This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

The military SVC programs have been ongoing for a little while.  So some signs of the good and bad are starting to show.  It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations.  One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case.  But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting.  The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount.  The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice.  That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations.  The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary.  And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim.  So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything.  The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial.  United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement.  For example, by executive order the President has declared that certain matters may not be bargained away.  R.C.M. 705(c)(1)(B).  An acceptable term is restitution.  As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial.  That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto.  To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that.  Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal.  For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer.  It is far better to enter negotiations informed, rather than have a potential problem on appeal.

No. 14-5007/AF.  U.S. v. Steven S. MORITA.  CCA 37838.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.

You can see an analysis of the case status here.

On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court denied the accused’s motion, and in the process cited to LRM v. Kastenberg, 72 M.J. 364, 358 (C.A.A.F. 2013).

The older the alleged other acts the worse the case for admission of MRE 404(b) matter in my view.

Trial counsel will often seek to admit prior bad acts through MRE 404(b).  The UCMJ does not have rules of evidence in the statute, the rules of evidence are published by the President using his power to make court-martial rules and procedures.  The rules of evidence (current as of 1 Aug. 14) are published in the Manual for Courts-Martial.

As I have routinely cautioned, be alert to and challenge “talismanic incantations” of MRE 404(b) admissibility that merely cites the rule.  You should require the trial counsel to cite which specific exception(s) they rely on, then be precise how the supposed other acts will actually serve to make that or some other critical fact provable.

The prosecution cannot offer prior bad acts just to show, and which merely show, a bad person who may have some predisposition to commit the crime.  United States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002).  This makes sense, profiling and propensity have rarely been a legitimate consideration for trials, except for military sexual assault cases.

Challenging, often through motions in-limine, such evidence should be a stock-in-trade for your military defense lawyer.  Under the UCMJ and Manual for Courts-Martial, as well as the various Army Court of Criminal Appeals rules, a military defense lawyer can file motions in advance of trial.  It is a good idea.  It is better to litigate the issues before the trial counsel prosecutor has a chance to have them mentioned in front of the members (the jury in civilian parlance).

If the evidence fails any of the three tests, it is not admissible.  United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992); United States v. Reynolds, 29 MJ 105, 109 (C.M.A. 1989).  The Reynolds test requires the prosecution show the evidence on the other crime reasonably supports guilt of that other crime (an opportunity for the defense to show how a trial within a trial may occur); that the other crime is supportive of the theory for its admission; and survive a MRE 403 balancing test.  See United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006); United States v. Yammine, (C.A.A.F. 2010).

When it comes to the relevance of a prior bad act it seems to me that a factor must be how close in time to the charged offenses.  If it is a prior bad act of distributing some drugs a few weeks before the alleged offense, then there is a proximity arguing for admission.  However, a distribution many years ago before joining the military is not proximate and should be considered inadmissible.  I do not say such an act is automatically or per se inadmissible.  And that’s the thrust of the court’s decision and analysis in United States v. Wallace, in which the Fifth noted the circuit law that remoteness may weaken probative value, but remoteness has never been held to be a per se bar for admission.  The court also cautioned that there was no per se rule of admission either.

Your military defense lawyer should also be aware that prior acts that resulted in a court-martial AND an acquittal might still be used in a later trial under MRE 404(b).  Read United States v. Tyndal, as an example.  I encourage clients to read along with me on the UCMJ, court-martial, and military sexual assault to be informed about their case.

Back to Reynolds, especially in sexual assault cases, but in all cases when balancing matters under MRE 403, reference to the “Wright factors” is helpful at the trial level and will allow for some deference to the military judge on appeal.  United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)(listing seven non-exclusive factors).  One of the specific factors is – temporal proximity – so it doesn’t just seem, it is.

So, it’s still a contextual analysis of the prior acts and how they may go to prove the current facts, without being more prejudicial than helpful.

Get your military defense lawyer to explain these issues, or if you need a case analysis get in touch with us.

The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ.  Your military defense lawyer should be well versed in this book and these instructions.  The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that.  Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB.  See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002).  On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record.  United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001).  That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members.  For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless.  We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

However, there are times when it is necessary to go outside the MJBB to look for an appropriate instruction.  Usually this happens when the prosecution is seeking to assimilate a federal or civilian crime under Articles 133 or 134, UCMJ.  I have done this, for example by referring to the Eleventh Circuit instructions is CP cases.

So, it is helpful for your military defense lawyer to know that there is a good resource for civilian, primarily federal members (read jury) instructions.  One of my favorite daily reads is the Federal Evidence Review blog. The blog is an excellent resource on federal evidence.  They have two posts relevant to instructions: a main “page,” and an “update” for several circuits.

It appears one of the primary updates is intended to counter a growing problem – social media, cellphones in court, and the like.  Thankfully this does not seem to be a problem at court-martial or other actions under the UCMJ.

The chief judge of the United States Army Trial Judiciary is responsible for publishing and updated the MJBB.  You can find a copy here.  If you are a military defense lawyer and practice at court-martial, you can also download an electronic version which works in MSWord, but unfortunately not WordPerfect.

And to digress a little, there is a presumption that members follow the instructions.  That’s a nice social and legal “policy,” but if research is to be believed the presumption doesn’t work.  Check out an article by one of my favorite resources, The Jury Verdict.  Can members put aside their pride and prejudices?  Can jury members ‘forget’ the inadmissible evidence they just heard?  Can . . . . . .?

New Military Rules of Evidence publication

 The Military Rules of Evidence (MRE) are published by the President in the Manual for Courts-Martial (MCM).  The Army has published a supplement to the current MCM which has all of the MRE and some interpretative matters in one easy to find location.  When the president publishes the MCM he does so under specific Congressional authority to make rules for the governance of courts-martials found in Article 36, UCMJ.  He is required to come as close as possible to the rules found in federal district court prosecutions.  The Manual for Courts-Martial, currently in a 2012, edition sets out the rules of procedure.  You can find a copy at this link (you will also see the 2013 and 2014 amendments).  The President may expand or broaden a rule in favor of an accused.  The President can’t restrict a rule that favors the accused.  This is information your military defense lawyer and attorney must know in order to properly defend you.

A short history of the UCMJ can be found at this Library of Congress link, and a wealth of military law history – especially the development of the UCMJ – can be found here.

Federal district courts follow the Federal Rules of Evidence.  There is an advisory committee on the federal rules of evidence, and most important there is a sort of legislative history and guide to their meaning.  It is good for your military defense lawyer to know this because of how the military rules of evidence become adopted.  The military rules of evidence are initially processed by the DOD Joint Service Committee on Military Justice (see their MJ fact sheets).  What is important here is that under MRE 1102, any amendment to the federal rules sections 1-II, IV, and VI-XI, becomes an amendment to the MRE within 18 months of passage unless the President elects to do something different.  Because of this, your military defense lawyer will know that there may be valuable research in federal district court cases to help interpret and apply a rule in your favor.

One of the rules that tends to follow the federal rule pretty closely is MRE 412, this is the “rape shield” rule that is often an issue in military sexual assault cases.  There is little difference with the federal rule.  But you will not find MRE 313 in the federal rules of evidence.  That rule regulates how the military does health and welfare inspections and similar activity.  Included there is the unit sweep or sampling for drugs.  There are quite a few other rules in Part III of the MRE that address important statutory and constitutional rights that are not found in the federal rules.

How is a military court run – what procedure and rules are followed.  I typically tell people that the procedure and rules of evidence in federal district court are very similar to how a court-martial goes – except for the uniforms.  At my website I have set out the general procedure that is followed from start to finish.

One of the steps in the process is for motions to be litigated.  Motions in limine are an excellent way for your military defense lawyer to try and manage the evidence for or against you.  By filing a motion in limine it might be possible to get an advance ruling that certain evidence cannot be used against you.  That way the members don’t hear the evidence and the objection, and later have to be told to forget it.  The law presumes people will set aside anything the judge tells them not to consider.  But research indicates otherwise.  A robust pre-trial motions practice may be helpful to how your court-martial is prosecuted under the UCMJ rules and procedure.

I always counsel clients and family that there is NO parent-child privilege in courts-martial under the UCMJ (or in civilian court for that matter).  This is important to know and for the military defense lawyer to make clear at the earliest opportunity.  Any communications between a child and the parent can be used in evidence if known.  That doesn’t mean military investigators or military prosecutors can force a parent to disclose information – well except by subpoena as a court-martial witness.  A parent is free to decline to be interviewed if they want. During initial discussions with your military defense lawyer it is always important to discuss the limits to do with privileged communications.  Reading the UCMJ, the Manual for Courts-Martial, and the Military Rules of Evidence, you can get a good basic overview.  Remember, it is always better to discuss specifics with your military law attorney. Rules of evidentiary privilege are found in Rules 501 to 514 of the Military Rules of Evidence (MRE).  The most common privileges you hear about are the attorney-client, the spousal privilege for the accused and for the non-accused spouse, the psychiatrist-patient privilege, and the clergy privilege.  Each of these rules, except for MRE 514 are long-standing and well developed.  The two more recent developments have been the exception where spouses are substantially and jointly involved in (the same) criminal activity, and the addition of the “victim advocate – victim privilege.”  The Court of Appeals for the Armed Forces had rejected the joint crime exception because that was not in the Rule at the time.  See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007).  There is still some ambiguity and perhaps confusion whether there is an exception to a privilege through forfeiture by wrongdoing.  See e.g., United States v. Marchesano, 67 M.J. 535 (A. Ct.Crim. App. 2008), pet. denied 67 M.J. 371 (C.A.A.F. 2009). Under the UCMJ there is no parent-child privilege, nor  is there one in any MRE.  See United States v. Landes, 17 M.J. 1092 (A.F.C.M.R. 1983); United States v. Kelly, ACM 26707, 1988 CMR LEXIS 719 (A.F.C.M.R. September 2, 1988)(unpub.).  And in light of the analysis in Custis, it is unlikely the appellate courts can graft one on.  This is consistent with federal court practice. Recently the Fourth Circuit has ruled that a federal trial judge erred by “adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father[.] In Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933);

 The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: “No federal appellate court has recognized a parent-child privilege, and we decline to do so here.” In particular, the circuit noted that “Doe Jr. has not made a strong showing of need for the parent-child privilege, and ‘reason and experience’ do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501.” Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

Thanks to federalevidence.com for bringing this to our attention. In addition to the Fourth, the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh federal circuits agree.  Federal evidence review blog notes that district courts in Nevada, Connecticut, and Washington do seem to have recognized such a privilege. Regardless, a military accused and his parents should continue to exercise care in what discussions they have about an alleged offense.  There may be a limited way to create privileged communications, but it is not under any sort of parent-child privilege.  But these are matters to be discussed with the military defense lawyer first.

For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder.  In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense.  Because of the court’s resolution of these errors they did not address the remaining five.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside.  Charge II and its sole specification (false official statement) are dismissed with prejudice.  A rehearing on the remaining charges is authorized.”

1.  On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”

2.  The military appellate courts have been taking a hard look at the issue of what is or isn’t a “official statement” for purposes of a UCMJ prosecution at court-martial.  The NMCCA has evaluated the facts in Brown’s case and determined that the circumstances surrounding his alleged false statements were not official.

 While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant.  But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention.  We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.

3.  The more important decision of the court related to errors in the admission of adverse character evidence.  Essentially the prosecution offered and the military judge admitted a number of allegations about Brown’s character that is best described as evidence of predisposition.  Under the circumstances of this case predisposition evidence is inadmissible.

This case illustrates several points.

1.  The defense must be alert and object to efforts by the prosecution to adduce improper character evidence.  In this case the military defense counsel do a decent job at trial at objecting and preserving the issues.

2.  The prosecution has to be careful in seeking to prove guilt by offering inflammatory character information.  When they do that they risk taking a winnable case and making appellate issues.

If you are concerned or unhappy with the high rate of “affirmed” – often without relief – U.S. courts-martials, perhaps you should consider moving to India.

My good friend and colleague Gene Fidell at globalmjreform.blogspot.com/, reports on the 90% rate of reversal of court-martial convictions.

Further to yesterday’s post this article from the Times of India reports that the High Court has set aside decisions of the Armed Forces Tribunal about 90% of the time since the Delhi High Court decided in 2011 that AFT decisions were subject to review in the High Court as well as directly by the Supreme Court.