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 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.

Eighth Circuit reviews whether a challenged evidence ruling by the trial court was properly preserved for appeal under FRE 103(b); the issue turned on whether the trial court’s ruling was “tentative” or “definitive”; the objecting party holds the burden to clarify the nature of the ruling, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593).

I have made this point before about objections.  You do an excellent job of making the objection, but did you actually preserve it.  Most judges will give you a direct definitive answer on your objection.  Some however, deliberately or otherwise punt the ruling.  If you get a definitive ruling then the objection is made and preserved.  If you get punted, you MUST make the objection again, or as in Young here, you have to pin the judge down.

The consequences of failing to preserve an evidence issue for appeal can be fatal. Either the issue may be waived or it may be reviewed for plain error under FRE 103(e). Under FRE 103(b), addresses the circumstances in which a party needs to renew an objection at trial: “Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” the application of this rule was recently reviewed by the Eighth Circuit.

Reports regarding an Irish court-martial and litigation involving Lariam are most interesting.  Partly because of a case pending decision in the United States Court of Appeals for the Armed Forces.

The Irish Times reports that:

Taoiseach Enda Kenny has defended the Army’s continued use of the controversial anti-malaria drug Lariam, five years after the US military which pioneered the drug dropped it in the face of health concerns and legal actions from members of the military.

The court martial of a soldier accused of sexual assault this week heard evidence from Dr Ashley Croft, a British specialist in infectious diseases and public health, who said Lariam had been linked to neuropsychiatric disorders including, depression, suicidal tendencies and unusual behaviour, nightmares and psychosis, among other symptoms. . . . The Army private who had claimed he was suffering from the side-effects of Lariam was found guilty on Thursday and has yet to be sentenced.

I’m happy to say that when given Lariam for my Rule of Law teaching trip to Mali in 1996 (which included a visit to Timbuctoo), I suffered no ill effects, but then again, who knows.  :-)

So why the interest beyond any comparative law interest?  CAAF heard oral argument in United States v. MacDonald, No. 14-0001/AR, on Tuesday, May 13, 2014. Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept.  In a prior comment on CAAFLog a colleague characterized the case as CAAF to explore the bounds of possible drug induced psychosis.  At trial he claimed that the drug Chantix affected him at the time of the offense, partly evidenced by, “the FDA issued an “Alert” about Chantix addressing concern of an association between Chantix and serious neuropsychiatric symptoms including “changes in behavior, agitation, depressed mood, suicidal ideation, and attempted and completed suicide.”

The other day I commented about Grostefon issues.  Well, here is another example of Grostefon possibly working for the Appellant.

On Thursday CAAF granted review in the Air Force case of United States v. Yanez:

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

The Appellant in Yanez personally raised the issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The AFCCA opinion is here.

Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, Andrew S. Williams, Brigham Young University, June 5, 2013, 28 BYU Journal of Public Law (April 2014, Forthcoming)


Abstract:      

“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military.

The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries.

Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence.

Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law.

Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions.

If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed Forces.