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
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