On 19 October 2011 notice of proposed changes to the Military Rules of Evidence (MRE) was published in the Federal Register (links at the bottom of this post).

The proposed changes incorporate the restyled Federal Rules of Evidence (FRE), in accordance with M.R.E. 1102 (which states that changes to the FRE will amend parallel provisions in the MRE). The U.S. Supreme Court approved changes to the FRE in April 2011 (to take effect on 1 December 2011), after a review process that began in 2006. The changes to the FRE are stylistic, meaning they are intended to constitute non-substantive changes.

Besides incorporating changes to the FRE, the proposed changes to the MRE also make additional stylistic changes.

The public is invited to comment on the proposed changes. Comments must be received by the Joint Service Committee on Military Justice no later than 9 December 2011.

Some interesting changes include:

  • Throughout the rules, the word “alleged” is added to precede the word “victim.”
  • Discussion sections are added to many rules.
  • MRE 412(c)(3) (the “rape shield”) is modified to remove the separate balancing test (but a discussion section is added referencing balancing under MRE 403).
  • MRE 514 is added, creating a privilege between a victim advocate and an alleged victim:

Rule 514. Victim Advocate—Victim Privilege
(a) General Rule. An alleged victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating advice or supportive assistance to the alleged victim… [the rule continues…]

Note: Proposed Rule 514 is contained in the pending 2011 Executive Order. No changes have been made from the pending Executive Order except to add the word “alleged” before the word “victim” to remain consistent with the rest of the MRE.  Use of the term “alleged victim” has become customary in military practice and differs from Federal practice.  See FRE 412(d) and comment associated with proposed Rule 412 in this document.

  • MRE 801(d)(2) is changed to read “An Opposing Party’s Statement” vice “Admission by party-opponent.”

Links:
Word document showing proposed changes (with notes)
Federal Register notice of proposed changes
JSC’s executive summary of proposed changes
Federal Evidence Review (blog) page on the FRE changes

22 Responses to “Restyling the Military Rules of Evidence”

  1. Phil Cave says:

    Of course the change to 801 further, solidifies the idea that a trial counsel’s statements in or out of court are not hearsay and are admissible under this rule. I do believe R.C.M. 103(16) defines parties that way. And vice-versa.

    As to the 412 change, how does that comply with the constitutional requirement of Brady? I was thinking that:

    “The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the Government’s behalf.” United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler v. Greene, 527 U.S. 263, 281 (1999). And certainly there’s more of a burden on them with a specific defense request. See, United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F. 1999). I’m thinking of United States v. Kattar, 840 F. 2d 118 (1st Cir. 1988), when I think of the government as one big entity.

    Let’s assume that the complaining witness makes a statement to the advocate who is a government agent and part of the big government, that is clearly exculpatory? That is typically the scenario that a defense counsel might be looking for when interviewing the advocate is it not?

    Just thought I’d ask.

  2. Zachary Spilman says:

    Of course the change to 801 further, solidifies the idea that a trial counsel’s statements in or out of court are not hearsay and are admissible under this rule. I do believe R.C.M. 103(16) defines parties that way. And vice-versa.

    Sure. All statements by Trial Counsel are admissible against the Government to the same extent that all statements by Defense Counsel are admissible against the Accused.

  3. John Baker says:

    One hopes the Constitutionally required exception to the victim advocate-victim privilege has teeth in court – it certainly will be the source of litigation in virtually every case the privileged is claimed.

  4. stewie says:

    I would think ethically and legally a TC would have to report an Im just making all this up or it wasn’t really nonconsensual or some such statement by the accused to the VA. Heck, I assume the VA would have similar ethical requirements.

  5. stewie says:

    alleged victim, not accused.

  6. Dew_Process says:

    Just what is the authority for proposed MRE 514? There is no corresponding FRE 514! There was obviously no such privilege at common law and how this proposed rule doesn’t fly in the face of the compulsory process or confrontation clause is going to generate needless litigation. SCOTUS has already ruled that such “privileges” are trumped by the Sixth Amendment. Davis v. Alaska, 415 U.S. 308 (1974). One would have thought that the Drafter’s of proposed Rule 514 would have at least written it to be consistent with Pennsylvania v. Richie, 480 U.S. 39 (1987).

  7. Phil Cave says:

    DP.

    Rule 1. It’s a sexual assault case.
    Rule 2. See Rule 1.

  8. Dew_Process says:

    Phil – spot on, and don’t forget, SCOTUS doesn’t apply unless it’s favorable to the government.

  9. Zachary Spilman says:

    The authority is 10 U.S.C. 836 which states that the President may prescribe rules for courts-martial that “shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” (emphasis added)

    The word document from the JSC states, in the notes, that there is a pending executive order establishing M.R.E. 514. Presumably, it will provide justification for the rule. But, as Col Baker points out, it’s not the rule that matters, it’s the application.

  10. Phil Cave says:

    So where in the Federal Rules of Evidence does it create a privilege for victim advocates. Are not rules of privilege to be narrowly construed, because they risk thwarting the truth finding process. The SCOTUS hasn’t seen fit to propose such a rule, and I don’t believe one exists in the various states.
    I’m sorry if complaining witnesses tell investigators one story and the advocate a different one. But why shouldn’t that be relevant as reflecting on credibility.
    Keep in mind that the advocate is often a prosecution tool. Yes, there are two basic kinds of “advocates” I have come across. There are those who believe and act as if their mission is the complaining witness and will not advocate or help either side. However, there are many that believe they are part of the prosecution team. They coach witnesses in such areas as “games defense counsel play,” or “how to answer questions,” or “let’s practice some question and answer,” or [fill in the blank]. It that’s the advocates practice, why is this not a legitimate area of cross-examination – were you coached and what was the coaching about. These same advocates immediately run to tell the prosecution every detail of a defense interview. Sure, I understand TC’s can get the same information from the CW. That’s not the point. The point is that some advocates are advocates for the prosecution. And so some idea that their interactions with a CW need to be protected by a privilege is misplaced. These are often the same situations where the CW is given the impression and refer to the TC as “their lawyer.” Nope, the TC is the citizens lawyer, not a lawyer for an individual CW. So when the advocate is no more than another prosecutor on the case why shouldn’t they or the CW be subject to cross examination and interview, etc., about the coaching that goes on.
    My experience is that those advocates who stay in their lane and don’t become another trial counsel do the best job, as they should. I don’t, and nobody should, have an issue with a victim advocate who stays in their lane. But once they become an adjunct prosecutor they are fair game for interview and cross-examination.

  11. Dew_Process says:

    ZS – if they’re relying on Art. 36, then that brings back the question, is that Article a grant of power to the President, or a rule of limitation as the Congressional history suggests?  This isn’t an area of military exigency such as barracks inspections, Base entrance inspections or the myriad of other uniquely military legal issues.  If there is no corresponding FRE, what is there to “apply?”  Why create a rule that on its face is a lightening rod for litigation?  Consider the history in <i>Ellerbrock.</i>  I’m not being personal here, just rhetorical.  What do you do when the VA tells defense counsel, “you cannot interview the ‘alleged’ victim.  It would be too traumatic.”

  12. Zachary Spilman says:

    I think we need to see what the Executive Order says.

  13. Dew_Process says:

    I agree that we need to see the EO, but how can one intelligently “comment” on the proposed rule addition that is based upon a non-promulgated EO?  Talk about “hiding the ball!”

  14. Zachary Spilman says:

    Well this is interesting…

    The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

    JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

    However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here

    Considering the amendments in the 19 October 2011 notice are supposed to by stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

  15. stewie says:

    Hamdan gives a clue as to whether Art 36 is permissive or restrictive. Certainly that case more or less held clause b (since repealed) of Art 36 as restrictive, but stated that clause a (the part quoted above) might be comparatively less restrictive. The Supremes spent some time differentiating the word practicable from the word practical, implying that the former is more restrictive than the latter.
    I’d guess if this issue went before them, they would give more leeway than they did in Hamdan for the President to determine what is or isn’t practicable than they did in Hamdan, but do not think such leeway would be limitless.
    I am fairly confident the right to due process under the 5th would still apply, a larger question of whether the 6th applies to C-Ms. I know the standard answer is, no it doesn’t, but not sure that’s completely true, and we know that more or less most of the 6th A precedent has more or less been adopted by the Military Courts/CAAF.
    Bottom line, the constitutional exception will be large enough to drive a jumbo jet through, and more or less I would imagine the only stuff that doesn’t come would be things that are personal/embarrassing but not relevant to the case in the slightest.

  16. Ama Goste says:

    Hmm…Stewie, that sounds like the MRE 513 “constitutionally required” exception.

  17. Dew_Process says:

    ZS – thanks for the legal sleuthing.  Hopefully Gene Fidell will chime in on this “notice” issue.

    Stewie – having worked on Hamdan’s appeal for 2 years, we spent a lot of time on the Article 36 issues.  But here, there’s no comparable FRE to apply or not apply.  It’s simply legislating via a proposed Executive Order.  The Compulsory Process clause applies via Article 46.

  18. stewie says:

    DP, I would argue that “principles of law” is not mere surplusage or in other words, Art 36 speaks to more than just looking to the FREs and if an FRE is not there to compare, then the analysis is done.

  19. Dew_Process says:

    Stewie – I’m not disagreeing with you, but note that there is no federal “principle of law,” i.e., “victim privilege” and if you look at the Congressional history, to include the now deleted requirement that the rules had to be reported to Congress, the intent was that military trial practice was to mirror federal criminal practice absent some unique “military” necessity, e.g., barrack’s inspections.  Take a look at the UCMJ Congressional hearings: http://www.loc.gov/rr/frd/Military_Law/pdf/hearings_01.pdf starting a page 1016.

  20. stewie says:

    I guess my point is that the absence of a victim privilege in Federal Court is meaningful, i.e. the “principle of law” is no victim privilege, and no MRE 514.

  21. stewie says:

    should be, no FRE 514

  22. Dew_Process says:

    Stewie – I think we’re on the same page, just looking at it from different angles.