In China they devalue currency. In the U.S. military they devalue your rights? 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial.  Changes to the rules of evidence are included.  It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati.  Basically, a military judge grants suppression when

“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.”

Mil. R. Evid. 311(a)(3) (2016).

The change generated a hearty discussion about evisceration of an accused’s fourth amendment rights, although an observer over the years might wonder why the change took so long to be put in writing.  We know that the underlying principle has been in use in federal courts at least since Herring v. United States, 555 U.S. 135, 152-153 (2009) and Davis.

How might litigation develop the rule.  It seems generally accepted that the burden to show x is on the prosecution, not the defense.  In taking an initial look at how the matter works in federal court, by serendipity I was pointed to United States v. Luke.

Despite the apparent breadth of the exclusionary rule, it is not without limitations. Indeed, suppression of evidence should not be a court’s first impulse. Real deterrent value is a necessary condition for exclusion, but it is not a sufficient one. The analysis must also account for the substantial social costs generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. Davis.

Whether to exclude in this case is a complicated question. The Court has found that the neither the first warrant, consent, nor plain view authorized the seizure of Defendant’s computer equipment, and that, if only that seizure were at issue, Leon would not save it. But, the Court has also found that Defendant’s consent led to the perfectly permissible observations that law enforcement made during the search that were then relied upon to obtain the second warrant, which was also invalid. But, was law enforcement’s reliance upon those observations and other information when seeking the second warrant sufficient underLeon and following cases to save the search? Do the deterrence benefits of suppression outweigh its heavy costs as required by Herring and Davis?

These are challenging questions, and the arguments presented to the Court thus far do not address all the relevant considerations. The law is complicated as well and may, or may not be, settled. In addition to the cases cited immediately above, the Court believes that a good starting point for counsel is United States v. Fugate, 499 F. App’x 514 (6th Cir. Sept. 7, 2012), which identifies certain relevant guiding Supreme Court and Sixth Circuit decisions. Also potentially helpful are the characteristics identified by Judge Wier in footnote 16 of his Recommended Disposition in United States v. Dawson, No. 5:13-CR-7-DCR-REW, 2013 U.S. Dist. LEXIS 51427, 2013 WL 1332573 (E.D. Ky. Mar. 15, 2013).

United States v. Luke, No. 6:15-CR-10-GFVT-HAI-1, 2016 U.S. Dist. LEXIS 70544, at *66-67 (E.D. Ky. May 31, 2016).

In the second development from thepicture of court seal

the Courtissued a unanimous decision in United States v. Evans, __ M.J. __ (C.A.A.F. 2016), a case affecting UCMJ art. 31(b) rights.  The court cleared up some confusion on which test an appellate court should apply to challenges to confessions.

violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation. This dichotomy then leads us to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in Kerr; and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the “harmless beyond a reasonable doubt” standard, as was done in United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006).

And to be clear, the court tells us that, “any precedent to the contrary is hereby abrogated.” Slip op. at 7.

Your military defense counsel will in the future have to keep in mind that the courts of criminal appeals (CCA) will apply the following test to determine whether the admission of in violation purely of UCMJ art. 31(b) is harmless. This is a lower and less stringent test than the harmless beyond reasonable doubt test for a constitutional violation.  When we talk constitutional violation we are talking Fifth Amendment issues such as a coerced confession or one where there has been no Miranda advice.  The CCA will ask:

  • What is the strength of the government’s case,
  • what is the strength of the defense case,
  • what is the materiality of the evidence in question, and
  • what is the quality of the evidence in question.

The test is based on United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

Your military defense lawyer will aid your case on appeal if there is evidence and argument about the four factors listed above.  This is basic considerations of issue preservation that any good trial military defense lawyer can address, to aid your military appellate lawyer.

So, is military law devaluing a military members rights, or is the law adjusting to reality–almost a no harm-no foul approach?  Perhaps the reality argument applies best to how an invalid search will be treated.  It remains to be seen whether the new Rule 311 addition will affect the current parsimony of trial judges in granting suppress of evidence seized in a search.

These rules then will apply at the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, and the other Service CCA’s.