New rules, maybe

The Joint Service Committee on Military Justice has proposed new rules for courts-martial, including rules of evidence.  The proposal is open for public comment.

There is much to think about, some good, some possibly bad, and as I note below, some odd.

(d) A new R.C.M. 305(i)(2)(A)(v) is inserted and reads as follows:

“(v) Victim’s right to be reasonably protected from the prisoner. A victim ofan alleged offense committed by the prisoner has the right to be reasonably protected from the prisoner.”

I find this odd.

A “prisoner” as I understand it is a person who has been convicted and sentenced at court-martial.  That person is then confined at  military confinement facility (or federal facility later in their sentence).  Therefore, I’m not sure how this provision is intended to operate?  The military appellate courts have routinely found that how a facility deals with its prisoners is not subject to appellate review, except for limited Eighth Amendment issues.  By extension, I’m uncertain how an R.C.M. can apply.

If it is intended to address issues with those in pretrial confinement awaiting trial, persons who are accused and therefore not prisoners, then the R.C.M. should say so.

And, is not this mere surplusage?  I would note also that the proposed amendment to RCM 806 says the same, unless you go by the title alone.  Scalia and Garner debate the use of the title of a rule or law as to its meaning.  Scalia & Garner, Titles & Heading Canon, Reading the Law, at 221.

new R.C.M. 806(b)(6) is inserted and reads as follows:

“(b)(6) Right of victim to be reasonably protected from the accused. A victim of an alleged offense committed by the accused has the right to be reasonably protected from the accused.”