At this link you will find the NDAA Chairman’s markup, which includes:
SEC. 535 [Log 54002]. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.
The Secretary of Defense shall modify the Military Rules of Evidence to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except when evidence of a trait of the military character of an accused is relevant to an element of an offense for which the accused has been charged. (Emphasis added.)
This is of interest partly because they are talking to the wrong person. It is the President by executive order who determines and publishes what the rules of evidence are. Certainly the secretary can direct the Joint Service Committee to study and propose such a change. But what if the President (unlikely I know) decided against such a change in a future executive order amending the Manual and the rules of evidence. This seems to show a generalized lack of understanding in the processes, about which many have commented. As I watched the RSP hearings, I was struck by the number of people who did not seem to fully grasp how all of the moving parts really work. Yes, I know there are some pretty smart and experienced military lawyers on the staff and such.
In this reportage of the just completed two-day public hearing of the SA Response Systems Panel, the writer notes the commitment of Sen. Gillibrand to offer:
about two dozen sexual assault provisions in the underlying section of the defense bill that originates in her Armed Services Personnel Subcommittee, including ideas from her sometimes rival on the issue, Democratic Sen. Claire McCaskill of Missouri, that would establish new rules for how victims and defendants should be treated. “We’re going to keep offering reform, reform, reform,” Gillibrand said.
It will be interesting to see what amendments on the treatment of an accused are offered, and whether or not they include such recommendations as full time defense investigators.
As an example of the need to fully understand the process I would cite to the proposal that a victim be allowed to make an unsworn statement on sentencing. Bill Cassara’s written objections and thoughts were read into the record. His modest proposals if the change were made were not fully adopted by his panel. But it was interesting to see some push back from the full panel, especially the Chair. In state and federal court there are extensive pre-sentence reports and “discovery” prior to the consideration of sentence. This is unlike courts-martial where you typically roll into sentencing within an hour or two, and where the sole responsibility to present a defense case comes from defense counsel. We all know that victims are rarely cross-examined during sentencing testimony, and usually there has been a pretrial interview and an opportunity for discovery. That means that what the victim will say is pretty much known. But what about the victim who introduces something substantial and unheard of before? The panel proposal allows for the defense being blind-sided with little or no practical opportunity to respond. The sub-panel chair’s response was that the defense could request a delay. The full panel chair noted that in federal court such a need was unlikely because of the robust pretrial sentencing discovery and a delay of some kind, or request for sworn testimony subject to cross-examination that would likely be granted by the federal judge, if the new information were new and substantial. Well again, we all know a delay to investigate is unlikely to happen in a court-martial. Anyway, take a look and see what you think. Of course I concur with Bill’s well reasoned proposal if unsworn victim impact statements are enacted in some form.
The two days of hearings can be viewed at C-Span, beginning here.