Here is a link to a notice published today in the Federal Register by the JSC, responding to public comments and making a final proposal for changes to the Manual for Courts-Martial. These proposed changes will be forwarded to the President for final approval.

I discussed the initial notice of proposed changes in this post. I’ve only skimmed the final proposal, but there are a few significant changes from the initial proposal. Among them include:

  • The proposed new R.C.M. 1001A now includes language providing a victim with the right to make an unsworn statement (oral, written, or both) during the sentencing phase of a non-capital court-martial. Neither party will be able to cross-examine the victim on an unsworn statement, but both sides will be able to rebut matters presented therein. Here is a direct link to the proposed language.

32 Responses to “JSC publishes final proposed changes to the MCM”

  1. afjagcapt says:

    —R.C.M. 702(a) is amended to read as follows:
    ‘‘(a) In general. A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at a preliminary hearing under Article 32 or a court-martial. A victim’s declination to testify at a preliminary hearing or a victim’s declination to submit to pretrial interviews shall not, by themselves, be considered exceptional circumstances. In accordance with subsection (b) of this rule below, the convening authority or military judge may order a deposition of a victim only if it is determined, by a preponderance of the evidence, that the victim will not be available to testify at court-martial.’’

    Looking at the comments re Art 32 strategy from when this was last discussed, this section is interesting. If this implemented and assuming the alleged victim indicates that s/he will testify at trial, under what circumstances would you ever be able to justify a deposition?

  2. Lieber says:

    they might as well just eliminate 702. 
    of course Article 46 still exists so there is cognizable argument that it trumps what the JSC has done here (i.e. if the vic is meeting with the government but not the defense)

  3. afjagcapt says:

    @Lieber, I agree to a point. I think Article 46 would justify relief in some circumstances and would still serve to prevent the hypothetical situation of the first chance DC gets to speak to the AV being on the stand. However, if the AV does (unlikely though it may be) testify at the 32 or (more likely) agrees to meet with the DC for a pretrial interview, I think the deposition route is pretty much foreclosed unless there are some exceptional circumstances I’m failing to contemplate. If that analysis is correct, I’d predict that SVC/VLCs will end up having the AV meet with the DC once in order to prevent a possible deposition and that be it.

  4. stewie says:

    Lieber, no because clearly they’ve decided to effectively make 702 a prosecution-only rule…that is, it’s only really useful in most cases when the alleged victim won’t appear at trial and the government wants to use her testimony.  I suppose it will be useful in the rare case of a defense witness who is seriously ill/dying, but other than that, this is mainly a rescue the alleged victim’s testimony rule.
    In reality, depositions are going to be exceedingly rare.  I don’t think Article 46 will ever get you a deposition.  Equal access doesn’t mean equal questioning or answering of questions.

  5. Advocaat says:

    Thank you for the links, ZS.  The change to proposed RCM 1001A that now allows victim allocution in the form of an unsworn statement during sentencing, which was in direct response to victim advocates’ public comments, was eye-opening.  The comments were largely well-reasoned and (I assume) coordinated, and they got results.  Is there a reason why the defense bar didn’t put forward a similar effort?

  6. Lieber says:

    I agree that it’s now meant to be a prosecution only rule.  Where I think myself and afjagcapt are coming from is that Article 46 should come into play in the scenario (which has been happening post-SVCs) where the alleged vic refuses to testify at the 32 and refuses to give an interview to the defense.  It can’t be equal access if the defense never gets to talk to her at all.

  7. k fischer says:

    You took the thought right out of my head.  The only person who would benefit from this rule would be the Government.  If the Vic is not going to testify, then why would the Defense want to depose her.  Of course, if she doesn’t want to testify, then her testimony would probably be good for the Accused, so why would the Government want to depose her, other than to get her recantation down on the record, so she isn’t the next Ariana Klay.

  8. afjagcapt says:

    WRT the proposed RCM 1001A, I’m not sure I see that as a big deal. Yes the “right” to cross is gone, though it was a rule-based right anyway as confrontation doesn’t apply unless its a DP case. Besides that, once the panel has convicted, it isn’t like there is usually a very hard cross during sentencing, though there may be mitigation evidence that can be pulled out. Facts can be rebutted in the same way the gov’t can with an accused. I also don’t see many TCs wanting to wade into trying to ethically advise a V on prepping these type of statements so they probably only get created when an SVC/VLC is involved.

  9. Phil Cave says:

    Well, afjagcapt,
    I have two appellate cases where the MJ allowed this based on his application of the act.
    The unsworn of one is full of uncharged misconduct, there appears to have been little if any warning of the statement or what was in it.
    This is completely different to the practice in federal court.  Unlike the military there is a delay between conviction and sentence, there is a pre-sentence report which is served on the defense with sufficient time to study and investigate and respond, and it’s FJ sentencing.  So many of the arguments for this form of participation may be fine in the federal courts.  But I’m not people made the comparison to how military sentencing is done.
    Query, victim gives unsworn.  This is the first the defense has heard or read.
    DC:  The victim has made a number of statements that are new to us.  We request a one week delay in order to investigate and rebut.  The victim never testified at the 32, she never consented to a pretrial interview, and our requests for depositions and discovery have all been denied.  We have been sandbagged.
    MJ:  Denied.

  10. (Former) ArmyTC says:

    In a total change of subject…the 2015 NDAA made the 2014 NDAA amendments to Article 32 effective to any hearing conducted after 26 December 2014…without regard as to the date of the offenses.
    The changes to RCM 405 originally proposed and subject to comment explicitly state that the rule only applies to offenses after 26 December 2014. This provision was not changed.
    So what happens to Article 32 preliminary hearings that deal with a charged offense that ocurred before 26 December 2014, but is held, say in March 2015 (so, under the new scheme, but the old rule)?
    aaaaaaaaand go…

  11. afjagcapt says:

    @PC, I guess I would ask for more facts from your appellate issue before weighing in. For example, I don’t think the rule (or any current application of the CVRA) allows the V to get up and say the accused killed President Kennedy. The proposed RCM’s section on contents of the statement say “victim impact” and define that as “any financial, social, psychological, or medical impact on the victim directly relating to or arising from the offense of which the accused has been found guilty.” I.e. even if he actually killed the President, and the victim is upset about it, unless he was convicted of it and it meets that (admittedly rather ambiguous) threshold of impacting the victim, it should be properly excluded by the MJ. Now if the uncharged misconduct you are talking about is part of the facts and circumstances of a charged offense (e.g. I was scared when he slapped me during our argument immediately prior to the rape when 128 wasn’t charged), I think that is a bit closer of a question.
    As to your query, as discussed above WRT Art 46, I don’t see that situation really occurring where you’re given absolutely no access. However, unpalatable though it may be, there is always the opportunity to respond through the accused’s own unsworn.

  12. afjagcapt says:

    @ (Former) ArmyTC, the guidance in the Air Force is that the new rules apply, period. I.e. it’s a Preliminary Hearing.

  13. Jocelyn Stewart says:

    Mr. Cave, your points are well-taken, and I agree.  I can also see where potentially defense is going to be asking for delays whenever the complainant recounts psychological impact, that she has trouble sleeping, needs Rx meds to sleep, and has been seeing a mental health counselor.  Even if the defense was on notice of the treatment, the new stiff standard under M.R.E. 513 makes it virtually impossible for the defense to even have the MJ conduct the in camera review.  Even assuming the MJ at least entertains an in camera review after the complainant’s unsworn statement and actually provides some records to the defense, the “statements of fact” contained in mental health records are not necessarily independently admissible.  I am thinking of the all-to-common scenario where complainant says that only the actions of [insert accused name] has caused me such turmoil and grief that I lost my job, my cat… you see where this is going, but the records indicate she was molested by a family member from ages 3 – 10.  It seems to me such statements of “fact”, i.e., that she was molested and that it rose to her level of consciousness enough that she was also discussing the prior molestation with her mental health counselor are relevant matters to bring before the trier of fact (with its appropriateness depending on the tactical considerations the defense must balance). If the MJ will not entertain an in camera review to look to whether or not there are prior harms that could contribute to the “impact” that the complainant alleges, then the defense is left at their peril to cross-examine into unknown territory.  Ultimately, when taken on the whole with the other substantive changes to the MCM, I see permitting complainants to testify unsworn will mean that they can allege every harm under the sun without any meaningful opportunity to impeach those statements of “fact”.  I also see issues in what a military judge will deem is a “statement of fact”, i.e., “I feel as though the accused is the root of all evil and made me lose my job and my family.”  If defense is aware of other acts (maybe those that even fall under the rubric of M.R.E. 412) that have caused turmoil in the complainant’s life, I see M.J.’s erring on the side of exclusion and not permitting introduction of those facts.  Recently in a Marine Corps case that I tried, pre-sentencing proceedings were necessary to address the client’s plea to violating MC policy for inappropriate relationship but he was acquitted of all sexual assault specifications (slept with E-2, she was not raped).  TC put the complainant on to testify about the impact of the client’s “rape” (yes, we know it is permissible but advisable?).  During the complainant’s direct testimony on sentencing, complainant mentions seeing a mental health provider, being prescribed medication, etc.  This constituted a discovery violation in response to multiple specific requests by defense.  Defense objected and asked for a 39a.  Defense moved to exclude her entire testimony.  Denied.  Defense moved to exclude all mention of psychological impact.  Denied.  Defense moved to obtain the records and a delay so that we could have a fair opportunity to cross-examine her on these alleged psychological impact.  Denied.  MJ instructed the members that they could not consider that she had seen a mental health instructor or that she had been Rx medication.  If the client is aware of M.R.E. 412 matters that he considers as contributing to her issues, is he permitted to mention those in his unsworn statement?  I should think not, and I see a defense counsel possibly being held in contempt if he dares.  But what if the complainant mentions evidence that was properly excluded prior to trial?  Will her VLC / SVC be held in contempt?  So many issues with opening this Pandora’s box.  What a mess. 

  14. Tami (a/k/a Princess Leia) says:

    Hopefully the AL will have a smart SVC who understands the risk that if interviews are refused, either tge MJ will order a deposition or the case will be overturned on appeal. The accused’s rights are Constitutional, and trump a victim’s statutory rights.

    As far as the victim’s “unsworn” statement goes, I am not seeing as much of a big deal. Is it that much of a stretch of the imagination to believe a victim has suffered from depression, the loss of relationships, gross invasions of privacy, ostracism by friends who sided with the accused, etc.? I don’t think so. I don’t see the need to get all the victim’s psychological records to rebut this, unless maybe you have something to show the victim is making it up. Even then, the defense should be able to find enough peers to testify the victim is either making it up, or is exaggerating.

  15. stewie says:

    Don’t see how the MJ is going to be able to order a depo with the pending changes to 702.  Seems to me the changes make depos a very narrow proposition that has nothing to do with refusing interviews. I’m not sure the accused has a constitutional right to interview a witness prior to trial.

  16. The Silver Fox says:

    Yeah, your opportunity to talk to the victim is called cross-examination, and that’s guaranteed by the Sixth Amendment. 

  17. Jocelyn Stewart says:

    Stewie, I have a unique situation now where the complainant in an Art 120 case declined to make her allegations to law enforcement sworn.  They asked her to swear to her statements, and she declined.  The AF TC believes that he does to have to produce her at the Art 32. She declined to participate at the Art 32.  [The AF is now using active duty MJs as the preliminary hearing officers.]  I put in a request to the CA to appoint the Art 32 hearing officer as a deposition officer and to order the deposition of the complainant, citing even the new standard of “exceptional circumstances and in the interest of justice” because there is no admissible evidence available for the TC introduce to meet the PC requirement.  Kind of backwards.  I absolutely agree with you that the new 702 limitations are intended to make depositions an even further use of government efforts at prosecution.  In this instance, I am trying to use it so I can actually have a pretrial opportunity to question the complainant.  Even if the CA denies the deposition (which, let’s face it, he will), I will be curious to see if I can convince the hearing officer to write in his report that he cannot make a PC determination without her sworn allegation.  Even if I cannot convince the hearing officer, and he finds PC by using unsworn statements, at least it is reviewable by the MJ.   

  18. Tami (a/k/a Princess Leia) says:

    The Article 32 officer can’t also be a deposition officer.  Even under the current 702 rule.  Government tried doing that with a case of mine  we objected  a d we won.  Also if the Article 32 officer feels he can’t find PC without the AV’s testimony, then the requirement is to say there’s no PC.
    As far as not being able to interview AV before trial  it’s an ineffective assistance of counsel issue and an unequal access issue.  Again  I would hope SVCs would think forward to second and third order effects of the AV refusing to cooperate  and realizing they are setting their clients up for failure by advising them to not at least interview with DC.  At least make the offer for an interview so DC can’t complain if they don’t accept the offer.

  19. Lieber says:

    jocelyn, I think the accused can say whatever he wants in his unsworn. Including 412 stuff. First amendment and all that. 
    actually vics right now are refusing to be interviewed by the defense. That’s a fact. 

  20. Zeke says:

    I’m not so concerned about the complainant having a right to present an unsworn statement.  The proposed rule provides that the victim must provide a copy of the unsworn statement after announcement of findings.  [New RCM 1001A(e)(1)].  The proposed rule also provides that the complainant’s right to give an unsworn statement in presentencing in no way limits the ability of the parties to call the complainant as a witness in sentencing under RCM 1001.  [New RCM 1001A(a)].  As such, defense counsel will have the complainant’s written unsworn before presentencing begins.  If that unsworn contains statements that defense counsel believes would be dampened if the complainant were made to explain context, of if the defense counsel simply wants to elicit testimony from the complainant explaining that his or her unsworn is not really their own words, but instead the words written by some government lawyer who was detailed to assist them, I think that would be testimony in mitigation of the punishment since it would tend to lessen the court’s estimation of victim impact.  Therefore, as I see it, the new rules would permit the defense to call the complainant to testify under RCM 1001(c) for the purposes of offering mitigating context for the matters submitted in his or her unsworn statement.  
    My lack of concern should not be misread to be agreement.  This whole endeavor is foolish.  It is premised on the idea that the accused and the complainant should have the same rights, and are similarly situated, in a criminal proceeding.  The problem with that premise is, of course, that only one of the two has a constitutional right to remain silent.  If the accused lacked a fifth amendment right against self incrimination, a competent TC would be able to call him or her to the stand to question them about the contents of their unsworn statements in sentencing, too.  

  21. stewie says:

    Silver Fox: I think your snark is misplaced, since folks aren’t relying on the constitution to make their argument, they are relying on Article 46, I just don’t think Article 46 says what they want it to say (even as I think the right answer is getting an opportunity to hear from the AV before trial in some way (at the 32, depo, interview with DC, what have you).
    TAMI, I don’t think it’s an IAC issue. You can effectively represent your client at trial even though you couldn’t interview the AV pretrial…first the standard for IAC is way too low for it to be reached by not being able to interview someone, second, the standard for cross-examination is not an effective cross, just an opportunity to cross.
    I think you are right short-term about SVC and the dangers to the AV of not talking to the defense prior to trial.  It’s still unusual, and folks still expect her to be willing to do it…but over time, folks will get used to the AV not testifying at the 32, and not talking to the defense…it will be the new normal.  At that point, it won’t be a negative (except for the issue that the AV will often perform poorly being subject to real cross for the first time at trial–that won’t change).

  22. k fischer says:

    I had a Vic testify on sentencing that the rape caused her to sit in her house with her daughter to assure her that the bad man who she met online and raped her wouldn’t be back.  Two months after she was allegedly raped, she was out behind the Chinese Wok getting impregnated by some Soldier she met online in his Ford Explorer.  She went after him for child support before the baby was born and told the command she hadn’t had intercourse for six months prior which was another bald faced lie the MJ wouldn’t let me bring in.  I wanted to lambast her on cross, but I didn’t bc of the risk of having the panel take it out on my client for me being a victim blamer   I really lost respect for the two SVPs andTC that let her get up there and testify to that foolishness.

  23. Phil Cave says:

    K.  If they knew that was false at the time of the testimony, that’s more than foolishness.  In other words, just as a defense counsel has ethical obligations with a client who wants to testify and lie, the same holds true with the government when they have a witness they know lied, or they know will lie, or know lied at a 32 or to CID, or to . . . . And unlike the defense and the client, there’s a Brady obligation.

  24. Phil Cave says:

    Tami, I don’t see the bar to the IO also being a DO.  I frequently request that when there is a civilian witness who declines to appear.  My standard request is for the AA to appoint a deposition, make the IO the DO, and issue the summons.  Usually gets denied by the way, and the appellate courts decline to enforce.  But all I have to do is change the header so I keep doing it.  I think I’m calling some of my litigation the “Fosler.”  The government keeps doing it that way for 60 years, and then all of a sudden . . . . well we can park that one to the side.
    Also, according to a certain CCA in a appellate case I did some years ago you can be the MJ who orders depositions, you can then be the MJ who is detailed to be the DO, and then you can be the MJ who hears the contested case MJA – good to go.

  25. Jocelyn Stewart says:

    The problem (indeed prohibition to) with the defense calling the complainant as a defense witness during pre sentencing proceedings if the only purpose is to impeach her testimony is an ethical one.  You cannot do it.  If perhaps you want to elicit information from her that was omitted from her unsworn statement that offers evidence in mitigation, such as since the attack, she got married, had a baby, promoted, etc. then I think you bring up a fair point.  But ethically any attorney is precluded from calling the complainant as a witness in their own case if their purpose is only to impeach what that witness said in the unsworn.  I believe this is one of the main considerations why this rule is to be passed.  The defense becomes hamstring at trying to rebut statements of fact from the unsworn.  As for the general sentiment that the defense gets a fair shake to meet that evidence by the rule’s requirement that the government hand over the unsworn of the complainant upon findings, I am left aghast.  Presentencing proceedings seldom break stride with findings and rarely is defense afforded so much as an overnight recess.  Actual investigation often takes time, a luxury this rule will not provide. 

  26. stewie says:

    Is that really an ethics rule or simply an evidentiary rule? And since the rules of evidence don’t apply at 32s would there actually be a prohibition against calling to impeach at the 32?  (Other than the obvious no PHO is ever going to allow this as a practical matter?).

  27. Dew_Process says:

    But ethically any attorney is precluded from calling the complainant as a witness in their own case if their purpose is only to impeach what that witness said in the unsworn.

    @ Jocelyn – What ethical rule prohibits this? MRE 607 expressly allows it, especially if the goal is to demonstrate that the complainant is a liar.  See, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973). For a good synopsis, see THIS.  Failing to seek to impeach a complainant’s unsworn statement, especially if you can demonstrate one of the traditional bases for impeachment, bias, untruthfulness, etc., is probably a good invitation to an IAC claim down the road.
    And as advocates, we should not assume that post-Crawford, that confrontation does not apply at sentencing.  That’s an open question now, especially in a system like the military where the sentencing process is adversarial.  See, e.g., THIS law review article.

  28. Charlie Gittins says:

    Dew:  Thanks you for that post.  I was scratching my head wondering how I avoided hundreds of ethical complaints because I thought impeaching a complainant was my job as a DC. 

  29. k fischer says:

    I’m still waiting for that courageous SVP to stand in front of the panel after a case and argue to the panel that there is no way they could rationally convict the accused based on proof beyond a reasonable doubt.

  30. Jocelyn Stewart says:

    If reading the rule alone were sufficient, there would be a great deal more exceptional attorneys in this world.  “Rule 607 is taken without significant change from the Federal Rule. It supersedes Para. 153 b(1), MCM 1969 (Rev.), which restricted impeachment of one’s own witness to those situations in which the witness is indispensable or the testimony of the witness proves to be unexpectedly adverse.  Rule 607 thus allows a party to impeach its own witness.  Indeed, when relevant, it permits a party to call a witness for the sole purpose of impeachment.  IT SHOULD BE NOTED, HOWEVER, THAT AN APPARENT INCONSISTENCY EXISTS WHEN RULE 607 IS COMPARED WITH RULES 608(B) AND 609(A).”  Even though the Committee (providing analysis to the M.R.E.s) interprets the Rule 608(b) and 609(a) to be interpreted that the use of the expression “cross-examination” in 608(b) and 609(a) is somehowe synonymous with impeachment while on direct examination, I am bound by the ethics of my state bar (which holds a strict interpretation of the words “cross-examination”).  But gee, thanks, for pointing out Rule 607.  And also, thanks for your concern about my potential IAC claims in the future.  As a CDC, I am well-acquainted with my job to impeach complainants ON CROSS-EXAMINATION.  The issue being discussed is whether as a DC, I can call a complainant during sentencing in MY case as MY witness for the SOLE purpose of impeachment. If the basis for the impeachment is to show bias, prejudice, or any motive to misrepresent, I am restricted to impeaching a witness on cross-examination.
    It would seem prudent to find out one’s own state interpretation since as we all know, we are bound by whichever is stricter. 

  31. RY says:

    JS – but if you are responding to an unsworn, the complainant is not actually your witness and she is certainly not aligned with your party.  Consider where your client submits character letters from family and TC wants to challenge the letter.  TC will often call that person up, and impeach.  They can do that because the witness is not really their witness.  There is already “evidence” offered by the opposing party from this person.  You can call them in your case to impeach the “evidence” presented by the opposition. 

  32. Jocelyn Stewart says:

    RY – interesting perspective and certainly something that I should consider.  Thanks.