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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
Cant 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
Doesnt 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 officers 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 persons standing as an officer.
Examples
Preemption doctrine does not apply
Must prove all elements of underlying offense plus
Underlying offense is an LIO
Dont 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-idd 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
Well 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