INTRODUCTION TO MILITARY LAW

1. INTRODUCTION TO MILITARY LAW WEEK 7 UCMJ Offenses and the Military Rules of Evidence

2. RECAP • “Military Law” cover full spectrum • Primary areas of difference – Ops and Military Justice • US Supreme Court says military needs its own “criminal” system • Discipline • Global Needs • Constitution Article I plenary grant • Articles of War followed by UCMJ (1950) • Governing rules (Manual for Courts-Martial) executive order of President • Concept of the Commander • Military Jurisdiction • Installation Jurisdiction • UCMJ jurisdiction • Overseas Issues/MEJA

3. This Week … • Punitive Articles • Uniquely military offenses • General Article 134 • Military Rules of Evidence • Relation to Federal Rules • Unique rules

4. UCMJ • Codified at 10 USC 801-946, App 2 of UCMJ • Sets out Crimes and Basic Procedures • Sections I – IX deal with procedures • Apprehension, NJP, Jurisdiction, composition of court, basic trial procedure (charging, statute of limitations, post-trial review, appellate process) • Section X – sets out the punitive articles • Specific Crimes - Similar to Federal/State criminal code • NOT punishments – “may be punished as a court-martial may direct” • RECALL: UCMJ Article 36 & 56 gives PRESIDENT power to set procedures and establish maximum punishments • EO promulgated MREs, RCMs and further explanation of Punitive Articles with maximum punishments

5. Punitive Articles • Articles 77-134 (10 USC 877 – 934) • Each Article (w/exception of 77 & 79) contains • Text of the statute - some contain multiple offenses (Art 128) • Elements of the Offense • Relevant explanation/definitions • Lesser included offenses • Maximum punishment • Sample Specification • Appendix 23 – analysis of punitive articles • Explanation, historical data and some case citations • Primary Categories of Offenses • Criminal Liability and Inchoate offenses • Military Offenses • Offenses against persons • Sex offenses • Property/financial offenses • Crimes against society • Crimes against justice • General Article 134

6. Punitive Articles • Primary Categories of Offenses • Criminal Liability and Inchoate offenses • Military Offenses • Offenses against persons • Sex offenses • Property/financial offenses • Crimes against society • Crimes against justice • General Article 134 • Categories of Punishment (RCM 1003) • Reprimand • Rank (enlisted only) • Punitive Discharge • Money – Fine or forfeiture • Hard Labor without Confinement/Restriction • Confinement • Punitive Separation • Death

7. Articles 77 – 80 • Article 77: Principals • Not a separate chargeable offense – a theory of liability only • Eliminates common law principles and makes all actors liable as a principle • Perpetrator OR “assist, aid, encourage, advise, instigate, counsel, command AND share in the criminal purpose of design” • Presence not required nor sufficient • Withdrawal may excuse • Principals individually liable • Article 79: Accessory after the Fact • Separate Offense • Person who knows someone has committed a crime AND “received, comforted or assists” AND did so for purpose of hindering “apprehension, trial or punishment of offender” • Can’t be both a principal and accessory after the fact

8. Article 79 – Lesser Included Offenses • Not a separate offense • “necessarily included in the offense charged” • Aggravated assault v. simple assault • Robbery v. larceny/assault w/ dangerous weapon • No need to separately charge – charge the greater offense • Punitive Articles provide non-exclusive list • Evolved case law • Article 80 – Attempts • Nothing new – substantial step required • Max punishment = same as for crime attempted

9. Military Offenses • Article 83/84 – Fraudulent enlist/sep • Absence Offenses • Article 85 – Desertion • Specific intent – to permanently stay away • Aggravated forms • To avoid hazardous duty • Terminated by apprehension • Conscientious objector – not a defense • Max Punishment – various levels • DD, total forfeitures, 2 years • Term by apprehension – 3 years • Avoid hazardous duty - 5 years • Time of Ward - Death

10. Absence Offenses • Article 86 – “AWOL” • Covers • Absent without Leave • Failure to go • Leaving without permission • Punishment • Fail to go: 1 month, 2/3 pay for 1 month • AWOL: 6 mos, 2/3 pay for 6 months to DD total forfeiture and 18 months • Article 87 – Missing Movement • Similar offense • Envisions a deployment, troop movement involving substantial distance and substantial time • Punishment (design v. neglect) • DD, TF, 2 years – design • BCD, TF, 1 year - neglect • Article 115 - Malingering • Feigning illness to avoid work/duty; intentional injury • Up to DD, TF, 10 years • Agg by hostile fire zone or in time of war • Cancer/Pregnancy

11. Articles 88, 89, 90 & 91– Superior/Subordinate relationship offenses • Contempt toward officials • President, SecDef, SecAF, etc… • Disrespect toward superior commissioned officer • Disrespect does not have to be in presence • Support of those in command/authority positions • Assaulting/willfully disobeying superior commissioned officer • Aggravated by time of war • Up to DD, TF, 10 years or DEATH • Insubordinate conduct toward NCO • Fraternization is an Article 134 offense • Also chargeable as an Article 92, Failure to obey a lawful regulation

12. Obedience/Failure to Perform • Willfully disobeying superior officer (Article 90) or non-commissioned officer (Art 91) • Art 92 - Violation of a lawful order or regulation • If charging violation of a regulation, the regulation must be punitive • Ignorance of regulation not a defense • Lawfulness is NOT an element of the offense • Question of law for the judge not the members • Order requiring performance of military duty inferred to be lawful - subordinate disobeys at own peril • Doesn’t apply to patently unlawful order such as for the commission of a crime • Orders must pertain to military duty • No drinking orders • No contact orders

13. Article 92 • Dereliction of Duty • Knew or “should have known” • Many sources of duty • Treaty • Statute • Regulation • Lawful Order • Standard procedure • Custom of the service • Willful/neglect or culpable ineffeciency • Up to BCD, TF and 6 mos for willful dereliction

14. Art 133 - Conduct Unbecoming • Elements • Accused did an act • Under the circumstances the act/ommission constituted conduct unbecoming an officer • Personal or private capacity • Dishonors or disgraces person as an officer, seriously compromises the officer’s character • “There are certain moral attributes common to the ideal officer, a lack of which is indicated by acts of dishonest, unfair dealing, indeceny, indecorum, lawlessness, injustice or cruelty. Not everyone is or can be expected to mee unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the conduct of an office cannot fall without seriously compromising the person’s standing as an officer.” • Examples • Preemption doctrine does not apply • Must prove all elements of underlying offense plus • Underlying offense is an LIO • Don’t charge both • Maxmum punishment depends on method of charging

15. Article 134 - The General Article • “Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a [] court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

16. Three clauses • Prejudicial to Good Order and Discipline • Service Discrediting • Crimes and offenses NOT capital • All federal crimes of unlimited geographic application • All federal crimes of limited application if crime occurred within US • State crimes assimilated under the Assimilative Crimes Act, 18 USC 13 • 5 requirements • Clause 1 and 2 have some specifically listed offenses - not inclusive • Examples

17. Preemption - sets an order for charging • UCMJ enumerated offenses must be charged before relying on 134 • Punishments under Article 134 • Analagous UCMJ offense? • Authorized by US Code • Custom of the service

18. Constitutionality of 133 and 134 • History • British predecessors • Law of War • Art 133 of UCMJ in 1950 • Sup Ct Decisions • 1857: Courts-Martial have jurisdiction over such crimes not specified but which have been recognized to be crimes by the usage; what crimes they are and how they are to punished is well known by practical men in the navy • 1886: questions not depending upon statutes but upon unwritten military law or usage within the jurisdiction of courts-martial military officers from their training are knowledgeable and competent • Not void for vagueness - Parker v. Levy (1974); Schlesinger (1975) • Criminality should not attach where one could not reasonably understand the conduct is proscribed • Constitution does not require a regulation or custom of the service be established to support a conviction … prosecution must prove that the officer should have been on notice the conduct was punishable (“notice of criminality”) • Interpretation and narrowing by military courts • Considerable specificity by way of example

19. Other Military Offenses • False Official Statements • Mutiny and Sedition • Dueling • Misbehavior of sentinel/lookout • Abandoning guard/watch • Misbehavior toward the enemy • Subordinate compelling surrender • Aiding the enemy • Misconduct as a prisoner • Spying/espionage • Improper hazarding of a vessel • Drunk on duty • Impersonating a commissioned officer • Incapacitated for duty to to prior overindulgence in alcohol

20. Military Rules of Evidence • Took effect in 1980 • 5 years after Federal Rules enacted by Congress in 1975 • IAW Article 36, UCMJ, giving President authority to apply rules of evidence “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” • Rules cited as MRE • Amendments to MRE take effect 18 months after changes to Fed Rules unless “action to the contrary” is taken by the President (MRE 1002) • Amendments may also come from the Joint Service Committee on Military Justice • Have effect of statutory law BUT conflict with Constitution and/or UCMJ results in failure of the rule • Exception: MRE provides greater rights to the Accused

21. Rules are applicable in all courts-martial • Generally all relevant evidence should be admitted unless some evidence rule, statute or the Constitution require exclusion • Echoes civilian federal law but also reflects unique and critical reasons behind a separate system • Generally similar to Fed rules except sections III (self-incrimination, search and seizure, eye witness id) and V (privileges) • Section III generally affords more rights to subject • Section V lays out specific privileges rather than following common law principles • Trial judge given broad powers to promote fair trial and fair treatment of parties and witnesses • Amended over 13 times since 1980 • 1988 amended to specifically include “rape shield” and prior sexual history provisions

22. General Provisions • MRE 101-106 • Apply in all court-martial • Do not apply to preliminary rulings such as admissibility of evidence • Sentencing – rules may be “relaxed” by defense to allow hearsay and other substitutes for testimony • Rulings on evidence: error harmless unless a “substantial right of a party is affected” • Waiver provisions: failure to make timely objections on evidentiary issues will waive on appeal unless “plain error” • Judge can rule on preliminary matters such as witness qualification, admissibility and privilege issues • Evidence can be admitted for a “limited purpose” • MRE 401 – Evidence must be relevant • MRE 403 balances probative value against danger of unfair prejudice – can exclude despite admissibility and relevance

23. RCM 404 • MRE 404(a) – Follows Fed Rule – Character not admissible to prove accused “acted in conformity therewith” • 404(b) – uncharged misconduct not admissible unless … • US v. Gamble – witness to testify she was previously assaulted by accused • Accused alleged testimony violated MRE 404(a) and (b) • Sole issue at trial was consent • Court finds error • Motions in limine – final ruling and therefore properly preserved appeal • Military law need not follow every aspect of Federal Practice • Good Soldier Defense – evidence of good military character admissible and pertinent to demonstrate accused would not have committed crime • Does not hinge on article violated • Character itself may raise reasonable doubt

24. MRE 501 – 513 (Privileges) • MRE 501 – Basic rule • Privileges required by Constitution (self-incrimination) and generally recognized in Federal Court • Adds 8 specific privileges • No doctor patient privilege • Eight Types • Lawyer-Client • Clergy • Spousal privilege • Classified information • Identity of Informant • Political vote • Deliberation of courts/juries • Psychotherapist • Created by regulation – LPSP and self-id’d drug abusers

25. Exclusionary Provisions • MRE 302: Mental Exams IAW RCM 706 (inquiry into mental capacity of the accused) • MRE 304: Confessions and Admissions • Involuntary statement not admissible • Burden shifting to prosecution to prove voluntariness • Article 31 • MRE 312: Body views and Intrusions • Innovative effort to address 4th Amendment and due process issues • Consensual and non-consensual instrusions • Violation of the rule renders evidence inadmissible – unlawful search • We’ll cover rights and search issues in another class

26. RECAP • Fast Fly-By • Punitive Articles • Uniquely military offenses • Constitutionality of 133 and 134 • Military Rules of Evidence • History • Substance • Unique applications

27. NEXT CLASS – 18 March • Investigations • Area Defense Counsel • Victim Programs