In advance of a public meeting scheduled for next Wednesday, February 19, 2020, at CAAF, the Joint Service Committee has published these proposed changes to the Manual for Courts-Martial (2019 ed.).

From my initial review, the most significant proposals (with strikeout representing deleted language and underline representing new language) are:

1. Causing all guilty pleas (except for conditional pleas) to waive all waivable motions. Historically, a plea of guilty waived only objections related to the factual issue of guilt. As a result, pretrial agreements (first in the Air Force, then in other services) began to include a provision stating that the agreement waived all waivable motions, and CAAF began enforcing the term in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). The JSC now proposes to make it an inherent part of a plea, with the following modification to R.C.M. 910(j):

(j) Waiver. Except as provided in paragraph (a)(2) of this rule, a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made any non-jurisdictional defect that occurred prior to the plea.

2. Adding a good-faith provision for lost statements under R.C.M. 914. That rule requires production of a witness’s prior statements after the witness testifies on direct examination, and it is the subject of today’s oral argument in United States v. Clark, No. 19-0411/AR (CAAFlog case page). CAAF considered a judicially-created good faith exception for the Jencks Act, 18 U.S.C. § 3500, (which R.C.M. 914 mirrors) in United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page). The JSC proposes to add such an exception into the text of the military rule, with a new subparagraph (e)(2):

(2) Failure to comply in good faith. In the event that the other party cannot comply with this rule because the statement is lost, and can prove, by a preponderance of evidence, that the loss of the witness statement under subsections (a), (b), and (c) of this rule was not attributable to bad faith or gross negligence, the military judge may exercise the sanctions set forth in subsection(e)(l) of this rule if-

(A) evidence is of such central importance to an issue that it is essential to a fair trial,

(B) there is no adequate substitute for such evidence.

3. Allowing special courts-martial to sentence officers to confinement. The Manual for Courts-Martial has long permitted only a general court-martial to sentence an officer to confinement. The current limitation is found in R.C.M. 1003(c)(2)(ii) (“Only a general court-martial may sentence a commissioned or warrant officer or a cadet, or midshipman to confinement.”), while ¶ 126d of the 1951 Manual permitted an officer to be confined only if also sentenced to a dismissal (a sentence that only a general court-martial could adjudge). The JSC proposes to delete the limitation from the MCM.

4. Codification of Perkins and further expansion of the good faith exception for an invalid warrant or search authorization. Mil. R. Evid. 311 codifies the judicially-created good faith exception to the requirement for a search warrant (or authorization, under the UCMJ), where three conditions are met: (1) the warrant/authorization must have been issued by competent authority; (2) the person who issued it must have had a substantial basis to find probable cause for its issuance; and (3) the officials seeking and executing it must have reasonably and with good faith (under an objective standard) relied on it. CAAF rejected a plain-language reading of the second condition in United States v. Perkins, 78 M.J. 381 (C.A.A.F. Apr. 23, 2019) (CAAFlog case page), the #8 Military Justice Story of 2019, and applied the rule in a way that allows searches lacking probable cause in all but the most egregious circumstances. The JSC now proposes to codify CAAF’s decision with respect to the second condition, and to permit even more unlawful searches by relaxing the first condition, with the following additions to Mil. R. Evid. 311(c)(3)(A) and (B):

“(3) Good Faith Exception of a Warrant or Search Authorization: Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an authorization to search, seize, or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority, or the officials seeking and executing the authorization or warrant reasonably and with good faith believed the individual was competent to issue the authorization or warrant;

(B) the officials seeking and executing the authorization or warrant reasonably and with good faith believed that the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

5. Adding a new listed Article 134 offense of Sexual Harassment as ¶ 108, Part IV, MCM. While the services have effectively used Article 92 (orders violation) to prosecute incidents of sexual harassment (see United States v. Rosario, 76 M.J. 114 (C.A.A.F. Feb. 22, 2017) (CAAFlog case page); United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011) (CAAFlog case page)), and have even used Article 93 (maltreatment) in egregious cases (see United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page)), the JSC proposes to add sexual harassment as a listed offense under Article 134, with the following elements:

(1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or engaged in other conduct of a sexual nature;

(2) That such conduct was unwelcome;

(3) That under the circumstances, such conduct:

(a) Would cause a reasonable person to believe, and a certain person does believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits or entitlements;

(b) Would cause a reasonable person to believe, and a certain person does believe, that submission to, or rejection of, such conduct would be used as a basis for career or employment decisions affecting that person; or

(c) Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person does perceive, an intimidating, hostile, or offensive working environment.

and

(4) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces: (ii) was of a nature to bring discredit upon the armed forces: or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

6 Responses to “JSC publishes proposed changes to the MCM for 2020”

  1. stewie says:

    That’s a lot of elements to meet for sexual harassment. Seems like they might have actually made it harder on themselves to prosecute sexual harassment. Having said that, I’m not sure I agree that maltreatment isn’t sufficient for the types of sexual harassment one would think should result in a federal conviction.
    This is not to say I think we should go light on sexual harassment, just that I think administrative separation is going to be a fair resolution for lower level incidents that don’t rise to the level of maltreatment.

  2. 2nd Tour DC says:

    Long time/first time: I’m guessing the draft RCM 913(j) is intended to reduce post-guilty plea appellate litigation (and the attendant delay in finality of convictions).  I suspect the result will be more claims of IAC from Appellate Defense, in order to access the underlying “waived” issues.  It’s also a nail in the coffin of conditional pleas.  Cases will continue contested until at least the 39a if there’s a truly dispositive motion at issue, again delaying prompt resolution (often to the detriment of all parties).  If implemented, the new RCM 913(j) will backfire on its presumptive purpose.

  3. slyjackalope says:

    Not one proposed change that protects the rights of servicemembers.  Big shock!

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

    I’m guessing the GFE proposal is in response to Armendariz as well as Perkins.  Why not just come out and say the military is going to throw out the 4th Amendment when it comes to servicemembers?  This is ridiculous.  Down the slippery slope we go.

  5. Convenient says:

    ” … can prove, by a preponderance of evidence, that the loss of the witness statement under subsections (a), (b), and (c) of this rule was not attributable to bad faith or gross negligence …”
    Personal experience: 32 audio that was bad for the government would often “get deleted”, “lost”, or “not saved correctly.” So, basically, what this does is make the defense have to prove bad faith, because the government will just assert that the loss was because of a technical snafu.
    I’m against incentivizing snafus. 

  6. Charlie Gittins says:

    Can anyone actually recall a change to the MCM that actually either a) was favorable to an accused; or 2) made it more difficult for the prosecution?  It seems to me that all changes address issues that arose because a good defense counsel used the rules to the detriment of the prosecution.  Thereafter, JSC make a change and ipso facto that problem for the G is resolved.    

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