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.
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.