This is part three of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Since signed into law by President Truman on May 5, 1950, Article 46 of the Uniform Code of Military Justice has provided that “the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”

Article 46 of the UCMJ was based on Article 22 of the Articles of War (1948) and Article 42(b) of the Articles for the Government of the Navy (1946), along with a 1947 proposal to modify the Navy rules. Those precursor rules (in their then-current and prior versions) addressed the procedural method to obtain witnesses to testify at trial, with the Article of War identifying the “Process to Obtain Witnesses,” and the Article for the Government of the Navy providing for “power to issue like process to compel witnesses to appear and testify.” During congressional hearings on the proposed Code, Assistant General Counsel for the Secretary of Defense Felix Larkin explained that Article 46 “go[es] a little further; but in essence it is the same as the provision now in effect” (link to testimony).

This history indicates that Article 46 was conceived more as a rule for process than a rule for discovery. But “military law has long been more liberal than its civilian counterpart in disclosing the government’s case to the accused and in granting discovery rights.” United States v. Killebrew, 9 M.J. 154, 159 (C.M.A. 1980). For instance, before enactment of the UCMJ, paragraph 45(b) of the 1949 Manual for Courts-Martial (link) provided:

Ample opportunity will be given the accused and his counsel to prepare the defense, including opportunities to interview each other and any other person.

Then, the 1951 Manual for Courts-Martial (prepared specifically to implement the UCMJ, according to its separate “Legal and Legislative Basis” pamphlet) included similar language in paragraph 42c (link):

Counsel may properly interview any witness or prospective witness for the opposing side in any case without the consent of opposing counsel or the accused.

The 1951 language remained in effect until the 1984 Manual, which was a major revision that created the modern Rules for Courts-Martial. Included in this revision was Rule for Courts-Martial 701, unequivocally stating procedures for “Discovery.” The 1984 version of Rule 701(e) (link) was:

(e) Access to witnesses and evidence. Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.

And this language is unchanged in the current (2012) version of the Manual. So, whatever the original intent of Article 46, the Manual has long guaranteed the right of the Defense to interview witnesses. In the decades since establishment of the Code, military courts have repeatedly used Article 46 and the Rules for Courts-Martial to strike down restrictions on Defense access to witnesses.

But Section 1704 of the NDAA changes Article 46, creating the first ever statutory limitation on the right of a military accused or his counsel to interview a particular type of witness.

Article 46 now reads:

(a) Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.
(b) Defense Counsel Interview of Victim of Alleged Sex-Related Offense-
(1) Upon notice by trial counsel to defense counsel of the name of an alleged victim of an alleged sex-related offense who trial counsel intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter, defense counsel shall make any request to interview the victim through trial counsel.
(2) If requested by an alleged victim of an alleged sex-related offense who is subject to a request for interview under paragraph (1), any interview of the victim by defense counsel shall take place only in the presence of trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate.
(3) In this subsection, the term `alleged sex-related offense’ means any allegation of—
(A) a violation of section 920, 920a, 920b, 920c, or 925 of this title (article 120, 120a, 120b, 120c, or 125); or
(B) an attempt to commit an offense specified in a paragraph (1) as punishable under section 880 of this title (article 80).
(c) Process. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, or the Commonwealths and possessions.

(emphasis added). The reference to “paragraph (1)” in paragraph (b)(3)(B) is likely a typo and should refer to “subparagraph (A).”

While the language is unwieldy, the meaning of this new provision is clear. A service member’s defense counsel may contact an alleged sexual assault victim only through the prosecutor, and then may not speak with the victim without a chaperone if the victim so chooses.

Except that it’s not so clear. Rather, the text has numerous flaws that muddy the interpretative waters.

For instance, the new Article 46(b) doesn’t apply prior to “notice by trial counsel to defense counsel.” Logically, this “46(b) notice” can’t occur before military defense counsel is detailed. It also can’t occur prior to preferral of charges, since the existence of an “alleged victim” depends on the existence of an allegation of certain specified offenses. But a service member may retain civilian counsel long before charges are preferred (even before a trial counsel is assigned) and that civilian counsel is free to question whomever he chooses at that early stage. Because of this, anyone charged with a sex offense must now give new consideration to hiring such counsel as early as possible.

Additionally, Article 46(b) repeatedly uses the term “defense counsel.” It is “defense counsel” who gets notice from the trial counsel, and “defense counsel” who may contact the victim only through the trial counsel. Not “any defense counsel,” or “counsel for the accused,” but “defense counsel.”

In a court-martial, “defense counsel” refers to a certain person who is detailed to represent the accused (pursuant to Article 27) and assigned certain duties (pursuant to Article 38); it is not just any “defense attorney” who happens to come along. Since statutory interpretation demands that we assume that Congress means what it says, there’s a strong case to be made that the repeated references to “defense counsel” in Article 46(b) mean that the restrictions apply only to the detailed defense counsel, and not to other counsel, or assistants, or paralegals, or investigators, or clerks, or friends of the accused, or newspapermen . . .

Besides these textual issues, Article 46(b) will likely face numerous challenges on constitutional grounds, and rightfully so. It’s one thing to provide support services and even legal counsel to an alleged victim, but such a broad prohibition on a defense counsel contacting a prosecution witness is likely unprecedented in American jurisprudence. Notably, the prohibition exists in the total absence of any legislative findings about the vulnerability of such victims or the need for such a prohibition, or any justification through the finding of case-specific facts. And the prohibition is unlimited in time once invoked; it seems that defense counsel may never contact the alleged victim directly, even long after the case is resolved.

Put differently, this provision looks to be an unconstitutional prior restraint on speech.

There’s also the issue of enforcement. Once this provision is invoked by trial counsel, regardless of its applicability, its enforceability is another issue entirely.

For starters, Article 98 is a punitive article that criminalizes “knowingly and intentionally fail[ing] to enforce or comply with any provision of [the UCMJ] regulating the proceedings before, during, or after trial of an accused.” A military defense counsel could be prosecuted under Article 98 for violation of the new Article 46(b). But a civilian defense counsel (who is not a retired service member receiving pay) is not subject to the UCMJ and cannot be prosecuted under Article 98.

Similarly, the President will undoubtedly revise Rule for Courts-Martial 701(e) to incorporate the new restrictions on the defense, but there is still no mechanism to enforce that rule against a civilian in the early stages of a case. A military judge could use the contempt power under Article 48, but that power doesn’t exist until a case is referred and the court-martial is convened (because “military judges do not have any inherent judicial authority separate from a court-martial to which they have been detailed.” Weiss v. United States, 510 U.S. 163, 175 (1994)).

What remains is the various service Rules of Professional Conduct and the threat of disciplinary action by a JAG leading to reciprocal action by a state bar. But using the RPC to enforce a one-sided, poorly drafted, prior restraint on speech wouldn’t do much to stem the military justice crisis mentality of the past year. Rather, it would just spark the next crisis.

That crisis may be unavoidable. I suspect it won’t be long before a defense attorney, or his assistant, deliberately contacts an alleged sexual assault victim without the blessing of the trial counsel.

6 Responses to “2013 Changes to the UCMJ – Part 3: Discovery”

  1. RKincaid3 says:

    The following quote reflects adequately how bad Congress is doing its job of making the “…Rules for the Government and Regulation of the land and naval Forces….” It also adequately reflects its complete ignorance not only other relevant sections of the UCMJ when amending the UCMJ, but also its complete ignorance of the judicial “rules of statutory construction” relied upon by the courts when determining what congress meant when they enact a law.

    In a court-martial, “defense counsel” refers to a certain person who is detailed to represent the accused (pursuant to Article 27) and assigned certain duties (pursuant to Article 38); it is not just any “defense attorney” who happens to come along. Since statutory interpretation demands that we assume that Congress means what it says, there’s a strong case to be made that the repeated references to “defense counsel” in Article 46(b) mean that the restrictions apply only to the detailed defense counsel, and not to other counsel, or assistants, or paralegals, or investigators, or clerks, or friends of the accused, or newspapermen . . .

    We can only presume that Congress had the assistance of people who are supposed to know how the UCMJ works.  This is an example of how badly Congress was advised by those who were charged with helping them.  And in either case, both Congress and its advisors failed to comprehend the second, third and fourth order effects of the changes it was making to the UCMJ, and worse, it made those changes in a vacuum–with an eye towards the justness of the outcome and not the process.

  2. Dew_Process says:

    Aside from the fact that the new Art. 46(b), facially is in conflict with Art. 46(a), it runs smack into the face of the presumption of innocence; the duty of defense counsel to investigate and thus IAC issues if not done, but also violates the traditional “work product” privilege of defense counsel preparing for trial.  And what type of governmental temper-tantrum is going to occur when I send my retained private investigator to go interview the purported “victim” without the BS of going through TC?
    Does a military defense counsel now have a duty to tell his/her client that “hey, I may not be able to interview the person who is claiming that you sexually assaulted them, but a civilian defense counsel isn’t bound by this restriction!”
    Add to this, the new provisions in Art. 32, that give the purported victimthe right to decline to testify – forget about the compulsory process issue for a moment – and you are most certainly going to see cases where trialis the first time that the defense will have any access to this category of witnesses.  How do you effectively prepare for trial by ambush?
    I suspect that there is going to be a necessity of military defense counsel seeking “advice” from their State Bars’ ethics committees on this issue, i.e., does the potential threat of prosecution under Article 98, unethically “chill” the zealous advocacy most Bars’ ethics rules require?  And then of course, there’s Art. 36 . . . .

  3. af_dc says:

    D_P, agreed. It makes you wonder if the folks writing this had the benefit of any advice from any military lawyers whatsoever, or if their primary advisers were the victims from “The Invisible War”.

  4. stewie says:

    It’s a problem DP but the other side of the coin is that TC won’t know what they have with the victim until trial, and the victim will not have any practice being cross-examined and neither government nor the victim will know what’s coming either.
    I’d prefer everyone knew what was coming personally, that’s best for justice and it’s best for the accused, so not in favor of this change, just suggesting it isn’t wholly beneficial to the government to have their victim first face adverse questioning on the day of trial.

  5. RKincaid3 says:

    My concern with these latest developments is that Congress amended the process without either the experience or the knowledge of the UCMJ necessary to make complete, balanced and measured adjustments to the system as a whole.  Instead, they tighten one screw here and loosen another one there, only looking at the results while demonstrating a complete disregard for the effects of those changes on the rest of the system.  
    The law of unintended consequences dictates that given the effect of the changes discussed here today, there is a significant likelihood of the changes backfiring on the government (and Congress) once the courts get involved and start doing what they do.  So, I will say it again: the UCMJ is too complicated to be handled by the severely uninformed in Congress–no matter their constitutional authority to do so.  If Congress really wants to do right by all, both accuseds and victims, they will recognize their own hubris and step aside.  They should instead defer to a Cox Commission on steroids–one that they delegate FULL review authority.  That commission should be fully staffed by real highly-qualified experts who know the system (and legal history and theory) intimately; who can consider ALL options and recommend ALL appropriate systemic changes as a whole–with the goal of creating a true justice system.  Congress can then take those recommendations and determine which to implement, if any (should they insist on substituting thier own uninformed political judgment for that of the experts on the commission).  
    A wise Congress would set aside their petty political imperatives and adopt systemic reforms as crafted by a commission of experts. But of course, this is Congress we are talking about, so nothing will change except for the rhetoric they use to defend the indefensible–the continuing current practice of careless tinkering. 

  6. Dude says:

    Solution:  Military DC need to get to complaining witnesses before TC has an opportunity to serve notice on them of the complainant’s name and the government’s intent to call them as a witness.  That means training up defense paralegals to be able to do those important interviews solo if need be when their DC is out of town or in trial when the client walks through the door saying they are under investigation.  It’ll be a race to the complaining witness.  Even more reason why the military defense services need their own investigative arm.