In a Federal Register notice available here, the Joint Service Committee on Military Justice (JSC) updates the non-binding discussion sections and appendices to the Manual for Courts-Martial to address the recent executive order amending the Manual itself. The notice is another iteration of the positive trend (noted and discussed in detail here) of the JSC publishing these non-binding materials independent of an executive order.

I discussed the recent executive order in this post, where I noted that it made five changes to the Rules for Courts-Martial and the Military Rules of Evidence that are very friendly for prosecutors. The new supplementary materials offer the following commentary on these prosecution-friendly changes:

• 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.

(a) Rule 304(c) is amended by inserting the following at the end:

2016 Amendment: This change brings military practice in line with federal practice. See Opper v. United States, 348 U.S. 84 (1954), and Smithv. United States, 348 U.S. 147 (1954).”

• 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.

(b) Rule 311(a) is amended by inserting the following at the end:

2016 Amendment: Rule 311(a)(3) incorporates the balancing test limiting the application of the exclusionary rule set forth in Herring v. United States, 555 U.S. 135 (2009), where the Supreme Court held that to trigger the exclusionary rule, “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” Id. at 147; see also United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (“The exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs” (internal quotation marks omitted)).”

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

(e) Rule 801(d)(1)(B) is amended by inserting the following immediately before the paragraph beginning with “Under Rule 801(d)(1)(C)”:

“2016 Amendment. Rule 801(d)(1)(B)(ii) was added in accordance with an identical change to Federal Rule of Evidence 801(d)(1)(B). The amendment retains the requirement set forth in Tome v. United States, 513 U.S. 150 (1995): That under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication of improper influence or motive must have been made before the alleged fabrication or improper inference or motive arose. The amendment extends substantive effect to consistent statements that rebut other attacks on a witness—such as the charges of inconsistency or faulty memory. The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.”

(emphasis added)

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

(i) Rule 803(8) is amended by inserting the following at the end:

2016 Amendment: Rule 803(8)(B) was modified following the amendment to Fed. R. Evid. 803(8)(B), effective 1 December 2014. The amendment clarifies that if the proponent has established that the record meets the stated requirements of the exception then the burden is on the opponent to show a lack of trustworthiness as public records have justifiably carried a presumption of reliability. The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. A determination of untrustworthiness necessarily depends on the circumstances.”

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

(d) Rule 907 is amended by inserting the following at the end:

2016 Amendment: R.C.M. 907(b) was amended consistent with United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), where the court held that a defective specification does not constitute structural error or warrant automatic dismissal.”

Notably, on this last change, I think the JSC conflates waiver and forfeiture.

The new rule states that the failure to object to a defective specification prior to adjournment of the court-martial waives the error. It does this by creating a subparagraph (E) under R.C.M. 907(b)(2) for a specification that fails to state an offense; R.C.M. 907(b)(2) identifies waivable grounds for dismissal.

There is a significant difference between waiver and forfeiture. Waiver is the intentional relinquishment of a known right. Forfeiture, however, is merely the failure to preserve an error with a timely objection. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief for a waived error.

Humphries, however, addressed forfeiture, not waiver. The appellant in Humphries simply did not object to the lack of a terminal element in the specification of a violation of Article 134. Judge Ryan’s majority opinion explained that: “Because the law at the time of trial was settled and clearly contrary, it is enough that the error is plain now, and the error was forfeited rather than waived.” United States v. Humphries, 71 M.J. 209, 211 (C.A.A.F. 2012) (CAAFlog case page) (citing United States v. Harcrow, 66 M.J. 154, 156-58 (C.A.A.F.2008) (where the defense repeatedly stated that it had no objection to the evidence at issue)). Neither of the dissenting opinions took exception to Judge Ryan’s application of the plain error test.

The recent change to R.C.M. 907 that makes failure to object to a defective specification a waiver of the error goes far beyond the holding of Humphries. CAAF reversed the Article 134 conviction in Humphries after finding forfeiture, applying the plain error test, and concluding that the prosecution did not cure its failure to properly charge the offense. Under the new rule, however, because failure to object waives the issue of a defective specification, CAAF wouldn’t have even been able to review the issue.

2 Responses to “JSC publishes revised supplementary materials for the MCM”

  1. Zeke Kennen says:

    The JSC’s amendment to RCM 907 doesn’t make Olano any less applicable.  Regardless of the language used in the Manual, appellate courts will continue to use the Olano test to determine whether, on the fact of each case, there has been a waiver as opposed to a forfeiture:

    Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

    U.S. v. Olano, 507 U.S. 725, 733 (1993).
    Applying Olano: The “right at stake” in a defective specification, at least in contested cases, is nothing less than the right to notice of the crime you are charged with under the Fifth and Sixth Amendments.  See U.S. v. Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012).  It seems to me that is a pretty weighty bundle of rights in our society – so much so that under the Olano standard it is doubtful that any appellate court would apply waiver rather than forfeiture to a mere failure to object, regardless of the term used in the Manual.  That’s particularly true given the precedent set in United States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013) (“in light of this Court’s (1) presumption against the waiver of constitutional rights and (2) requirement that a waiver ‘clearly establish[] . . . an intentional relinquishment of a known right or privilege, we consider the alleged error forfeited, and not waived.”)
    If its reference to waiver rather than forfeiture in RCM 907 was not a mere scrivener’s error, then the Executive Branch is tilting at windmills.  Try as it might, it cannot reverse the Supreme Court’s precedent in Olano through mere rule-making.  If an accused is going to waive the right to receive notice of the charges he or she is facing, that’s going to need to be knowing and intentional.  Such a fundamental right is not going to be deemed waived merely because the government was able to “sneak one past” without drawing an objection.  However, whether a defective specification yields any relief on appeal under the prejudice standard set in Humpheries is a separate question altogether.

  2. Dwight Sullivan says:

    [Standard disclaimer:  These comments are offered in my personal capacity only and should not be imputed to anyone or anything else.]:  Please note that Executive Order 13730 doesn’t actually say that failing to move that a specification states an offense waives such an objection.  Rather, R.C.M. 907(b)(2), as amended, states in relevant part:  “(2)  Waivable grounds.  A charge or specification shall be dismissed upon motion by the accused before the final adjournment of the court-martial in the case if:  . . . (E) The specification fails to state an offense.”  There is a significant difference between treating a motion as waivABLE and waivED.  The rule change, consistent with the case law, does only the former.