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