Executive Order 13593, signed by the President on Tuesday, and pending publication in the Federal Register tomorrow, makes the following amendments to the Manual for Courts-Martial, effective on 12 January 2012:

• Add langauge to M.R.E. 504 (husband-wife privilege) regarding joint criminal activity
• Remove spouse abuse from the exceptions to the M.R.E. 513 (psychotherapist-patient privilege)
• Create M.R.E. 514 – Victim advocate – victim privilege
• Amend M.R.E. 609 to conform to F.R.E. 609
• Amend the explanation to Article 89 to include uniformed officers of the Public Health Service and the National Oceanic and Atmospheric Administration
• Amend the sample specification for Article 111, Drunken or reckless operation of vehicle, aircraft or vessel
• Make a clerical amendment to the explanation to Article 123
• Enumerate Article 134 offenses of (1) Possessing, receiving, or viewing child pornography, (2) Possessing child pornography with intent to distribute, (3) Distributing child pornography, and (4) Producing child pornography
• Make a clerical amendment to the first paragraph of the Discussion following R.C.M. 1107(d)(1)

The full text of the amendments creating M.R.E. 514 and the 134 offenses involving Child Pornography follow:

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I’ve been watching, with great interest, developments regarding proposed Mil. R. Evid. 514: Victim Advocate – Victim Privilege (see: here and here). Until now, I beleived the proposed Mil. R. Evid. was to be the result of a legislative requirement. Congress, it seems, feels differently.

The conference report on the FY12 NDAA is available here. The following language is found on page 1425 of the pdf:

Privilege in cases arising under Uniform Code of Military Justice against disclosure of communications between sexual assault victims and sexual assault response coordinators, victim advocates, and certain other persons

The House bill contained a provision (sec. 584) that would add a new Article 140a to the Uniform Code of Military Justice establishing a privilege against disclosure of communications between a person who is a victim of a sexual assault and a Sexual Assault Response Coordinator (SARC), a Sexual Assault Victim Advocate, and personnel staffing the Department of Defense (DOD) Safe Helpline or successor operation.

The Senate amendment contained a provision (sec. 564) that would require the President to establish in the Manual for Courts-Martial (MCM) an evidentiary privilege against disclosure of communications to similar effect.

The House and the Senate recede. Neither provision is included in the conference report.

The conferees note that the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval. Additionally, DOD has amended its controlling regulations to ensure that the privilege against disclosure applies to communications with a SARC whenever their duties and responsibilities involve victim advocate functions. Once this change to the MCM is signed and implemented, the conferees believe that it accomplishes the objective of ensuring privileged communications for sexual assault victims.

Without the legislative requirement, I continue to wonder (as I did in this comment) about the notice and comment period for this new rule:

The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here. 

Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

A while back I noted the Federal Register notice of proposed stylistic changes to the Military Rules of Evidence. That notice includes Mil. R. Evid. 514: Victim Advocate – Victim Privilege. I’ve been curious about the genesis of this rule, especially since I could find no notice of proposed rulemaking.

This morning I figured it out. The privilege is (will likely be) required by the 2012 NDAA. While the bill is in conference to work out differences between the House and Senate versions, the privilege appears in both (so I expect it will survive).

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On 19 October 2011 notice of proposed changes to the Military Rules of Evidence (MRE) was published in the Federal Register (links at the bottom of this post).

The proposed changes incorporate the restyled Federal Rules of Evidence (FRE), in accordance with M.R.E. 1102 (which states that changes to the FRE will amend parallel provisions in the MRE). The U.S. Supreme Court approved changes to the FRE in April 2011 (to take effect on 1 December 2011), after a review process that began in 2006. The changes to the FRE are stylistic, meaning they are intended to constitute non-substantive changes.

Besides incorporating changes to the FRE, the proposed changes to the MRE also make additional stylistic changes.

The public is invited to comment on the proposed changes. Comments must be received by the Joint Service Committee on Military Justice no later than 9 December 2011.

Some interesting changes include:

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A compound adjective should be hyphenated, but no hyphen should connect a single adjective with the noun that it modifies.  So “Bad conduct discharge” in the heading to R.C.M. 1003(b)(8)(C) of the 2008 MCM should read “Bad-conduct discharge.”  And the same subsection’s reference to “punishment for bad-conduct” should read “punishment for bad conduct.”

Here’s a link to the MCM amendments that the President approved this week.

[I'm still on the road and because of the way my e-mail is forwarded, I can't tell who sent the amendments to me.  But whoever you are, thanks!]

As indicated here, the President has signed revisions to MCM.  However, I don’t see a link to the actual changes.  Nor could I find them on the Federal Register’s website.  Does anyone have a copy of the changes to the Manual that the President adopted?

h/t Phil Cave’s Court-Martial Trial Practice blog.

Now that we’re at the threshold of complete e-filing at CAAF, can we please drag the military justice system all the way into the 21st Century?

The 2008 edition of the MCM has been out-of-date for two years now.  A couple of our wise readers noted below that the out-of-date MCM appears to have led the Coast Guard Court to err in its published decision in United States v. Sanchez, __ M.J. ___, No. 1320 (C.G. Ct. Crim. App. July 29, 2010).  In a case tried in 2009, the Coast Guard Court held that the SJAR violated R.C.M. 1106(d)(3)’s requirement “to include length and character of service, awards and decorations received, and any records of non-judicial punishment and previous convictions.”  The problem is, as two of our readers noted, the President removed those requirements from R.C.M. 1106(d)(3) in 2008.  Exec. Order No. 13,468 (2008), reprinted at 73 Fed. Reg. 43,827, Annex Section 1 (h).  Those changes took effect 24 August 2008.  If a military appellate court doesn’t know what provisions in the 2008 MCM are no longer in effect, what hope is there for the rest of us?

As we previously noted, when the old three-ring binder version of the MCM was scrapped, DOD intended to issue a new paperback MCM every year.  But the annual Manual plan lasted precisely two years.  Not since 1996 has a new edition of the MCM come out the year following its predecessor.

I recognize that these budgetary times are tough and that printing a new edition of the MCM every year would be expensive.  But there is an alternative that would cost practically nothing.  This is what we suggested in February 2007:

Maybe the concept of publishing an entire new Manual and throwing away the old one is dated. Maybe it was a bad idea even in 1994 when it was originally hatched. But many years ago Al Gore invented this wonderful new device called the Internet. You know, that thing that allows me to post this rant and allows you to read it. Can’t DOD at least post an annual updated version of the MCM, even if it doesn’t want to devote the expense and cause the deforestation necessary to print it?

Sanchez demonstrates that the time for the annual e-Manual has arrived.  Presumably someone in DOD maintains a Microsoft Word copy of the MCM that is then turned into a hard copy.  Why doesn’t that person input the 2008 amendments to the MCM and plug all of the UCMJ amendments into Appendix 2 and then post that up-to-date version of the MCM online?  DOD could then continue to update it with each new MCM revision or UCMJ amendment until a new version is published.  We’d all have access to a current version of the MCM at no cost to DOD.

If anyone out there who is more tech savvy than am I (and if you’ve managed to navigate to this website, you’re almost certainly in that group) can figure out have to input the changes into this electronic copy of the 2008 MCM, let us know and I’ll try to post an updated version of the MCM myself.

As CAAFLog notes below, the new MCM Amendments seek to add an Art. 134 offense for various child pornography related offenses to alleviate the constitutional issues with proving images of child pornography are actual children.  First, I’d like to say that it was nice to see the drafters considered  the unintentional receipt issue–though the drafting reminds me of another provision by creating a burden shifting issue in requiring the defendant to disprove intentional possession. 

But, more importantly, someone please tell me how the definitions of used in the underlying “child pornography” offenses in proposed paragraph 68b. aren’t hopelessly overbroad, namely variants b(1) (“Possessing, receiving, or viewing”) and b(4) (“Producing”)?  Here are the relevant definitions (possession and production are offenses):

“Child Pornography” means any visual depiction of a minor, or  what appears to be a minor, engaging in sexually explicit conduct.

“Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.

“Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.

See 74 Fed. Reg. 47785, 47786 (strangely “viewing” is not defined).  The First Amendment issue was exactly why the child pornography statute was drafted the way it was, i.e. to include only real minors.  The problem of private possession of cartoons and the like was one of the main problems discussed in the original enactment, as even the Fourth Circuit recently acknowledged in U.S. v. Whorley.  As the Fourth Circuit majority stated,

In [Stanley v. Georgia, 394 U.S. 557 (1969)] the Supreme Court held that a Georgia statute prohibiting the possession of obscene matter, even within the home, was incompatible with the First and Fourteenth Amendments. Id. at 568. Finding the statute too broad, the Court explained that “traditional notions of individual liberty” and the paramount importance accorded in our society to the “privacy of a person’s own home” create a “right to be free from state inquiry into the contents of [one’s home] library.” Id. at 565. Thus, the government’s regulatory “power simply does not extend to mere possession [of obscene materials] by the individual in the privacy of his own home.” Id. at 568.

United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), reh’g and reh’g en banc denied, 569 F.3d 211 (4th Cir. 2009).   The justification for the current PROTECT Act prohibition on cartoons and virtual child pornography is the use of interstate commerce to send and receive obscene material.  See id.  Not to mention the fact that the cartoon and virtual image provision itself has been found unconstitutional by at least one US District Court, U.S. v. Handley, 564 F. Supp.2d 996 (S.D. Iowa 2008), though admittedly that represents a minority view.  However, notably the proposed paragraph does not explicitly require that the depictions be obscene, something that even the Fourth Circuit acknowledged was required to prohibit transmission in interstate commerce of cartoon images.

The paragraph could really use something of a re-write to get around these very problems that took Congress years to solve.  A potential solution to the private possession issue might be a requirement that the depictions become public, something akin to Art. 88′s requirement that through “an act of the accused [the pictures] came to the knowledge of a person other than the accused.”   And, addition of the word obscene somewhere in the definition wouldn’t take much work. As for the burden shifting issue, see U.S. v. Neal.

As announced in the Federal Register here, the Joint Services Committee will hold a public hearing on 29 October at 1030 to consider proposed amendments to the Manual for Courts-Martial.  The hearing will be held in the 8th Floor Conference Room, 1501 Wilson Boulevard, Rosslyn, VA 22209-2460. Written comments may be submitted until 16 November.  (Arrgggghhh!  That link to a pdf version of the proposed amendments doesn’t seem to work, even though that is the link to the pdf version on the Federal Register’s web site.  Try this link for an html version.  If neither of those work, try this link and then navigate to the proposed MCM amendments.  If that doesn’t work, try here and then type in 47785 in the field for volume 74 and then navigate to the proposed MCM amendments.)

The topics under consideration include the establishment of an enumerated child pornography offense under Article 134 and the creation of a joint criminal enterprise exception to the military’s marital communications privilege.  The Article 134 child pornography offense would be punishable by up to 10 years’ confinement and a DD for knowingly viewing, possessing, or receiving child pornography.  The sentence for distribution would include up to 20 years’ confinement and the sentence for production would include up to 30 years’ confinement.  The proposed Manual provision includes this explanation:  “It is not a defense to any offense under this paragraph that the minor depicted was not an actual person or did not actually exist.” 

h/t Court-Martial Trial Practice blog

Yesterday’s Federal Register includes the Joint Service Committee’s post-public comment revisions to its 2008 review of the MCM. Here’s a link.

We previously discussed the JSC’s proposed amendments, which included creating an enumerated Article 134 offense specifically covering child pornography. That idea has been shelved, at least for now. As the JSC noted yesterday:

The JSC considered the public comments and, coupled with the United States Court of Appeals for the Armed Forces recently hearing arguments on issues of child pornography with decisions pending, decided to withdraw the proposed addition of a paragraph addressing child pornography under Article 134 in Part IV of the MCM. The child pornography proposal will continue to be considered as part of the 2009 annual review.

The JSC went forward with its other recommendations, which included providing specific guidance concerning the availability of fines in prosecutions of civilians who are subject to UCMJ jurisidiction, revising the rules governing SJARs, and increasing the maximum authorized confinement for manslaughter of someone less than 16 years old.

An alert reader provides us with this link to Executive Order 13468 of July 24, 2008, complete with the actual text of the 2008 MCM amendments.

Thanks to Executive Order 13468, the 2008 edition of the MCM that we waited three years for will become obsolete on 23 August. This raises two questions. First, the obvious one: when will the new version of the MCM — which was supposed to be an annual Manual — be published?

Now for the other question. When woolly mammoths roamed North America and I was a first lieutenant, the Manual for Courts-Martial was a big burgundy three-ringed binder. Every time the President would change the Manual, GPO would print up a bunch of replacement pages and we would remove the old obsolete pages from the three-ringed binder and insert the new pages. In many ways the old-style Manual was awful. The binder’s rings never seemed to line up and pages would constantly tear out. But at least I always had a reasonably up-to-date Manual — unlike modern-day military lawyers who practiced for three years using a 2005 MCM that was already OBE when it was published. So here’s my question: why doesn’t TJAGLCS take a break from launching sophomoric jibes at the Navy and prepare an electronic version of the 2008 MCM that deletes the obsolete provisions and incorporates the new provisions from Executive Order 13468? Wouldn’t that be really helpful to every military justice practitioner? It doesn’t have to be TJAGLCS — I’d be happy if anyone did it. Well, anyone other than whoever designed the new extremely user unfriendly electronic Military Judges’ Benchbook that we can’t get authorization to load onto our office computers.