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.