In a Federal Register notice available here, the Joint Service Committee announces proposed modifications to the Manual for Courts-Martial for 2017 and solicits public comments. Comments are due by January 30, 2017.

Three of the proposed amendments are notable.

First is an amendment to R.C.M. 704(c) (direct link to proposed change) that will allow a convening authority to delegate the power to grant immunity.

Second is a rewrite of R.C.M. 1103A (direct link to proposed change) to prevent appellate defense counsel from reviewing sealed materials not disclosed to the trial participants unless other authority first reviews the materials and determines that they should be disclosed to counsel. Readers will recall that this was an issue pushed by the Air Force Appellate Government Division in a series of cases earlier this year, discussed here and here. The proposed amendment will, in part, remove appellate defense counsel from the definition of reviewing and appellate authorities in R.C.M. 1103A(b)(4)(D)(iv). Such authorities will instead be limited to:

(i) Judge advocates reviewing records pursuant to R.C.M. 1112;

(ii) Officers and attorneys in the office of the Judge Advocate General reviewing records pursuant to R.C.M. 1201(b);

(iii) Appellate judges of the Courts of Criminal Appeals and their professional staffs;

(iv) The judges of the United States Court of Appeals for the Armed Forces and their professional staffs;

(v) The Justices of the United States Supreme Court and their professional staffs; and

(vi) Any other court of competent jurisdiction.

Furthermore, the rule will state:

(ii) Sealed materials reviewed in camera but not released to trial government or defense counsel. Materials reviewed in camera by a military judge, not released to trial government or defense counsel, and subsequently sealed may be examined by reviewing or appellate authorities. After examination of said materials, the reviewing or appellate authority may permit examination by appellate counsel for good cause.

Later in the public notice – in a proposed change to Appendix 21 (the analysis of the rules) – is commentary that this change will “maintain consistency with R.C.M. 701(g)(2), United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998).” Such commentary, however, is awfully hard to reconcile with the fact that R.C.M. 701(g)(2) refers to reviewing authorities that are later defined in R.C.M. 1103A to include appellate defense counsel, and the fact that R.C.M. 1103A was established in 2005 – long after the decisions in Romano and Rivers – in Executive Order No. 13387 (link).

The third notable amendment is to Mil. R. Evid. 311(d)(5)(A) (direct link to proposed change) and clarifies that in the case of a suppression motion implicating the new rule that requires proof that “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” (discussed here), it is the prosecution that has the burden of proof on issue of deterrence:

(b) Mil. R. Evid. 311(d)(5)(A) is amended to read as follows:

(A) In general. When the defense makes an appropriate motion or objection under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been obtained even if the unlawful search or seizure had not been made, that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend or a search warrant or an arrest warrant; that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment; or 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.

4 Responses to “Proposed Amendments to the MCM for 2017”

  1. DCGoneGalt says:

    Well, aren’t you a Chicken Little, RCM 1103A sounds like yet another wonderful nugget of an idea from AF Government Appellate. 

  2. Dwight Sullivan says:

    [Standard Disclaimer:  This comment is offered in my personal capacity and shouldn’t be imputed to anyone or anything else.]  It is important for military justice practitioners to understand that Mil. R. Evid. 311(d)(5)(A) already clearly assigns to the government the burden of proving by a preponderance of the evidence that the deterrence of future unlawful searches and seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.  The proposed change would not alter that language.  Rather, the proposed change would add the words “or on binding precedent” between “”obtained by officials in objectively reasonable reliance on a statute” and “later held violative of the Fourth Amendment.”  In essence, it would update the codified military exclusionary rule to incorporate Davis v. United States, 564 U.S. 229 (2011).

  3. Zachary D Spilman says:

    Dwight’s right. My mistake. I overlooked that EO 13730 (the May 2016 changes) also amended Mil. R. Evid. 311(d)(5)(A).

  4. Matt J says:

    What’s wrong with secret evidence being kept from appellate defense counsel?  Has nobody seen The Star Chamber?  Very efficient!