Today’s Federal Register contains this public notice, 79 Fed. Reg. 59,937 (Oct. 3, 2014), of proposed changes to the Manual for Courts-Martial. The notice also solicits public comments regarding the proposed changes (due no later than December 2, 2014), and provides notice of a public meeting about the proposed changes to occur on October 29, 2014, at CAAF.

The proposed changes consume 22 pages in the Federal Register (shorter than the 34 pages of changes proposed in 2012 and only partially adopted in 2013). The proposed changes mainly implement the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013 (I discussed these reforms in a series of posts available here).

While much of the proposed changes are unremarkable, there are some surprises. For example, R.C.M. 405 (addressing the Article 32 process) is revised in its entirety (because of the revised Article 32 effective in December). The revised R.C.M. 405(h) states that

the Military Rules of Evidence do not apply in preliminary hearings under this rule except as follows . . . Mil. R. Evid. 412 shall apply in any case that includes a charge defined as a sexual offense in Mil. R. Evid. 412(d), except that Mil. R. Evid. 412(b)(1)(C) shall not apply. . . . [Mil. R. Evid.] 513(d)(8); and 514(d)(6) shall not apply.

79 Fed. Reg. at 59,941 (proposed R.C.M. 405(h)). These three Military Rules of Evidence that do not apply (412(b)(1)(c), 513(d)(8), and 514(d)(6)) are the constitutional exceptions to the general rules prohibiting admission of an alleged victim’s other sexual behavior or sexual predisposition (M.R.E. 412), establishing the psychotherapist-patient privilege (M.R.E. 513), and establishing the victim advocate privilege (M.R.E. 514).

The proposed changes emphasize that M.R.E. 412, 513, and 514 apply as exclusionary rules only, stating that the hearing officer “shall assume the military judge’s authority to exclude evidence from the preliminary hearing.” 79 Fed. Reg. at 59,941 (proposed R.C.M. 405(h)(4)) (emphasis added). Further, a new discussion section explains:

Although Mil. R. Evid. 412(b)(1)(C) allows admission of evidence of the victim’s sexual behavior or predisposition at trial when it is constitutionally required, there is no constitutional requirement at an Article 32 hearing. There is likewise no constitutional requirement for a pretrial hearing officer to consider evidence under Mil. R. Evid. 513(d)(8), and 514(d)(6) at an Article 32 hearing.

79 Fed. Reg. at 59,950.

The proposal also provides a new definition of the term “matters in mitigation” for the purpose of an Article 32 preliminary hearing:

For the purposes of this rule, “matters in mitigation” are defined as matters that may serve to explain the circumstances surrounding a charged offense.

79 Fed. Reg. at 59,941. The changes do not modify the definition of “matter in mitigation” found in R.C.M. 1001(c)(1)(B).

Other interesting proposed changes include:

  • Examples of the situations justifying closure of an Article 32 preliminary hearing from public access. 79 Fed. Reg. 59,9942 (proposed R.C.M. 405(i)(4)) (“may include: preventing psychological harm or trauma to a child witness or an alleged victim of a sexual crime, protecting the safety or privacy of a witness or alleged victim, protecting classified material, and receiving evidence where a witness is incapable of testifying in an open setting.”).
  • Establishment of a rule permitting post-referral of a case to a “parallel convening authority.” 79 Fed. Reg. 59,9942 (proposed R.C.M. 601(g)). A parallel convening authority includes “those convening authorities that possess the same court-martial jurisdiction authority” as the original convening authority. 79 Fed. Reg. at 59,951 (proposed discussion section for proposed R.C.M. 601(g)). This proposed rules “incorporates a recommendation of the May 2013 report of the Defense Legal Policy Board (DLPB), Report of the Subcommittee on Military Justice in Combat Zones.” 79 Fed. Reg. at 59,948.
  • Clarification of a victim’s right to be reasonably heard:
    • During pretrial confinement review (7-day) hearings that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,938 (proposed R.C.M. 305(i)(2)(A)(iv)).
    • During hearings on the admissibility of evidence under M.R.E. 412, that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,945 (proposed R.C.M. 412(c)(2)).
    • During hearings on the admissibility of evidence under M.R.E. 513, that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,945 (proposed R.C.M. 513(e)(2)).
    • During hearings on the admissibility of evidence under M.R.E. 514, that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,946 (proposed R.C.M. 514(e)(2)).
    • But, during sentencing hearings that right “means the right to testify under oath.” 79 Fed. Reg. at 59,943 (proposed R.C.M. 1001A).
  • Clarification of a convening authority’s power to reduce the sentence under the new Article 60(c):

(A) The convening authority may not disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence of confinement for more than six months.

(B) The convening authority may not disapprove, commute, or suspend that portion of an adjudged sentence that includes a dismissal, dishonorable discharge, or bad-conduct discharge.

(C) The convening authority may disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence not explicitly prohibited by this rule, to include reduction in pay grade, forfeitures of pay and allowances, fines, reprimands, restrictions, and hard labor without confinement.

79 Fed. Reg. at 59,944 (proposed R.C.M. 1107(d)(1)). This conforms with my interpretation of the new statute published in this post from last January, and it validates this post in which I criticized the Navy’s interpretation as erroneous.

  • Revision of M.R.E. 514 (the victim advocate-victim privilege) to become the “Victim advocate-victim and DoD Safe Helpline staff-victim privilege.’’ 79 Fed. Reg. at 59,945-46 (proposed M.R.E. 514). An note explains that:

Rule 514 was also revised to protect communications made to the DoD Safe Helpline, which is a crisis support service for victims of sexual assault in the Department of Defense. The DoD Safe Helpline was established in 2011 under a contract with the Rape, Abuse & Incest National Network.”

79 Fed. Reg. at 59,949.

  • Restoration of the missing note in ¶ 16.e of Part IV of the MCM (limiting the maximum punishment for a violation of Article 92). 79 Fed. Reg. at 59,947. I discussed reasons why the omission of this note from the 2012 version of the MCM was a typographical error in this post.

Notably, the proposed changes do not include a long-overdue rewrite of M.R. E. 412 to incorporate CAAF’s opinions in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) and United States v. Gaddis, 70 M.J. 248(C.A.A.F. 2011). See this post for a discussion of a recent Army case about the issues with the balancing test in the rule.

The proposed changes also do not include the long-overdue model specifications for Article 120, 120b, or 120c (2012). However, practitioners can still consult my post from last September titled: There are no model specifications for Article 120 (2012), but if there were then they would probably be these model specifications.

15 Responses to “JSC solicits public comments for proposed amendments to the Manual for Courts-Martial”

  1. thewritesofweiss says:

    So, MRE 412 applies at Article 32 hearings–but the exceptions to the rule, contained in the rule, do not apply. And the “alleged” victim does not have to come and testify any longer.  Again, someone explain to me why any defense counsel and accused will elect to have an Article 32 hearing any longer for an Article 120 case?  What would be the point? 

  2. stewie says:

    There really is no reason to from the defense POV, except, what stops the government from holding one anyways? It still allows the alleged victim to watch everyone else testify.
    Having said that, I still think this will end up a net “failure” for the government. The fact that the first time an alleged victim is going to be remotely questioned about her allegation being at trial is not going to go as well for that AV as I think SVPs and others think it will. Holes in the story will be missed, and the visceral credibility of the AV won’t be known until he/she is on the stand when it’s too late to fix if he/she come across poorly. I’m sure SVPs will think they can practice a good cross, but it’s hard to do that on the same side.
    In short, they will not gain much taking this away from accused and could actually end up harming their chances of conviction in some cases.

  3. stackhouse says:

    Why waive the 32 if the complaining witness won’t testify?  Because you can’t Cx the complaining witness?  You have the right to call witnesses, use the 32 for a discovery device, and essentially depose every expert witness that may testify at trial.  Call you own witness – have them produced by the IO.  Call each friend and roommate that you can get, or compel, to testify.  Also – you have to set yourself up for the judge ordering depositions in the case as well.

  4. DCGoneGalt says:

    Stewie:  You are 100% correct, everything the government does on this topic backfires.  Regardless of the desired effect (less involvement of victim v. rig the system for more convictions), it will likely result in the exact opposite, which will likely only lead to more calls for reform. 
    Stackhouse:  Spot-on.  DC must formally call the complainant as a witness even if you have SVC providing notice that the complainant declines to testify at the Art 32.  A verbatim deposition with all relevant material as fair game for questioning (to include MRE 412 issues) with the government only able to state their objection on the record is more preferable to the defense than an Art 32 with IOs prohibiting any questioning on MRE 412 matters and only a summarized statement that, in my experience, can often include a hazy recitation of the direct examination with nary a mention of what is discussed during cross.
    The law of unintended consequences shall always reign supreme in the through the rabbit-hole land of PC-Motivated Legistative Tinkering.

  5. ry says:

    Assuming this becomes rule, why waive the Art 32?  If you waive, you hamstring your opportunity to compel a deposition where, unless I am mistaken, you get to ask these questions.  With depos, opposing party can grumble about not answering but objections are preserved for the MJ to answer. If you have 412(b)(1)(C) evidence, you need an answer in order for the MJ to rule on admissibility and potentially present at trial.  In other words, I think depos become the norm for witnesses who do not testify at the Art 32.  For those that do, I suspect depos will be denied by MJs and they’ll just let the MRE 412 hearing suffice. 

  6. brian lc says:

    Stackhouse, the restrictions in the new RCM 405 go beyond just MRE 412.  There is, for example, an explicit end to use of a 32 for discovery purposes.  (The proposed rule states the limited purpose of the 32 over a dozen times!!)  I think it would be difficult for the defense to justify calling a purely government friendly witness (i.e. one who won’t offer evidence in defense, extenuation or mitigation). 
    Stewie, agree with your thoughts on an unprepared victim testifying at trial, but I would add that goes two ways.  Many military defense counsel’s cross examinations are all based on prior testimony.  (I have thought that what military defense counsel often lack in experience they more than make up for with raw effort and preparation).  Without prior testimony, however, trial cross examination will depend more on experience (and one could argue natural talent).  Past 32 practice allowed defense counsel to explore unknown areas, ask opened ended questions, and develop a record for cross at trial.  This will vanish to some degree (a large degree with victims).  I imagine CDCs becoming a relatively more valuable commodity for this reason.  (I have often thought that what CDCs sometimes lack in trial preparation they make up for with experience and, at least with some, flair).

  7. stewie says:

    This all assumes:
    1. The MJ actually grants the deposition request.  Some will, many won’t, particularly if the AV is otherwise willing to interview with DC. I concur DC should be heavily invested in the idea of requesting a depo, but I don’t think that means they still don’t have a hard choice to make on whether or not to waive the 32. I think there are benefits and risks to having it and to waiving it.
    2. Speaking of which, the second assumption of the don’t waive the 32 POV is it assumes the benefit of the putative deposition outweighs the risk of the AV sitting and watching as not only all the other witnesses testify, but you cross all of those other witnesses, then conforms her testimony at trial to match (or the depo–thus eliminating the depo as a real advantage) to eliminate areas of possible impeachment/attack.  Especially as we watch CID move from fact-based interviews to feelings-based/FETI interviews of AVs.
    Brian, I agree with you. While I think it will ultimately backfire overall, there are going to be way too many cases where it hurts the defense more. I agree that often the real benefit that DC have over TC isn’t as much about experience (although it often is, and DC I think have a better support system than TC) as it is about pure hustle (because they have slightly more time than TC).
    CDCs are real mixed bags in my experience. The best are simply amazing. The worst…are simply amazing (in a bad way). It’s truly a box of chocolates. I think you get a more steady result with military DC, and more often than not just as good if not better.  I’m not real sure what advantage CDC will have because as you allude, at the end of the day, it’s still about information, and if you don’t have it, you are at a disadvantage no matter how experienced you are.
    Still, I think most DC are going to be able to ask hard questions that an unprepared AV is going to have a hard time answering for the first time at trial. I’ve seen some pretty good crosses at 32s, so it’s doable. I’ve rarely seen an AV do well at a 32. I’ve seen them not do poorly, but rarely did they come out “unscathed.” I think that translates to trial.

  8. Mike "No Man" Navarre says:

    Am I reading it wrong or are there no classified Art. 32 investigations any longer?

  9. Zachary D Spilman says:

    I think you’re reading it wrong. Pages 59,938-9 contain a proposed new R.C.M. 404(A) that includes provisions for a protective order largely identical to those in the current R.C.M. 405(g)(6). Additionally, the proposed R.C.M. 405(i)(4) (addressing public access) clearly contemplates the introduction of classified material in that it lists “protecting classified material” as among those examples of overriding interests that justify closing the proceeding to spectators.

  10. k fischer says:

    So, what you are saying is that I’m simply amazing.  I will go ahead on put this on the endorsements page of my website:

    [Kyle Fischer is] simply amazing–Stewie, US Army JAG Corps

  11. stewie says:

    Yes, and that and a dollar will buy you any quality snack item out of most mid-range snack machine (but not any donuts or other baked products).

  12. Mike "No Man" Navarre says:

    But, correct me if I am wrong, the classified material protections in Part V do not apply?  Right?

  13. Lieber says:

    from my foxhole, so far when civilian victims are refusing to testify at 32s, the CAs and MJs are denying depo requests…how that will play out with military victims I don’t know…

  14. stewie says:

    Don’t think it would be different. Same ability exists to require a civilian to do a depo as military, it’s not like the ability (or lack thereof) to order testimony at a 32. I think some MJs will be liberal with depos, some will be conservative, and I suspect either way the courts will leave it to their discretion.

  15. Zachary D Spilman says:

    I think the the classified material protections in Part V of the M.R.E. do apply. 

    The proposed R.C.M. 405(h)(3) says:

    (3) Mil. R. Evid., Section V, Privileges, shall apply, except that Mil. R. Evid. 505(f)–(h) and (j); 506(f)–(h), (j), (k), and (m); 513(d)(8); and 514(d)(6) shall not apply.

    (emphasis added). 


    Moreover, when read in conjunction with the proposed R.C.M. 404A, I think the proposed rules are functionally identical to the current rules when it comes to classified information during the Article 32 process.