MJ Reform Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

You get what you ask for — Article 32s

May 1, 2025 | The Law Office of Philip D. Cave

For those who practiced under the “old” Article 32, UCMJ, it was considered an important stage in whether a person would be prosecuted at a general court-martial. Any military defense counsel who practiced before 2020, they would remember what the original Court of Military Appeals (CMA) (the name has since been changed to U.S. Court of Appeals for the Armed Forces (CAAF) said in 1959 (just nine years after the UCMJ was enacted) that the Article 32 investigation “serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.” In addition, the investigating officer was required to be independent and impartial–a quasi judicial actor, as the CMA said in the Reynolds case.

An Article 32 investigation is intended to establish if “probable-cause” exists before a charge can be referred to a court-martial. The “old” Article 32 hearing was an adversarial hearing where the accused could produce evidence, be represented by counsel, could remain silent, give an unsworn statement, or testify, and counsel could cross-examine witnesses.

Some of the benefits for the accused and military defense counsel included:

Defining meaning from words in a statute

September 24, 2023 | The Law Office of Philip D. Cave

Generally

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

Unanimous verdicts Update

September 23, 2023 | The Law Office of Philip D. Cave

In this earlier blog, I commented on the pending litigation over unanimous verdicts at courts-martial. As military defense lawyers we continue to support the advice given that the issue should be raised in all courts going forward.

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

A proposal for a new enumerated Article 134(1)(2) offense

July 4, 2023 | The Law Office of Philip D. Cave

A proposal that a military defense lawyer might face in the future. LtCol Greg Curley, Exploitation. 230 Mil. L. Rev. 421 (2023). The author proposes the adoption of an enumerated offense under UCMJ Art. 134, which he suggests would criminalize “Precursor Behaviors to Sexual Assault.” As part of the offense, he also suggests what most of us would consider a service-connection requirement. He suggests,

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Unanimous verdicts

May 9, 2023 | The Law Office of Philip D. Cave

Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

Another contribution to the discussion of a commander’s authority

July 6, 2020 | The Law Office of Philip D. Cave

Here is a link to Dave Schlueter and Lisa Schenk’s White Paper

AMERICAN MILITARY JUSTICE: RETAINING THE COMMANDER’S AUTHORITY TO ENFORCE DISCIPLINE AND JUSTICE.

[https://www.court-martial-ucmj.com/white-paper-on-military-justice-reforms-2020-w-app/]

UCMJ and MCM changes coming

July 2, 2017 | The Law Office of Philip D. Cave

The DoD Joint Service Committee on Military Justice has some new “publications” on its website. But more importantly, there are a number of proposed changes not yet on their site (but which are available on CAAFLog).

A draft Executive Order indicating an effective date for the MJA of January 1, 2019.
Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed. Of note, are changes to regulate the sealing of all or parts of the record, changes to MRE 311, which adds, “that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment[.]” And,

Military justice news — from Arkansas

January 1, 2017 | The Law Office of Philip D. Cave

Courtesy of the Booneville Democrat we now know that

Several bills . . . are among a number of bill filings this week at the State Capitol in preparation for the 91st General Assembly regular session.

They include:

Thought for the day

May 26, 2016 | The Law Office of Philip D. Cave

My good friend Gene Fidell recently posted this thought:

New York County Surrogate Gideon J. Tucker wrote 150 years ago: “No man’s life, liberty or property are safe while the Legislature is in session.” Here’s a thought about Congress at work in 2016.

His note is in relation to major (and minor) suggestions for change in military justice practice. In his blog post he observes:

Articles Posted in MJ Reform

You get what you ask for — Article 32s

Defining meaning from words in a statute

Unanimous verdicts Update

A proposal for a new enumerated Article 134(1)(2) offense

Unanimous verdicts

Another contribution to the discussion of a commander’s authority

UCMJ and MCM changes coming

More on Marine nude postings-Protecting the Rights of IndiViduals Against Technological Exploitation, or PRIVATE Act

Military justice news — from Arkansas

Thought for the day