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.”
• 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