As you know, Military Rule of Evidence 1102 provides that,
Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.
So, here is some relevant activity regarding possible changes to the federal rules of evidence.
The Virginia legislature has passed SB1563. There are several provisions which should be adopted in military cases.
D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The notice shall include the witness’s name and contact information, a summary of the witness’s qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.
There is a reciprocal requirement for the defense. The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.
The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. __, No. 16-0267/AR, for the appellant. The issue was:
Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.
A unanimous court found that the military judge erred.
In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.
This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.
Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?
My title is the title of an excellent article in the Air Force Reporter by Thomas G. Becker.
Mr. Becker takes on the amount of damage done to military justice and the truth-seeking process because of the changes to Article 32 proceedings.
The DoD Joint Service Committee on Military Justice (JSC) will hold a public meeting on new proposals.
The notice of the meeting and the proposals can be found at 74 Fed. Reg. 47785.
For those not attending the meeting comments can be submitted in writing
Court-Martial Trial Practice Blog