With Executive Order 13,730 of May 20, 2016 (available here), President Obama amended the Manual for Courts-Martial.

The Executive Order makes no significant changes to the JSC’s final proposed amendments, previously discussed here and here.

The amendments do not include the still-missing Part IV language for the newest 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. I’ve previously noted (here, for example) the deeply troubling failure of President Obama to fulfill his duty to update the MCM to address the 2012 changes.

The amendments also do not include an update to Mil. R. Evid. 412 (the military rape shield rule) 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), that found constitutional deficiencies with the balancing test in the rule.

However, the amendments do make a number of significant changes that are very friendly for prosecutors. They include:

• Revising the corroboration requirement for admissibility of an admission or confession by the accused, changing it from focusing on the truth of the statement to focusing merely on its trustworthiness.

The corroboration rule was part of our #10 Military Justice Story of 2015. The preexisting (and longstanding) rule requires independent evidence that is sufficient to corroborate “the essential facts admitted to justify sufficiently an inference of their truth.” Mil. R. Evid. 304(c)(1) (2015). See also United States v. Adams, 74 M.J. 137 (C.A.A.F. Apr. 27, 2015) (CAAFlog case page). The new rule, however, merely requires:

independent evidence, either direct or circumstantial, [be] admitted into evidence that would tend to establish the trustworthiness of the admission or confession.

Mil. R. Evid. 304(c)(1) (2016).

• Limiting application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The preexisting (and longstanding) rule provides that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused makes a timely objection and has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new rule, however, adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

• Expansion of the circumstances under which a out-of-court prior consistent statement of a witness is not hearsay.

The preexisting (and longstanding) rule is that a witness’s prior, out-of-court statement that is consistent with the witnesses’s in-court testimony is not hearsay when it is “consistent with the declarant’s [in-court] testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” Mil. R. Evid. 801(d)(1)(B) (2015). The new rule, however, adds a second condition under which such a statement is not hearsay:

to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Mil. R. Evid. 801(d)(1)(B)(ii) (2016).

• Shifting the burden to prove trustworthiness of business and public records as exceptions to the hearsay rule.

The preexisting (and longstanding) rule is that a regularly conducted activity (a business record), the absence of such a record, or a public record is admissible as an exception to the hearsay rule only if the proponent of the record demonstrates that the circumstances do not indicate a lack of trustworthiness. Mil. R.s Evid. 803(6)(E), 803(7)(C), 803(8)(B) (2015). The new rules, however, shifts the burden to the opponent of the record; for example:

the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

Mil. R. Evid. 803(8)(B)(2016).

• Making the failure to state an offense a waivable ground for dismissal.

The preexisting (and longstanding) rule is that a charge or specification shall be dismissed at any stage of the proceeding if “the specification fails to state an offense.” R.C.M. 907(b)(1)(B) (2015). But see United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page) (applying the plain error test when such failure is raised for the first time on appeal).

The new rule, however, provides that a motion to dismiss the defective specification must be made prior to adjournment of the court-martial or else the issue is waived. R.C.M. 907(b)(2)(E) (2016).

67 Responses to “2016 Amendments to the Manual for Courts-Martial”

  1. Will M. Helixon says:

    Big Brains:
     
    Is the inverse true of the expanded out of court consistent statement?  If the defense attacks the witness on “another ground” (which I read to mean in any way), can the defense say failure to offer such consistent statement by the government means they don’t exist?  Is it now relevant to show through CX that such statements were never made?  If a single statement is offered, I think evidence of opportunity to offer such statements, and failure to do so becomes relevant.
     
    Will M. Helixon

  2. Old School says:

    Can any readers provide insight into the impetus behind the additional exclusionary rule factor? 

  3. LT Weinberg says:

    Hot damn that’s a big change on prior consistent statements. At least when it comes to the complaining witness, they’ll pretty much always be admissible on redirect. This will affect tactics in a significant way.

  4. The Silver Fox says:

    Old school:  See Herring v. United States, 555 U.S. 136, 141 (2009) (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”).  Automatic application of the exclusionary rule has been rejected by SCOTUS, and the rule change now makes military law reflect that.  Bravo, Mr. President. 

  5. Frank The Tank says:

    Old School, the new exclusionary rule requirement is a gloss of U.S. v. Herring, 555 U.S. 135 (2009), in which the Supreme Court held that when a Fourth Amendment violation is “the result of isolated negligence attenuated from the arrest,” the exclusionary rule should not be applied to suppress the illegally obtained evidence.  In Herring, the Supreme Court discussed its “precedents [which] establish important principles that constrain application of the exclusionary rule,” including that police negligence is less susceptible to deterrence by the exclusionary rule than willful police misconduct.  Id. at 140.  The new MRE 311 provision quotes from this discussion in Herring rather than the holding, as have many District and Circuit Court opinions over the past 6 years.  For a cogent explanation of why the Herring majority’s opinion is completely nutty, see Justice Ginsburg’s spot-on dissent, or Wayne LaFave, The Smell of Herring: A Critique of the Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology 757 (2009).

  6. MMQB says:

    “exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”  What does “costs to the justice system” mean?  Does it mean, “well, this guy is reeaaallly guilty,” or “this guy did a VERY bad thing,” as opposed to something less than that?  Who decides this ephemeral philosophical question? The trial judge?  I think we need the Bat Computer on this one.

  7. Lone Wolf says:

    “Cost to the Justice system” means that judges are supposed to stop excluding evidence.  This will turn it into a straight Constitutional standard, because isn’t this rule really just codifying the right against unreasonable search and seizure?

  8. Brian Bouffard says:

    MJ:  Agent Jones, you appear to have violated the Accused’s rights, and I’m considering applying the exclusionary rule.  If I keep this evidence out because of your misconduct, will that deter you from similar misconduct in future investigations?
     
    WIT:  No.  I’m going to keep doing whatever the hell I want.
     
    MJ:  Understood.  Defense motion is denied.

  9. Old School says:

    Many thanks for the background, everyone.
     

  10. The Silver Fox says:

    There are times when the police screw up, but they don’t do so out of bad faith, willful negligence, or a desire to subvert constitutional rights.  It’s in these situations (reasonable mistakes) that the application of the exclusionary rule shouldn’t be automatic because it does little to deter future misconduct.  This is the same reason we have a good faith exception starting with Leon (which, too, is codified in the M.R.E.s).  Look all you want, but the exclusionary rule isn’t in the Fourth Amendment or anywhere else in the Constitution.  Judges made it up (in Mapp v. Ohio), and judges can take it away.  

  11. The Silver Fox says:

    Correction:  The exclusionary rule was created in Weeks v. U.S. but applied to the states famously in Mapp.

  12. stewie says:

    If we already have a good faith exception, why do we need a change to the exclusionary rule?

  13. The Silver Fox says:

    The good faith exception, as articulated in Leon, only applies to warrants that are later found to be defective.

  14. Zeke Kennen says:

    As The Silver Fox said, this is just an expression of the Supreme Court’s holding in Herring.  The exclusionary rule was only ever meant to “deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”  Herring v. U.S., 55 U.S. 135, 144 (2009) (oyez).  Of course, a lot has changed in the composition of the Supreme Court since Herring was decided.  Roberts, Thomas, and Alito would likely be the minority if the case were decided today.
    Also, applying Herring’s curtailment of the exclusionary rule to the military jurisdiction is not the equivalent of doing the same in the civilian jurisdiction.  Exclusion is only one of three regimes which the Supreme Court has traditionally relied upon to give teeth the the Fourth Amendment – the other two are 1) the availability of relief by civil suit, and 2) criminal prosecution of law enforcement officers for trespass.  Herring, 555 U.S. at 153.   In many ways, Herring merely represents a preference for those means of enforcement over the option of exclusion. 
     
    However, the military is different in a way that makes Herring less applicable.  Military defendants, unlike their civilian counterparts, don’t have the option seeking civil relief for violations of their Fourth Amendment rights because of Feres v. U.S., 340 U.S. 135 (1950).  That means that unless military judges are willing to apply suppression, the only remaining means of enforcing the Fourth Amendment in the military is for convening authorities to prosecutor (or at least administratively/nonjudicially punish) offending military law enforcement officers.  Maybe that will happen.  After all, Article 98 was created just for such purposes.
     
    Military judges will likely, for a time, refuse to apply exclusion because of the MRE change.  However, over time, with civil suit being off the table because of Feres, if the government cannot demonstrate that it has been willing to employ that last remaining means of giving the Fourth Amendment effect – criminal prosecution of police officers – then it could find that military judges become less and less willing to continue forgoing exclusion.  
     
    This is the military justice system’s opportunity to either demonstrate that the exclusionary rule for Fourth Amendment violations is not needed because the system is eager to prosecute offending officers, or that exclusion actually was necessary all along because the government has made itself immune to civil liability and proven unwilling to prosecute offending police officers.  My bet is that the exclusionary rule will rise again … I don’t see convening authorities prosecuting the members of their military law enforcement agencies.

  15. Tami a/k/a Princess Leia says:

    I had a client whose computer was one of thousands unlawfully searched by the good folks at JPED.  So does this new rule mean JPED gets to search at will, even after finding no classified information?  Is the message going to be, “Don’t worry about that pesky technicality called the 4th Amendment, we’re applying the child porn exception”? 
     
    Or what about the Marine case (I think Hoffmann was the name), is the message going to be, “OK, you thought you’d “seized” the computer and kept it for a while, even though he revoked consent, but because you thought you’d sufficiently “seized” it before revoking consent, and you wouldn’t have let him access his own computer even after he revoked consent, and there’s an “intuitive relationship” between child enticement and child porn, and because it’s child porn, I’m going to let this evidence in anyway”?
     
    Because for real, the only way to stop stuff like this is to suppress the evidence.  The JPED contractor who snooped through my client’s computer wasn’t sorry at all, and she continued to snoop through other wounded Soldier’s computers too.  And she admitted she would remove stuff legal to have, such as horror movies, because in her opinion, they were “gory,” and she would remove “love letters” between spouses if those “letters” (in the current age they are emails) contained foul language, such as “I can’t wait for you to get home so I can F*** your brains out,” or anything that personally offended her she would remove from a Soldier’s computer, and she was going to snoop through every single file, over and over, because she was “just doing her job.”  My client’s case was prior to Kelly’s. 

  16. Zachary D Spilman says:

    Interesting comments so far. Thanks everyone. Particularly The Silver Fox and Frank the Tank for referencing Herring (note also CAAF’s recent struggles with the rule, referenced here), Brian Bouffard for giving us an entertaining (but terrifyingly probable) prediction of the future, and Zeke Kennen for making an important point about the lack of alternative remedy for 4th amendment violations (which are often relatively benign, but certainly need not be and won’t be now that the Government’s shackles are loosened).

    Here’s another point worth considering: Just imagine the scope of litigation invited by this new rule that requires a military judge to balance the relative costs and benefits of enforcing compliance with the 4th Amendment.

    As I wrote above, the new rule requires suppression if:

    exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

    Mil. R. Evid. 311(a)(3) (2016). This requires findings of fact by a military judge, specifically:

    • Will there be deterrence, and if so then in what way? Brian Bouffard’s hypothetical is the extreme example, but another (and perhaps more likely) possibility is that law enforcement distinguishes a particular case on its facts and sees no broader lessen in the exclusion of evidence. After all, these folks are trained (often by the trial counsel; I certainly conducted such training when I was one). So it’s not hard to imagine that some will think that the military judge is the one who erred. 

    • Will the deterrence be appreciable? Not only must there be more than a mere possibility of deterrence, there must be more than actual deterrence. It must be appreciable (whatever that means).

    • Will the deterrence apply to future unlawful searches? For example, will the consequence of suppression (and, perhaps, an unquestionably guilty accused going free) result in changes in investigative policy or mere disciplinary action. Or can the application be more subtle?

    • What are the benefits of deterrence? I’ll tackle this by analogy: The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed.  The Chinese professor thought for a second and asked, ‘Better for whom?'” Alexander Volokh, n Guilty Men, 146 University of Pennsylvania Law Review 173 (1997) (available here).

    What are the costs to the justice system? See the benefits issue, above. Also, is a violation of the 4th Amendment inherently a cost or a benefit?

    As with all factual questions, of course, the parties must present evidence. Lots of evidence [I’m stomping my foot here folks].

    Just imagine how difficult and time-consuming it will be to properly litigate this issue in a garden variety case. Also imagine the possible avenues for a claim of ineffective assistance of counsel in the failure of the defense counsel to develop the record on these factual questions. 

    And then there’s a crucial question of law:

    How should those benefits and costs be weighed? Are all benefits of equal weight? All costs? Is the plight of an unquestionably guilty accused (whose guilt hinges on the unlawfully seized evidence, of course) less weighty than that of an accused with a strong defense? 

    I could go on, but I think you see my point.

  17. Zeke Kennen says:

    I think it’s important to remember that the probability of deterrence is only one factor in the analysis.  The cost to the government of suppression, or the lack of such cost, is equally important.  In Henning, the Supreme Court set the two primary considerations a judge should be looking at when determining the “cost” to the government of suppression:
     

    The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system.

     
    Herring, 555 U.S. at 141.
     
    It seems to me that when a military judge is deciding whether to suppress evidence obtained in violation of the Fourth Amendment, when it comes to weighing the “cost” to the government, he or she should consider 1) the importance of the evidence to the government’s case, and 2) whether the nature of the government’s allegation suggests that the accused is “dangerous.”
    Suppression of evidence that is not crucial to the government’s case, or does not risk freeing a dangerous offender, is not very costly to the government.  If the question is, as the Supreme Court says, whether suppression “pays its way,” Henning, 555 U.S. at 147-148, then even a remote or localized chance at deterrence might be worth the squeeze if it doesn’t cost the government much in the way of being able to prove its case or protect the public from a dangerous offender.  That puts defense counsel in an interesting position – arguing that the violation of the Fourth Amendment warrants relief while simultaneously arguing it doesn’t help the government’s case much anyway…

  18. Frank The Tank says:

    Silver Fox: Please explain how “reasonable mistakes” or negligent violations of the Fourth Amendment are less susceptible to deterrence than willful violations. If the police know what they’re doing is wrong and and they know the consequences but they do it anyway, then how will enforcing those consequences do anything? On the other hand, if someone makes an innocent but careless mistake and there’s no consequence, what’s the point of trying to be less careless the next time? “You can’t deter negligence” is an easy sound bite, but it doesn’t hold up practically. And if it were true, a whole bunch of industries would suddenly be out of business: tort lawyering, traffic copping, good parenting, etc.
    As Zac points out, and as this comment chain demonstrates, the new rule isn’t a rule at all. It’s an echo of a late night freshman dorm room discussion Roberts had long ago and never forgot about. Only it’s worse than that, because now it’s The Law. And now, instead of Freshman Roberts speculating wildly about future events and throwing around grand sounding meaningless mush like “costs to the justice system,” it’s a military judge. In a courtroom near you. Thinking, ‘I wish I’d gone to the law school that offered Advanced Fortune Telling. Sure would’ve come in handy right about now.’

  19. Vulture says:

     Since our professor is still stuck in the ‘qui bono’ question we have not gotten very far.

  20. The Silver Fox says:

    Frank the Tank:  It’s an interesting debate.  I guess the majority’s point is that, when it’s mere negligence, then the harsh sanction of exclusion of evidence isn’t warranted because the costs are so high:  No more evidence, which many times means no prosecution whatsoever–potentially of a murderer or a rapist.  You’re right that exclusion will likely have some deterrent effect even for mere negligence, but unlike a civil court that can calibrate damages based on the degree of culpability and harm, exclusion is binary and thus cannot be proportioned based on the degree of the police’s mistake or misconduct.    
    So, how do you deter police negligence?  Zeke makes a good point that military members very likely don’t have the ability to make a Sec. 1983 claim, so what remedy do they have?  Perhaps this is more an argument against Feres than it is regarding automatic application of the exclusionary rule.  
    Another interesting factor here is that Herrring, like Leon, was decided in the context of a warrant.  In Herring, an arrest warrant had once existed against the accused, but had later been revoked.  A mistake of fact regarding the revoked warrant facilitated Herring’s arrest.  This new rule change appears to be broader than Herring in that it applies to all illegal searches, including those where the government has never obtained a warrant or search authorization.  So, a military court could perhaps find that the exclusionary rule isn’t available under this rule, but the Constitution (as interpreted by the federal courts) nonetheless demands exclusion.    

  21. The Silver Fox says:

    With regard to the other comments regarding Chief Justice Roberts making a soup sandwich out of The Law, it doesn’t appear that the U.S. District Courts have imploded in on themselves since 2009, when Herring was handed down.  As Mr. Spilman has said before here, the sky isn’t falling.  

  22. Frank The Tank says:

    But the new rule requires military judges to determine:
      (1) whether exclusion results [note the present tense] in deterrence of future violations; and
      (2) whether the benefits of such deterrence [in the future] outweigh the [future/present?] “costs” to the justice system.
     
    Isn’t that more of an essay prompt than a rule? I mean, how does that NOT ask military judges to engage in highly subjective, speculative reasoning regarding the occurrence or non-occurrence of future events totally outside their expertise and training?
     
    On the other hand, if all it means is that MRE 311 only applies now to knowing and willful violations of the rule, then:
      (1) Why not just say that? and
      (2) How does that NOT create a perverse incentive in our system to avoid training military law enforcement personnel (many of whom are young enlisted members with relatively little training compared to their federal civilian counterparts) in Fourth Amendment law? Because now there’s no cost to those members being ignorant of the law. Unless, that is, you’re the accused whose Fourth Amendment rights they “negligently” violated.

  23. The Silver Fox says:

    That’s why they get paid the big bucks, man.  And, as a side note, CJ Roberts would have been a way cooler college roommate than Breyer or Souter.  Souter apparently ate only a single apple every day for lunch, including the core.  Weird.

  24. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.]
    I have been enjoying the excellent discussion of Executive Order 13730’s effects on the military justice system’s exclusionary rule.  For now, let me offer a couple of minor observations.  The Supreme Court’s statements in Herring v. United States, 555 U.S. 136, 141 (2009) (internal punctuation omitted), that for the exclusionary rule “applies only where it results in appreciable deterrence'” and that for the rule to apply, “the benefits of deterrence must outweigh the costs,” are better labeled ratio decidendi than dicta.  Note that the Court offered those points as “important principles that constrain application of the exclusionary rule.”  Id. at 140.  The Court similarly observed, as an important constraining principle, that “[t]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.  The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system.”  Id. at 141 (extensive internal citations and punctuation omitted).
    These principles meet the Black’s Law Dictionary definition of ratio decidendi:  “The principle or rule of law on which a court’s decision is founded.”  Black’s Law Dictionary 1376 (9th ed. 2009).  Significantly, unlike dicta, ratio decidendi constitutes binding precedent.  See, e.g., Austin v. Wilkinson, 502 F. Supp. 2d 660, 671 (N.D. Ohio 2006) (“Through the principle of stare decisis, ratio decidendi (unlike orbiter dicta) constitutes binding precedent on lower courts.”).
    Regarding the parlor game of how the case would likely be decided today, note that four of the justices in the Herring majority remain on the court.  Thus, contrary to an observation above, Chief Justice Roberts’ opinion wouldn’t likely be a dissent today.  Rather, even setting aside whether either of the remaining two dissenting Justices would now follow Herring’s ratio decidendi under the doctrine of stare decisis, Chief Justice Roberts’ opinion would likely remain either a majority opinion or a non-precedent-setting decision of an evenly-divided court.

  25. Vulture says:

    Scholarship Saturday!!!  Alright!!!

  26. Zeke Kennen says:

    Very interesting discussion.  If I’m understanding the positions, The Silver Fox argues that the Supreme Court’s curtailment of the exclusionary rule in Herring v. U.S., 555 US 136, 141 (2009) can be read as only applying to that narrow class of cases where there was once a valid warrant, but then that warrant either expired or the officers involved innocently exceeded its scope.  I’m not attributing that position to The Silver Fox, but it seems like he’s saying that is a reasonable reading of Herring.  Mr. Sullivan seems to disagree, and read Herring as offering a “ratio decidendi” that constitutes binding precedent and applies to the remedy of exclusion in any case, regardless of whether a valid warrant ever existed.  Federal district courts seem to agree with The Silver Fox’s distinction – see U.S. v. Levin, 2016 U.S. Dist. LEXIS 52907, at *35 n.22 (D. Mass. April 20, 2016) (“As no valid warrant was ever issued here, and the government does not argue an exception to the warrant requirement applies, exclusion is appropriate.  Herring, too, is distinguishable.  There, law enforcement officers executed a warrant which had been rescinded.  The Supreme Court held that . . . the good faith exception to the exclusionary rule applied.  Although that case makes much of the connection between the exclusionary rule and the goal of deterrence and culpability of law enforcement . . . it says nothing about whether the same calculus ought to apply where there was never jurisdiction to issue a valid warrant in the first place.”)If the Silver Fox and the Massachusetts district court are correct, Herring only requires a federal trial judge to engage in “balancing” in cases where a warrant once existed but the police action does not fall within that warrant.  In contrast, the MRE seems to be much less protective of the defendant, and instead contains a universal rule that the remedy of exclusion, regardless of whether a valid warrant ever existed, requires a military judge to first employ a balancing test to determine whether the value of deterrence, if any, outweighs the risk of harm to the government, if any.    That, if true, is a substantial loss of liberty for military accused.  Now, unlike their civilian counterparts, they can neither sue the federal government for failing to obtain a warrant nor get the warrant-less evidence suppressed.  This all in a jurisdiction that has historically been quite concerned with the danger of heavy-handed commanders.  The last refuge of the Fourth Amendment in the military appears to be Article 98 prosecutions.  It seems likely that’s no refuge at all.

  27. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.]  I’ll probably have more to say about this later because (perhaps sadly) engaging in what is (apart from my own contributions, the merits of which I’ll depend on others to assess) an excellent discussion of the exclusionary rule such as this strikes me as a fun way to spend part of a Memorial Day weekend.  But my initial response to Zeke is that the Supreme Court has subsequently applied Herring in a case involving a warrantless search of a vehicle:
    The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. E.g., Herring, supra, at 141, and n. 2; United States v. Leon, 468 U.S. 897, 909, 921, n. 22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly . . . unwarranted.” Janis, supra, at 454.
     
    Davis v. United States, 564 U.S. 229, 236-37 (2011).  Also, please note the Davis majority opinion’s use of the word “held.”  Perhaps I undersold Herring’s discussion of the purposes for which the exclusionary rule may be applied when I described it as ratio decidendi.
     
    Also, regarding the parlor game of whether Herring would be decided in the same manner today, please note that Justice Kagan joined Justice Alito’s opinion of the Court in Davis and that Justice Sotomayor’s separate opinion concurrring in the judgment begins with:  “Under our precedents, the primary purpose of the exclusionary rule is ‘to deter future Fourth Amendment violations,'” citing, inter alia, Herring in support.  Davis, 564 U.S. at 250 (Sotomayor, J., concurring in the judgment).  That same paragraph concludes, “I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition.”

  28. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.] 
    Please allow me to add one follow-on thought for now.  Zeke contends that Executive Order 13730’s amendment of Mil. R. Evid. 311 “is a substantial loss of liberty for military accused.”  If so, that loss of liberty for the military accused arises only to the extent that the revision results in the admission of relevant and material evidence that inculpates the accused.  In other words, the negative consequence to the accused is a product of enlargement the amount of probative evidence that is admitted — something which I am sure we would all agree is a positive thing in the abstract.  (That also represents one of several important distinctions between the search and seizure exclusionary rule on the one hand and the self-incrimination exclusionary rule on the other.  The self-incrimination exclusionary rule often has a nexus to concerns about reliability of an admission; the search and seizure exclusionary rule, on the other hand, acts almost invariably to exclude reliable evidence.  Another salient difference in the military justice system, of course, is that our self-incrimination exclusionary rule is largely a creature of statute.)
    Note that in Herring, the Supreme Court observed that “the exclusionary rule is not an individual right.”  Herring v. United States, 555 U.S. 135, 141 (2009).  It isn’t the accused’s liberty interest the rule is designed to protect — rather, it is the broader society’s liberty interest.  And there is no protection of that liberty interest where the rule would not deter impermissible law enforcement conduct.
    One of the central problems with the pre-amendment version of Mil. R. Evid. 311 is that it, if applied in accordance with its plain language, it automatically required the exclusion of evidence in myriad scenarios where law enforcement agents acted reasonably and where there would have been no societal gain from exclusion.  As revised, Mil. R. Evid. 311 gives military judges discretion to apply the rule in a more nuanced fashion.

  29. Zeke Kennen says:

    Mr. Sullivan said:

    Zeke contends that Executive Order 13730’s amendment of Mil. R. Evid. 311 “is a substantial loss of liberty for military accused.”  If so, that loss of liberty for the military accused arises only to the extent that the revision results in the admission of relevant and material evidence that inculpates the accused. 
     

    I contend that the accused has lost liberty if he or she has suffered a Fourth Amendment violation for which there is no remedy.  I don’t contend that the only “negative consequence” to the accused is the admission of relevant and material evidence which inculpates him.  The federal government long ago made itself immune to civil liability for illegally searching or seizing property from a military accused.  It has now make itself immune to procedural liability as well.  The only remaining means of giving the Fourth Amendment any teeth at all in the military jurisdiction is to prefer charges against law enforcement officers or command agents who violate the rights of an accused.  I see that as a toothless proposition.  Without any civil, procedural, or criminal teeth to see it enforced, the Fourth Amendment seems a dead letter in the military jurisdiction.  That’s a loss of liberty for all of us subject to the Code.

  30. Zeke Kennen says:

    Before, when a JAG trained law enforcement or command personnel about the need to obtain search authorization before rummaging through the personal effects or premises of an accused, he or she was already quite limited in the rationale for compliance they could offer them.  A civilian lawyer advising civilian law enforcement agency officials could tell those officials that they should comply because they could be subject to personal civil liability if they did not.  That rationale is not available to a JAG advising military law enforcement or command authorities.  Instead, JAGs have been forced to fall back on a significantly weaker rationale for respecting the Fourth Amendment: judges would not allow evidence obtained through illegal searches to be admitted at trial, so why not just do things the right way?  Now, because of this MRE change, that already-weak rationale for compliance is significantly weaker.  Only the most egregious violations will result in suppression, and even then perhaps only when the government’s “costs” are sufficiently low to justify such a disfavored remedy.   
     
    After this MRE change, there is no real reason for a commander or military law enforcement officer to give any heed at all to the Fourth Amendment other than their own sense of patriotic duty.  They’re not subject to civil liability, and now the risk of procedural liability has been practically eviscerated as well.  I suppose there is the threat that a Fourth Amendment violation might make a command or law enforcement agent subject to criminal prosecution under Article 98.  But, since that usually would mean that commanders would have to prosecute their own “well-intentioned” subordinates for violating the rights of a suspected dirt-bag, calling that rationale for compliance “illusory” is probably generous. 
     
     
    What rationale should JAGs use to encourage commanders and military law enforcement agents to care about the Fourth Amendment now?  I’m at a loss.  Are we really just trusting in government officials respect for the rule of law?  When has that ever – in the history of humankind – been a successful strategy for protecting liberty?  A right without a realistic and concrete means of enforcement is non-existent.  

  31. The Silver Fox says:

    Zeke, for the record, I never referred to any language in Herring as dicta.  Frank the Tank did so at the top of this thread, which I believe is what Mr. Sullivan was responding to.  I merely pointed out that a smart defense counsel could argue the EO is broader than the holding of Herring, and thus exclusionary relief may be justified outside of the MRE.  But, as Mr. Sullivan correctly pointed out, the broader MRE language may be justified in toto in light of the court’s later holding in Davis (although I believe this case had to do with the unique issue of retroactive application of Arizona v. Gant, and whether law enforcement officers, relying on pre-Gant SCOTUS precedent, acted reasonably).  

  32. stewie says:

    Gotta agree with Zeke. This newfound concern for reliable evidence being kept out on “technicalities” isn’t quite worthy of a bunch of pretty smart attorneys who should understand and agree with some things that the ordinary Joe might not. We keep out otherwise reliable evidence all of the time for all sorts of good reasons. The Exclusionary Rule has good reasons behind it. It was simple. It was easy to follow. It was easy to understand. It was a fairly bright line.  Now, in the name of we want more convictions we’ve decided to muddy that line, make it harder and more difficult to understand and advocate on and rule on, and make it harder to keep under control those LE personnel who either through negligence or intent or bad training ignore 4th Amendment rights.

  33. Philip Cave says:

    It seems like aeons ago, but I remember a newly minted constable being told by a more experienced officer that, “Son it doesn’t matter so long as we find something,” or words to that effect.  Are we there yet?

  34. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.] 
    We can think if Herring and Davis as establishing a syllogism:
    Major premise:  The exclusionary rule applies only where it will deter future Fourth Amendment violations.
    Minor premise:  In the fact pattern at issue, the exclusionary rule would not deter future Fourth Amendment violations.
    Conclusion:  Therefore, the exclusionary rule does not apply.
    The amended Mil. R. Evid. 311 invites military judges to apply this syllogism in other contexts, just as Herring and Davis do.
    That said, predictions of the exclusionary rule’s demise above will prove greatly exaggerated.  Note that under the amended Mil. R. Evid. 311(d)(5)(A), “the prosecution has the burden of proving by a preponderance of the evidence that the . . . deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.”  That hardly reads the exclusionary rule out of existence.
    Additionally, why would we suppose that providing a windfall is uniquely necessary in a search and seizure context?  Service members are generally precluded from pursuing tort remedies from actions arising from military service.  There are a variety of other enforcement mechanisms, in addition to the notion that military officers will generally attempt to follow the law in a good faith manner.  So, for example, the threat of an IG investigation may constrain some military commanders who might otherwise be tempted to bend the rules. 
    Finally, to Stewie, I certainly hope that a concern that reliable evidence generally shouldn’t be excluded isn’t “newfound.”  For example, CAAF has emphasized that “[b]ecause privileges ‘run contrary to a court’s truth-seeking function,’ they are narrowly construed.”  United States v. Jasper, 72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)).  Cases like Jasper, Herring, and Davis share the view that, as a general proposition, the law should allow the admissibility of relevant and reliable evidence, since doing so serves the truthseeking function of a trial.  The amended Mil. R. Evid. 311, similar to Herring and Davis, reflects the view that there is insufficient reason to interfere with that truthseeking function where the government is able to demonstrate by a preponderance of the evidence either that excluding the relevant and reliable evidence isn’t likely to deter future misconduct or that the costs of excluding the evidence would outweigh the advantage accruing from deterrence.

  35. Zachary D Spilman says:

    I’m not with you Dwight Sullivan. You wrote: 

    Note that under the amended Mil. R. Evid. 311(d)(5)(A), “the prosecution has the burden of proving by a preponderance of the evidence that the . . . deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.”  That hardly reads the exclusionary rule out of existence.

    While the prosecution still has the burden to prove admissibility, the new rule provides scant guidance for a military judge to determine what makes deterrence appreciable and how to weigh the costs to the justice system. For instance, as I wondered above, if a violation of the 4th Amendment results in the capture of an evildoer, is that a cost or a benefit?

    You also wrote:

    Additionally, why would we suppose that providing a windfall is uniquely necessary in a search and seizure context? Service members are generally precluded from pursuing tort remedies from actions arising from military service. There are a variety of other enforcement mechanisms, in addition to the notion that military officers will generally attempt to follow the law in a good faith manner.  So, for example, the threat of an IG investigation may constrain some military commanders who might otherwise be tempted to bend the rules. 

    An IG investigation? As a remedy?! That’s a laughable proposition. Honest leaders welcome IG investigations!

    As for officers generally attempting to follow the law in a good faith manner, there was already an exception to the exclusionary rule for good faith reliance on a search authorization. This new rule, however, applies in cases of bad faith.

    The only windfall here is for prosecutors.

  36. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.] 
    Zack’s contention that “[h]onest leaders welcome IG investigations!,” while empirically questionable, isn’t relevant to the point for which the IG investigation observation was offered, which was a discussion about how to constrain those “who might otherwise be tempted to bend the rules.”  Other vehicles such as Article 138 complaints might be added to the list.  And, remember, the deterrence may not arise from the prospect of guilty service members pursuing such remedies; rather, deterrence may result from the possibility that evidence won’t be found and innocent service members will pursue those remedies.  (In fact, there is a body of legal scholarship suggesting that the general public’s Fourth Amendment rights have been unduly constrained because those rights have been judicially developed largely in cases involving the exclusionary rule’s application to the seizure of contraband and inculpatory evidence rather than cases involving Section 1983 or Bivens suits arising from searches that did not find contraband or evidence.  See, e.g., Orin S. Kerr, Fourth Amendment Remedies and Development of the Law:  A Common on Camreta v. Greene and Davis v. United States, 2011 Cato S. Ct. Rev. 237.)
    I don’t view the amended Mil. R. Evid. 311 — or Herring or Davis — as creating any “windfall” for anyone, and certainly not for the prosecutor.  The amendments to Mil. R. Evid. 311 should enlarge the quantum of relevant and reliable evidence admissible at courts-martial.  Both the military and society as a whole benefit from courts-martial fulfilling a truthseeking function.  Enhancing the amount of relevant and reliable evidence that is admissible is thus a benefit to society as a whole, but not an unearned benefit or a benefit of which society is undeserving.
    Finally, I hope we can all agree that, in many scenarios, the pre-amended version of Mil. R. Evid. 311 would have excluded evidence seized in good faith, the Davis scenario being but one example (consistent with Mil. R. Evid. being revised to address the specific fact pattern of Davis and the more general rule recognized by Davis and Herring concerning when the exclusionary rule should be applied).  That’s part of the consequence of having a written rule with limited defined exceptions rather than a common law rule where judges can fashion its application on a case-by-case basis.  As amended, Mil. R. Evid. 311 authorizes military judges to engage in an application of the exclusionary rule on a basis more similar to that of their Article III counterparts.

  37. stewie says:

    Zach and I don’t always fully agree, but when we do, I prefer Dos Equis. Agree 100 percent.
     
    DS, the truthseeking function is but one function of a CM. You, IMO, over-value it in this case. Both the military and society as a whole also benefit from clear, easy to understand rules that attempt to cut down on violations of the 4th Amendment. We had that. Now, not so much. There was no rampant problem of evidence not being admitted. This was a solution in search of a problem. (kinda like many of the sex assault changes).  There was no windfall to the accused with these rules. The number of times I’ve seen evidence actually suppressed is a lot, lot lower than the number of times I’ve seen it admitted. We have other contrary rules, like inevitable discovery, which worked to prevent “windfalls” as well.
     
    Zach is right to laugh at the idea that a 15-6 investigation (or the goodness of commanders) is a realistic/suitable panacea for any lost rights.  Those ALREADY existed prior to the change of rules, such as they are.
     
    Once again, we take a mature, well-developed, well-understood area of law, and in the name (one assumes) of making it easier to get sex assault convictions, we shake it up.

  38. Zachary D Spilman says:

    If truth-seeking (and not protection of the rights of the accused) is the ultimate function of a court-martial, Dwight Sullivan, then why have an exclusionary rule at all? There is certainly plenty of scholarship in favor of its abolition. For example, as I wrote here:

    there are many who would abandon the exclusionary rule in favor some sort of disciplinary consequence for the violator. For instance, in the Spring 2012 edition of the Military Law Review there was an article by Eugene R. Milhizer (President, Dean, and Professor of Law, Ave Maria School of Law) calling for abandonment of the Fourth Amendment exclusionary rule: Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Mil. L. Rev. 211 (2012) (link to article) (link to CAAFlog post discussing article). And the article was given as a speech at the 54th Judges Course at The Judge Advocate Generals School on May 5, 2011. If the judicially-created rule were abolished, the presidentially-prescribed rule would likely also disappear. That would leave only administrative or disciplinary action as a remedy for Government misconduct that violates an individual’s Fourth Amendment rights.

    Moreover, if (as you wrote) “deterrence may result from the possibility that evidence won’t be found and innocent service members will pursue those remedies,” then the exclusionary rule is superfluous!

    My point in this (and with the IG comment), of course, is that self-righteous scofflaws don’t care about the consequences of their actions, and they never will. Just like the clerk who unlawfully refuses to issue a marriage certificate to a same-sex couple, or the prosecutor who hides exculpatory evidence, the agent who conducts an unlawful search is blinded by zealotry. And only a zealot would agree that the ends (obtaining the evidence) justify the means (lawlessness).

    Finally, as for similarities to Article III counterparts, it’s astonishing how that tired refrain is regularly trotted out to justify some deprivation of a military-specific benefit to an accused (this, the corroboration requirement, convening authority clemency, etc.), but never used to grant an accused additional rights (bail, a binding probable cause determination, trial by jury, etc.).

  39. Dwight Sullivan says:

    Stewie contend that “[o]nce again, we take a mature, well-developed, well-understood area of law, and in the name (one assumes) of making it easier to get sex assault convictions, we shake it up.”  Well, no — not in the name of making it easier to get sex assault convictions.  Two overarching principles that are served are enhancing the accuracy of a court-martial’s truthseeking function (which should, after all, be the main point of a criminal trial) and more closely aligning court-martial practice with that of criminal trials in Article III courts.  Adhering to the federal civilian model to the extent practicable isn’t a “tired refrain” — it is a statutory mandate adopted by the body that is constitutionally tasked with making rules for the government and regulation of the land and naval forces.  Congress told the President that the rules of evidence in courts-martial “shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.”  Art. 36(a), UCMJ, 10 U.S.C. §  836(a).  The rules for admitting evidence in courts-martial are now more similar to the rules in United States district court than they were before the Mil. R. Evid. 311 amendment.
    That point also provides part of the answer to Zack’s question, “why have an exclusionary rule at all?”  As long as the exclusionary rule remains in use in criminal trials in United States district courts, then the President is under a statutory mandate to retain the rule in the military justice system unless the President determines that it isn’t practicable to do so.  If the Supreme Court were to ever reject the exclusionary rule entirely, then it seems likely the President would consider whether it is desirable to jettison the rule in toto for the military justice system.  Regarding Zack’s reference to the corroboration rule, Congress expressly directed the President, to the extent he considers practicable, to “modify Rule 304(c) of the Military Rules of Evidence to conform to the rules governing the admissibility of the corroboration of admissions and confessions in the trial of criminal cases in the United States district courts.” Nat’l Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 545, 129 Stat. 726 (2015).
    Zack seems to argue against his own point when he maintains, “My point in this (and with the IG comment), of course, is that self-righteous scofflaws don’t care about the consequences of their actions, and they never will.”  To the extent that is true, then the exclusionary rule has no deterrent effect. 
    Finally, note that Stewie refers to “lost rights,” which is inconsistent with the Supreme Court’s view that the exclusionary rule isn’t an individual right. Herring v. United States, 555 U.S. 135, 141 (2009). 

  40. stewie says:

    Heaven forbid I disagree with the Supreme Court on something. Parsing out 4th Amendment rights as “societal rights” vice individual rights is pretty silly, and no I don’t agree with. And yes, in the name of making it easier to get sex assault convictions. That’s what all of these recent changes are about. There was no one clamoring for fixing the horrors that on rare occasions evidence was excluded because someone’s, oh I’m sorry, “society’s” rights were violated. 
     
    As Zach points out, we only seem interested in aligning with the civilians when it’s against the accused. You ignore/gloss over that fact for good reason, because it’s true and pretty much indisputable. You can disabuse of that notion by pointing out some areas where we should track more closely to Article III courts that FAVOR an accused.
     
    You have made a more accurate statement by saying that two principles are served.  But the overarching principle is about sex assault, and getting more convictions for same. And none of those principles are the only principle, and once again the balance is shifted in one direction, the same direction it’s been shifting in since 2007. At what point does the shift become too much for you?
     
    Zach’s point (as well as mine) about the exlusionary rule was that we have that rule because truthseeking isn’t the only function of a court-martial or any trial. It’s why we don’t force the accused to testify. Or spouses. There are multiple competing functions and principles at play.
     
    The exclusionary rule does have an effect on scofflaws…if what you are doing is going to end up to no effect, then why do it? 

  41. The Silver Fox says:

    You’re all such excellent criminal defense attorneys, I doubt you need to worry about excluding evidence of guilt.  The persuasiveness of your arguments ought to be able to carry the day.  Especially if all the clients you represent are innocent, as many of you claim.           

  42. Dew_Process says:

    Interesting discussion and for another resource if you haven’t ever used it, check out John Wesley Hall’s blog, FourthAmendment.com Here.

  43. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.] 
    Stewie’s arguments have now been reduced to their essence:  (1) he disagrees with the Supreme Court; (2) pointing out that a portion of a Supreme Court majority opinion inconsistent with a point Stewie previously made is “pretty silly”; and (3) a particular revision of the MCM was made not because it was consistent with DoD Directive 5500.17 for the JSC to recommend the change and consistent with Article 36(a), UCMJ, 10 U.S.C. §  836(a), for the President to adopt it, but rather — based on nothing but Stewie’s ipse dixit — to make “it easier to get sex assault convictions.”  I think we have reached the point where further discussion wouldn’t be productive.  So I’m off to dinner.  Out.

  44. Zachary D Spilman says:

    You emphasize the Supreme Court’s view that the exclusionary rule is not an individual right but rather serves only a deterrent purpose, Dwight Sullivan. And indeed that was the decision of the majority in Herring. But it was the thinnest of majorities; one that (with the death of Justice Scalia) does not exist today. 

    Writing for the four justices who dissented, however, Justice Ginsburg saw other important purposes in the rule:

    The exclusionary rule is “a remedy necessary to ensure that” the Fourth Amendment’s prohibitions “are observed in fact.” The rule’s service as an essential auxiliary to the Amendment earlier inclined the Court to hold the two inseparable. 

    Beyond doubt, a main objective of the rule “is to deter— to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” But the rule also serves other important purposes: It “enabl[es] the judiciary to avoid the taint of partnership in official lawlessness,” and it “assur[es] the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”

    The exclusionary rule, it bears emphasis, is often the only remedy effective to redress a Fourth Amendment violation. Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry. 

    Herring v. United States, 555 U.S. 135, 152-153 (2009) (Ginsburg, J. dissenting) (citations omitted) (marks in original) (emphasis added). 

    The exclusionary rule is thus, in the minds of many jurists, about more than deterrence. And so I – like four-justice minority in Herring – will continue to scoff at the suggestion of civil liability or administrative sanctions as an adequate response to official lawlessness.

    And that’s in the abstract. Among military commanders and their agents one might even expect such official lawlessness to be so repugnant to their oaths that we wouldn’t need to parse the rule so finely because its invocation is so rare. 

  45. stewie says:

    That’s a pretty, well, silly attempt to distill what I’ve said, but let’s break it down.
     
    1/2. you cite a 5-4 decision as somehow the final word on things, when as we all know, those are the very types of decisions most likely to be overturned once the makeup of the court changes (there’s an election and an opening after all). If it were a 7-2 or heck a 6-3 decision that would be one thing. If it were a decades-long decision that has stood the test of time, that would be one thing. It’s neither. So yes, much like many folks do with many 5-4 decisions they disagree with, I find the majority basis not compelling and in this case, yes the idea that the exclusionary rule has no basis in protecting fourth amendment rights but instead societal rights (I thought society wanted wrongdoers punished and “truth-seeking?”) is to me silly.
     
    3. You appear to think rule changes are made in a vacuum, unencumbered by the politics of the time. That’s interesting considering the rules are made by…politicians.
     
    SF, as usual, snark without at least a tiny bit of substance is pretty pointless. You are the reverse mirror to all the “defense attorneys” you constantly mock on here.

  46. RY says:

    To inject my 2 cents…I long ago learned that trials are only a search for truth in philosophical terms and law school lectures.  In fact, they are a peaceful resolution of a conflict.  If it was a search for truth, then the Government would not both favorable and unfavorable evidence to ensure truth prevails and we wouldn’t have such newfound restrictions on mental health records, for example.  The rules would all favor admissibility of relevant evidence, not the exclusion of evidence that inconveniences the government or a key witness for the government.  Truth would not permit an alleged victim to receive all evidence to compare stories before having to testify.  I could go on and on.  Simply stated, a trial is hardly a search for truth in fact; that’s why we must have protections for the accused, protections that are being wiped away inch by inch, making wrongful convictions easier than ever.

  47. RY says:

    errr…the government would present both favorable and unfavorable evidence…

  48. The Silver Fox says:

    I joke because I love.  Believe it or not but SF was once a very proud defense attorney.  I respect DCs a great deal, just like persecutors (as long as they’re ethical).  I just don’t like dyed in the wool types on either side.  

  49. Zeke Kennen says:

    Mr. Sullivan said:
     

    Two overarching principles that are served are enhancing the accuracy of a court-martial’s truthseeking function (which should, after all, be the main point of a criminal trial) and more closely aligning court-martial practice with that of criminal trials in Article III courts. 

     
    It’s curious that the military jurisdiction is so keen to adopt civilian criminal procedures that aid the government, such as this near-abandonment of the exclusionary rule for Fourth Amendment violations, or the abolition of the constitutionally-required exception to MRE 513 evidence, or the evisceration of convening authority clemency power, or the deconstruction of the Article 32 investigation down to a mere preliminary hearing without a right to discovery.  We’re repeatedly told these recent procedural changes are in aid of the “truth finding” function of courts-martial.  But, where are the efforts to adopt “truth-seeking” procedures that aid the accused? The military jurisdiction has shown no appreciable interest in adopting the traditional criminal procedure that civilian courts have long depended on to ensure accurate verdicts.  Specifically, the military persists in allowing convictions by hand-selected non-unanimous five member juries despite the fact that similar procedures have been flatly rejected in the civilian jurisdiction on grounds that they “lead[] to innacurate factfinding and incorrect application of the common sense of the community to the facts.”  Ballew v. Georgia, 435 U.S. 223, 232  (1978).  If “truth-seeking” is truly the goal of these recent “reforms,” then surely the patent defect of lacking anything resembling a jury in the truth-seeking process should be high on the list of repairs.      Otherwise, this “truth-seeking” mantra sounds a lot like doublespeak.
    Mr. Sullivan also said:
     

    [T]he President is under a statutory mandate to retain the rule in the military justice system unless the President determines that it isn’t practicable to do so.
     

    The President (or, more accurately, those who advised him) had a couple of reasons he could have used to find that the Herring balancing test for Fourth Amendment violations was impracticable in the military jurisdiction.  First, this MRE is more restrictive than the district courts seem to think Herring is.  You don’t have to look far to find an example – just see last month’s district court decision in U.S. v. Levin, 2016 U.S. Dist. LEXIS 52907, at *35 n.22 (D. Mass. April 20, 2016).  Certainly the prudence of waiting for the law to solidify in the civilian jurisdiction before adopting an expansive reading of Herring could have served as a practical reason to delay implementation.  Further, the President could have found that clipping Exclusionary Rule’s wings in the military jurisdiction was impracticable because there is no reasonable alternative means of giving the Fourth Amendment teeth in the military given the Feres bar.  Military members are not similarly situated to civilian defendants – they lack the ability to sue the federal officers or agencies who trespass against them.  They therefore shouldn’t be treated the same for Exclusionary Rule purposes.

  50. Dave Roberts says:

    If the aim truly were to conform military practice with federal courts, then the proper action would be to omit MRE 311 altogether; same goes for the corroboration requirement in MRE 304.  This would make the exclusionary rule as interpreted by Herring and Davis applicable in courts-martial, unencumbered by more executive rule-making.  In such a paradigm, prior CAAF caselaw would retain persuasive authority, but would not necessarily be binding.
    The real problem here is that the new rules create an independent basis of law that supersedes past CAAF precedent, and need not be read in concert with Herring or its federal court progeny.  As some commenters have noted, this has the effect of administratively “locking in” SCOTUS precedent favorable to the Government, while allowing case law ostensibly favorable to an accused (i.e., Elonis, McNeely, Rodriguez) to remain subject to interpretation by military judges and appellate courts.  This may not create an unconstitutional dynamic, but it certainly exacerbates the disparity between a military accused and a similarly situated civilian. 

  51. stewie says:

    except Silve Fox, folks aren’t just being dyed in the wool, they are raising real, legit issues, even if you disagree. Acting like they are being biased and unreasonable is, biased and unreasonable.

  52. NoMan says:

    Whew, got past the spam filter. 
    I’d re-phrase the response to brother Sullivan’s IG argument that brother Spilman raises to say that I cannot see an IG making adverse findings against a commander for over-zealous prosecution tactics that infringed on an accused’s rights–particularly not if the case involved a sexual assault.  While intellectually the threat of an Art. 138 complaint or IG investigation should check a commander’s potential violation of an accused’s rights, I am just not sure if in practice that is a likely outcome.  I cannot say I have any evidence to support this “in practice” observation, but my Spidey-sense of it is that there needs to be other checks on the commander’s investigation.  So based on that incredibly scientific observation I’d have to say that the argument that commander’s aren’t kept in check without the exclusionary rule is probably correct.
    Now here is where I will drive the interweb crazy, even with the revised rule, however, I don’t see military judges suddenly, willy-nilly finding a lack of deterrent effect to the 4th Amendment exclusionary rule.  Military judges in my experience aren’t big on granting 4th amendment violation motions anyway.  If the government’s conduct has sufficiently puckered the MJ’s sphincter to cause them to grant the 4th Amendment motion, I am guessing there won’t be a ton of cases where they’ll say, “no big deal, no harm no foul.”  I could be terribly wrong in the end.  But I think what we’ll see is this portion of the rule comes into play where really heinous crimes are at issue and the offending conduct is relatively minor–sort of a sliding scale of the exclusionary rule (though not quite the sliding scale Chief Justice Roberts envisioned).  That idea that egregiousness of the offense effects suppression is itself, not exactly groundbreaking.  See Jeffrey A. Segal & Benjamin Woodson, Motivated Cognition on the Bench: Does Criminal Egregiousness Influence Judges’ Beliefs About Police Wrongdoing? 23 (April 23, 2014), available at http://isps.yale.edu/sites/default/files/files/segal-woodson.pdf; Andrew J. Wistrich etal., Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?, 93 TEx. L. REv. 855, 893(2015).

  53. Brian Bouffard says:

    I hope there are still lawyers involved in the prosecution of alleged military offenses, including staff judge advocates, who are intellectually troubled at the idea that application of the rules should change based on the “seriousness” of the allegation.  A suppression motion normally takes place at the stage where nothing has yet been proven, so Herring’s language regarding “letting guilty and possibly dangerous defendants go free” should be more accurately stated as “letting people who, in the government’s opinion, are guilty and possibly dangerous go free.”  Well, let’s leave the world of opinion and focus on ironclad fact: this particular defendant hasn’t been found guilty of anything, and indeed is legally presumed to be innocent.  Full stop.  How should that inconvenient truth factor into what passes for this “analysis?”
     
    And how is it that we characterize application of the exclusionary rule as a “windfall” for the defense?  Why do we ignore the fact that getting to use evidence that is obtained illegally is a “windfall” for the government?

  54. Tami a/k/a Princess Leia says:

    The disturbing thing about the new rule is that we already have 3 exceptions to the exclusionary rule:  independent source, inevitable discovery, and good faith.  These 3 exceptions already involve a balancing test that the lawyers already know how to argue and judges already know how to apply.  So what additional purpose could this new rule possibly serve, other than to make it easier for the Government to use unlawfully obtained evidence?  What message does it send, other than “we know you got this evidence unlawfully, but we’ll look the other way because this accused is accused of doing something really bad?”
     
    If the Government does the right thing, the right way, the first time, then they don’t have to worry about the exclusionary rule.  Why not emphasize this point in the MRE?

  55. The Silver Fox says:

    What additional purpose does it serve?  Well, at least four living Supreme Court Justices and the President believe criminals shouldn’t walk free for an honest police mistake.

  56. Tami a/k/a Princess Leia says:

    I totally agree that criminals shouldn’t walk from for an honest police mistake.  But we already have exceptions to the exclusionary rule that cover honest police mistakes.  So why create an exception that will make it easier to admit evidence obtained by dishonest police mistakes, or police “on purposes?”  Who would’ve been OK with Hoffman going to trial, even though the CID agent unlawfully seized his computer after he revoked consent, and there was no PC to support an authorization to search?

  57. The Silver Fox says:

    Negative.  As stated above, the “good faith” exception only applied to the execution of warrants or search authorizations.  Now it can apply to all types of searches.

  58. k fischer says:

    Well, at least four living Supreme Court Justices and the President believe criminals shouldn’t walk free for an honest police mistake.
     

    Doesn’t the good faith exception to the exclusionary rule cover the “honest police mistake” scenario, TSF?
     
    According to my reading, it appears that the defense has the burden of showing that the exclusion of evidence taken in violation of the 4th amendment will (1) result in appreciable deterrence of future unlawful searches or seizures and (2) the benefits of such deterrence outweigh the costs to the justice system.  So, it seems that the benefit of the appreciable deterrence must outweigh the “costs to the justice system.”  To me, that means that if it is a really really bad crime, then the military judge would evaluate the cost of the justice system as higher and could outweigh the appreciable deterrence resulting from the exclusion.  Although, I think it would be better to say what the drafters really meant and change “costs to the justice system” to “costs to society” for letting a guilty person go free.  Of course, the military judge would somehow have to assume that the accused is guilty prior to being found guilty.  And, is this amendment going to allow the appellate courts another way to affirm a trial verdict when law enforcement obtains evidence that is not in good faith, inevitable in its discovery, or found by an independent source?
     
    I’m with Brian Bouffard above in that if the Government is supposed to refrain from conducting illegal searches and seizures, then it would really be a “windfall” to the Government to use inadmissible evidence to obtain a conviction.  Of course, we are getting further and further away from the protections the premise of better that 10 guilty men go free than one innocent man go to jail with each and every change to the UCMJ.  And, still there has been nothing done in the past decade to enhance the accused’s right to a fair trial. 
     
    Why not add this element to the 5th Amendment and give the Defense the burden of convincing the military judge that the exclusion of an unwarned or involuntary confession must have an appreciable deterring effect AND the benefits of such deterrence of an accused’s statement is not outweighed by the costs to the justice system?  Or an entrapment defense?  Or the right to confront a witne……..well, I guess M.R.E. 513 and M.R.E. 412 did a pretty decent job of decimating the 6th Amendment in certain sexual assault cases, so we are too late for that.
     
    It just seems that with each and every change there is an apparent lack of concern for the rights of the falsely accused.

  59. Dwight Sullivan says:

    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and shouldn’t be imputed to anyone or anything else.] 
    I’m going to break my vow of silence to make one factual correction, but I’ll stick to a Sergeant Joe Friday approach.  It was stated above that “it appears that the defense has the burden of showing that the exclusion of evidence taken in violation of the 4th amendment will (1) result in appreciable deterrence of future unlawful searches or seizures and (2) the benefits of such deterrence outweigh the costs to the justice system.”  Actually, the “prosecution has the burden of proving by a preponderance of the evidence . . . that the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.”  Mil. R. Evid. 311(d)(5)(A).

  60. Vulture says:

    I keep waiting for D. Trump to show up on here and say that illegal immigrants have more rights than service men.  I joke because I hope.

  61. Sean S. says:

    Though I have copies of the Executive Order and the changes, does anyone know where or when they will publish the actual updated pages so that I can update my MCM accordingly?

  62. k fischer says:

    Indeed, Sir.  I stand corrected.  Now would somebody be so kind to delete my erroneous rant.

  63. Lieber says:

    Why wait for D. Trump?  It’s obviously true thanks to Article 25.

  64. k fischer says:

    Not so fast.  Why did this have to be so confusing? 
     
    Basically POTUS enumerated all of the exceptions to the exclusionary rule to the 4th amendment at M.R.E. 311(d)(5)(A), yet only enumerated the inverse of the balancing test without any other exceptions in M.R.E. 311(a)(3).  So, it makes it look like the Accused has to (1) bring a motion, (2) establish a privacy interest in the property seized, and (3) establish that the deterrence resulting from excluding the evidence outweighs the costs to the justice system.  POTUS could have left prong (3) out of this part and just put this enumerated exception to the exclusionary rule in the burden of proof section at (d)(5)(A).
     
    So, it makes me wonder if they were attempting to do some sort of burden shifting similar to that contained in the first amendment to Article 120, where the defense had to establish by a preponderance the defense of consent in order to argue it, but then the Government could overcome that by proving beyond a reasonable doubt that the consent did not exist. I remember a comment about that amendment involving 100 monkeys and a typewriter.  I wonder what Judge Don Christensen would make of this Amendment of M.R.E. 311?

  65. Frank The Tank says:

    The point k fischer just raised concerning the confusing placement of the amendment was raised during the public notice and comment process, with the recommendation to at most add a new exception under subsection (b) for “evidence obtained as a result of isolated negligence attenuated from the arrest”–the Herring holding. Even with the broader requirement for the prosecution (apparently) to raise evidence about the occurrence or non-occurrence of future events–“appreciable deterrence” versus “costs to the justice system”–this would seem best placed following the other enumerated exceptions rather than in subsection (a), which is focused on the accused’s burden. Maybe Mr. Sullivan could comment on that decision.

  66. k fischer says:

    Frank,
     
    [Standard disclaimer:  These thoughts are offered purely in my personal capacity and the brilliance contained therein should be exploited by the DoD and Congress to their fullest extent.]
     
    He would have to break his vow of silence a second time.  And coincidentally, since he likes to quote Joe Piscopo who famously said, “I broke my vow of silence once……….once,” we are likely to be absent his wise counsel.  Wait….that’s Joe Friday.  Joe Friday, as in Joe “just the facts” Friday, not Joe “Once….once” Piscopo.  I find it very ironic, extemporaneous, and inconceivable that I mistook Joe Friday for Joe Piscopo.
     
    But, as for the notice and comments section, thanks for pointing that out, FTT.  I’m pretty proud that (1) I came up with that on my own without even reading the notice and comments section, (2) I’m not alone in my confusion, and (3) the lack of the deterring effect of refraining from commenting on my confusion is not outweighed by the lack of costs to this blog, notwithstanding, moreover.

  67. Philip Cave says:

    Like Dew_Process, I love John Wesley Hall’s fourth amendment blog.  He posted the Luke case.  After a lengthy and good discussion of search warrants and such, the court comes to the reason for setting the case for additional briefing and argument.
     
    Despite the apparent breadth of the exclusionary rule, it is not without limitations. Indeed, suppression of evidence should not be a court’s first impulse. Real deterrent value is a necessary condition for exclusion, but it is not a sufficient one. The analysis must also account for the substantial social costs generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. Davis
     
    Whether to exclude in this case is a complicated question. The Court has found that the neither the first warrant, consent, nor plain view authorized the seizure of Defendant’s computer equipment, and that, if only that seizure were at issue, Leon would not save it. But, the Court has also found that Defendant’s consent led to the perfectly permissible observations that law enforcement made during the search that were then relied upon to obtain the second warrant, which was also invalid. But, was law enforcement’s reliance upon those observations and other information when seeking the second warrant sufficient under Leon and following cases to save the search? Do the deterrence benefits of suppression outweigh its heavy costs as required by Herring and Davis?
     
    These are challenging questions, and the arguments presented to the Court thus far do not address all the relevant considerations. The law is complicated as well and may, or may not be, settled. In addition to the cases cited immediately above, the Court believes that a good starting point for counsel is United States v. Fugate, 499 F. App’x 514 (6th Cir. Sept. 7, 2012), which identifies certain relevant guiding Supreme Court and Sixth Circuit decisions. Also potentially helpful are the characteristics identified by Judge Wier in footnote 16 of his Recommended Disposition in United States v. Dawson, No. 5:13-CR-7-DCR-REW, 2013 U.S. Dist. LEXIS 51427, 2013 WL 1332573 (E.D. Ky. Mar. 15, 2013).
     
    United States v. Luke, No. 6:15-CR-10-GFVT-HAI-1, 2016 U.S. Dist. LEXIS 70544, at *66-67 (E.D. Ky. May 31, 2016).
     
    To my question above, I think we are almost there at the law of search and seizure as I understood it in England as I understood it in 1968, when I was first making searches and seizures.