It’s been a long time coming, but the President has finally signed an Executive Order (number 13696) amending the Manual for Courts-Martial to incorporate the 2013 legislative changes to the UCMJ (series of posts discussing the changes available here). The EO is scheduled for publication in the Federal Register on Monday, but you can read an advance copy here.
Edit: The final version is available here. 80 Fed. Reg. 35,783.
The changes include a new R.C.M. 405 (see this discussion of the stopgap measures), various changes to implement the new Article 6b (statute discussed here and here), and a new R.C.M. 1001A that allows a victim to make an unsworn statement during sentencing that is not subject to cross-examination (proposed rule discussed here).
Astonishingly, the EO does not provide the still-missing Part IV materials for the current version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. These materials are – presumably – included in the residuum EO (discussed here) that – we can only hope – will one day get signed, but President Obama’s failure to implement Article 120 is deeply troubling. That failure was also a topic of discussion during the recent meeting of the Article 120 subcommittee of the Judicial Proceedings Panel (at which I testified) (meeting details available here).
A summary of the new EO is after the jump. The summary is taken verbatim from an excellent write-up by the Marine Corps Judge Advocate Division (it will eventually be posted here as part of Practice Advisory 9-15).
R.C.M.s Affecting Article 32 Preliminary Hearings
R.C.M. 404A: Establishes a disclosure requirement for certain information that must be provided to the defense before a preliminary hearing. This rule supersedes a similar rule within ALNAV 086/14.
R.C.M. 405: Implements changes to Article 32 and specifically precludes the use of the “constitutionally required” exception to M.R.E. 412 at a preliminary hearing. This rule supersedes a similar rule within ALNAV 086/14 for all preliminary hearings that begin after the EO was signed. Therefore, preliminary hearing officers appointed prior to the signing of the EO who will conduct a preliminary hearing after the EO was signed must be reappointed with a new appointing order that references R.C.M. 405.
R.C.M. 703: Removes the authority of the Article 32 preliminary hearing officer to issue subpoenas.
R.C.M. 1103A: Authorizes the preliminary hearing officer to seal matters and restricts who may view these matters.
R.C.M. 404(e), 406(b), 603(b), 703(e), 705(c), 706, 902(b), 905(b), 906(b), 912, 1103, 1106(b), and 1112(c) and Pt. IV, ¶¶ 57, 96, and 96a: Replace the term “pretrial investigation” with the term “preliminary hearing.”
R.C.M.s and M.R.E.s Affecting Victim Rights
R.C.M. 305: Implements Article 6b and gives the victim certain rights to be heard and to be notified of proceedings.
R.C.M. 702: Implements Article 49 limitations on when a deposition may be ordered and provides that a victim’s declination to testify at a preliminary hearing or to participate in a pretrial interview does not, per se, warrant a deposition.
R.C.M. 801(a): Implements Article 6b to require the military judge to appoint a representative to exercise the rights of certain victims.
R.C.M. 806(b): Implements Article 6b to provide a victim the right to confer with trial counsel and not to be excluded from proceedings absent judicial determination.
R.C.M. 906(b): Implements Article 6b to provide a victim the right to receive notice of, attend, and be heard on a motion hearing for release from pretrial confinement.
R.C.M. 1001(a), 1001A: 1001A is a new rule which provides that, at sentencing, the victim in a non-capital case may make an unsworn victim impact statement orally or in writing. If the victim exercises this right, the victim is not considered a witness for purposes of Article 42(b) and cannot be cross-examined.
R.C.M. 1107: Implements Article 60(d) to provide a victim the opportunity to submit post-trial matters for the convening authority’s (CA) consideration.
M.R.E. 412, 513, 514: Implements Kastenberg, 72 M. J. 364 (C.A.A.F. 2013) and provides the victim or the patient the right to be heard through counsel.
M.R.E. 514: Extends the victim advocate-victim privilege to the Department of Defense Safe Helpline’s staff.
M.R.E. 615(e): Implements Article 6b and provides the victim the right not to be excluded from court-martial proceedings unless the military judge determines that the victim’s testimony would be materially altered by attending.
R.C.M.s Affecting Convening Authority Decisions
R.C.M. 201(f): Implements changes to Article 18 to limit court-martial jurisdiction over penetrative sexual assault offenses, and attempts to commit such offenses, to general courts-martial. Only applies to offenses committed after 23 June 2014.
R.C.M. 601(g): Creates a new rule, permitting CAs to transfer charges to a parallel CA for disposition under certain circumstance. As one example, if the original CA is deploying and the accused is remaining behind, the CA may transfer an ongoing case to another CA.
R.C.M. 1105 and 1107: Implements changes to Article 60(b) to limit the convening authority’s power to alter the findings and sentences of courts-martial; prohibit consideration of matters concerning the victim’s character that were not admitted into evidence; require the convening authority to issue a written explanation for setting aside any finding of guilty or disapproving, commuting, or suspending any part of the sentence; and authorize correction of any type of error (instead of only clerical errors) in a convening authority’s action. The limitations on Convening Authority’s Action apply to offenses committed after 23 June 2014, but these limitations do not apply to straddling cases. For a detailed explanation of the changes to Article 60, please see Practice Advisory 4-15.
R.C.M. 1301(c): Implements changes to Article 18 to prohibit summary courts-martial from exercising jurisdiction over certain sex offenses. Only applies to offenses committed after 23 June 2014.
Additional Changes to Evidentiary Rules and Enumerated Articles
M.R.E. 404: Prohibits admission of general military character evidence for purposes of offenses charged under Articles 120–123a, 125–127, and 129–132, or attempts to commit those offenses, and any other offense for which it is not relevant to an element. As is explained in more detail below, this only applies in courts-martial in which the accused was arraigned after the EO was signed.
M.R.E. 513(d): Removes the “admission or disclosure of a communication is constitutionally required” exception. As explained in more detail below, this only applies in courts-martial in which the accused was arraigned after the EO was signed.
M.R.E. 513(e), 514(e): Establishes a four-part test—similar to the U.S. v. Klemick, 65 M.J. 576 (NMCCA 2006) test—that must be satisfied before a military judge may conduct an in camera review of evidence falling within the privileges and requires any disclosure of that evidence to be narrowly tailored. As explained in more detail below, this only applies in courts-martial in which the accused was arraigned after the EO was signed.
Article 81: Includes conspiracies to violate the law of war. Only applies to offenses committed after 17 October 2006.
Article 92: Increases the maximum punishment for derelictions of duty that result in death or grievous bodily harm. Only applies to offenses committed after 16 June 2015.
Article 93: Maximum punishment increased to 2 years. Only applies to offenses committed after 16 June 2015.
Impact of Executive Order 13696 on On-Going Proceedings and Hearings
As stated in EO 13696, any non-judicial punishment proceeding, restraint, preliminary hearing, referral of charges, trial in which arraignment occurred, or other action commenced prior to the signing of the EO shall not be invalidated by the new rules and, if still in progress, may proceed as if the new rules had not yet come into effect. See also U.S. v. Nicholas, 6 C.M.R. 27 (USCMA 1952). Stated more plainly, if a discrete military justice event began before EO 13696 was signed, the rules that applied to the event when it began continue to apply until the event concludes. Therefore, if an accused was arraigned before 17 June 2015, the new rules would not take effect for that trial. The same applies to preliminary hearings convened under the procedures prescribed in ALNAV 086/14 and that began before 17 June 2015. However, the new rules do apply to the next military justice event that occurs after 17 June 2015. For example, the new rules will not apply at a preliminary hearing already in progress, but would apply to the referral and throughout the course of the trial.