states, and ones that could easily be characterized as “defense oriented.”
The goal is to make our criminal justice system in the military reflect the very best that our Country has to offer. I welcome your thoughts and remarks, and look forward to an intelligent dialogue.