INTRODUCTION TO MILITARY LAW

INTRODUCTION TO MILITARY LAW

WEEK 7UCMJ Offenses and the

Military Rules of Evidence

WEEK 7UCMJ Offenses and the

Military Rules of Evidence

RECAPRECAP “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

“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

This Week … This Week …

Punitive ArticlesUniquely military offensesGeneral Article 134

Military Rules of EvidenceRelation to Federal RulesUnique rules

Punitive ArticlesUniquely military offensesGeneral Article 134

Military Rules of EvidenceRelation to Federal RulesUnique rules

UCMJUCMJCodified at 10 USC 801-946, App 2 of UCMJ

Sets out Crimes and Basic ProceduresSections 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 articlesSpecific 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

Codified at 10 USC 801-946, App 2 of UCMJ

Sets out Crimes and Basic ProceduresSections 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 articlesSpecific 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

Punitive ArticlesPunitive 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

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

Punitive ArticlesPunitive 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

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

Articles 77 – 80Articles 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 sufficientWithdrawal 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

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 sufficientWithdrawal 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

Article 79 – Lesser Included OffensesNot a separate offense“necessarily included in the offense charged”

Aggravated assault v. simple assaultRobbery v. larceny/assault w/ dangerous weapon

No need to separately charge – charge the greater offense

Punitive Articles provide non-exclusive listEvolved case law

Article 80 – AttemptsNothing new – substantial step requiredMax punishment = same as for crime attempted

Article 79 – Lesser Included OffensesNot a separate offense“necessarily included in the offense charged”

Aggravated assault v. simple assaultRobbery v. larceny/assault w/ dangerous weapon

No need to separately charge – charge the greater offense

Punitive Articles provide non-exclusive listEvolved case law

Article 80 – AttemptsNothing new – substantial step requiredMax punishment = same as for crime attempted

Military OffensesMilitary OffensesArticle 83/84 – Fraudulent enlist/sep

Absence OffensesArticle 85 – Desertion

Specific intent – to permanently stay awayAggravated forms

To avoid hazardous dutyTerminated by apprehensionConscientious objector – not a defense

Max Punishment – various levelsDD, total forfeitures, 2 yearsTerm by apprehension – 3 yearsAvoid hazardous duty - 5 yearsTime of Ward - Death

Article 83/84 – Fraudulent enlist/sep

Absence OffensesArticle 85 – Desertion

Specific intent – to permanently stay awayAggravated forms

To avoid hazardous dutyTerminated by apprehensionConscientious objector – not a defense

Max Punishment – various levelsDD, total forfeitures, 2 yearsTerm by apprehension – 3 yearsAvoid hazardous duty - 5 yearsTime of Ward - Death

Absence OffensesArticle 86 – “AWOL”

Covers Absent without LeaveFailure to goLeaving without permission

PunishmentFail to go: 1 month, 2/3 pay for 1 monthAWOL: 6 mos, 2/3 pay for 6 months to DD total forfeiture and 18 months

Article 87 – Missing MovementSimilar offenseEnvisions a deployment, troop movement involving substantial distance and substantial time

Punishment (design v. neglect)DD, TF, 2 years – designBCD, 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

Absence OffensesArticle 86 – “AWOL”

Covers Absent without LeaveFailure to goLeaving without permission

PunishmentFail to go: 1 month, 2/3 pay for 1 monthAWOL: 6 mos, 2/3 pay for 6 months to DD total forfeiture and 18 months

Article 87 – Missing MovementSimilar offenseEnvisions a deployment, troop movement involving substantial distance and substantial time

Punishment (design v. neglect)DD, TF, 2 years – designBCD, 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

Articles 88, 89, 90 & 91– Superior/Subordinate relationship offensesContempt toward officials

President, SecDef, SecAF, etc…Disrespect toward superior commissioned officerDisrespect does not have to be in presenceSupport of those in command/authority positions

Assaulting/willfully disobeying superior commissioned officerAggravated by time of warUp to DD, TF, 10 years or DEATH

Insubordinate conduct toward NCOFraternization is an Article 134 offense

Also chargeable as an Article 92, Failure to obey a lawful regulation

Articles 88, 89, 90 & 91– Superior/Subordinate relationship offensesContempt toward officials

President, SecDef, SecAF, etc…Disrespect toward superior commissioned officerDisrespect does not have to be in presenceSupport of those in command/authority positions

Assaulting/willfully disobeying superior commissioned officerAggravated by time of warUp to DD, TF, 10 years or DEATH

Insubordinate conduct toward NCOFraternization is an Article 134 offense

Also chargeable as an Article 92, Failure to obey a lawful regulation

Obedience/Failure to Perform

Obedience/Failure to Perform

Willfully disobeying superior officer (Article 90) or non-commissioned officer (Art 91)

Art 92 - Violation of a lawful order or regulationIf charging violation of a regulation, the regulation must be punitiveIgnorance of regulation not a defense

Lawfulness is NOT an element of the offenseQuestion of law for the judge not the membersOrder 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 dutyNo drinking ordersNo contact orders

Willfully disobeying superior officer (Article 90) or non-commissioned officer (Art 91)

Art 92 - Violation of a lawful order or regulationIf charging violation of a regulation, the regulation must be punitiveIgnorance of regulation not a defense

Lawfulness is NOT an element of the offenseQuestion of law for the judge not the membersOrder 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 dutyNo drinking ordersNo contact orders

Article 92 Dereliction of Duty

Knew or “should have known”Many sources of duty

TreatyStatuteRegulationLawful OrderStandard procedureCustom of the service

Willful/neglect or culpable ineffeciency

Up to BCD, TF and 6 mos for willful dereliction

Article 92 Dereliction of Duty

Knew or “should have known”Many sources of duty

TreatyStatuteRegulationLawful OrderStandard procedureCustom of the service

Willful/neglect or culpable ineffeciency

Up to BCD, TF and 6 mos for willful dereliction

Art 133 - Conduct Unbecoming

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

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

Article 134 - The General Article

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.”

“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.”

Three clausesPrejudicial to Good Order and DisciplineService DiscreditingCrimes 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 135 requirements

Clause 1 and 2 have some specifically listed offenses - not inclusiveExamples

Three clausesPrejudicial to Good Order and DisciplineService DiscreditingCrimes 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 135 requirements

Clause 1 and 2 have some specifically listed offenses - not inclusiveExamples

Preemption - sets an order for chargingUCMJ enumerated offenses must be charged before relying on 134

Punishments under Article 134Analagous UCMJ offense?Authorized by US CodeCustom of the service

Preemption - sets an order for chargingUCMJ enumerated offenses must be charged before relying on 134

Punishments under Article 134Analagous UCMJ offense?Authorized by US CodeCustom of the service

Constitutionality of 133 and 134

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

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

Other Military Offenses

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

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

Military Rules of Evidence

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

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

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

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

General ProvisionsGeneral 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

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

RCM 404RCM 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

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

MRE 501 – 513 (Privileges)

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

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

Exclusionary Provisions

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

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

RECAPRECAP

Fast Fly-ByPunitive Articles

Uniquely military offensesConstitutionality of 133 and 134

Military Rules of EvidenceHistorySubstanceUnique applications

Fast Fly-ByPunitive Articles

Uniquely military offensesConstitutionality of 133 and 134

Military Rules of EvidenceHistorySubstanceUnique applications

NEXT CLASS – 18 MarchNEXT CLASS – 18 March

InvestigationsArea Defense CounselVictim Programs

InvestigationsArea Defense CounselVictim Programs