The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:
- Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
- Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
- Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
- Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
- Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
- Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
- Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
- Technical changes to the new Article 6b (original text analyzed here and here);
- Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
- Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
- Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
- Section 535 enacts a new paragraph (e) in Article 6b that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
- Section 536 limits the admissibility of good military character evidence, as follows:
SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.
(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).
(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):
(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).
(2) An offense under sections 925 through 927 of such title (articles 125 through 127).
(3) An offense under sections 929 through 932 of such title (articles 129 through 132).
(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.
(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).
I’ve written about this before and I will write about it again in the coming weeks.
- Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
- Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.