Over the last few years, the Manual for Courts-Martial has undergone a series of seemingly never-ending changes. This year's installment of changes has been approved.
For the non-lawyers, changes to the Uniform Code of Military Justice occur through Congressional action. The UCMJ is a statute. The President, however, can enact changes to the Manual for Courts-Martial and Rules for Courts-Martial through Executive Order. Usually, changes to the manual include updates to reflect new case law from the appeals courts or changes to the rules to reflect policy goals (e.g. rules for sexual assault cases).
This year's installment has the following major changes that this firm finds important:
Rule for Court-Martial 307 (c) - Requires Article 134 offenses to include specific notice of the alleged terminal element. This is simply a reflection of recent appellate case law. Article 134 offenses are crimes that are prejudicial to good order and discipline or service discrediting. There was a time - not long ago - where prosecutors did not include either of the elements of prejudice to good order and discipline or service discredit in the charge sheet. It was anybody's guess which element they would try and prove. Now they are required to charge the "terminal element."
Rule for Courts-Martial 307 (c)(4) - This rule provides clarification on the distinctions between unreasonable multiplication, multiplicity, and punishment limitations. See our previous discussions on topic here. The short version is that military prosecutors like to charge crimes as many different ways as they can to enhance the possible punishments. It's borderline dishonest, but there are ways to deal with it.
Rule for Courts-Martial 701 and 703 - This rule requires defense lawyers to request victim interviews through the victim's counsel in sexual assault cases. Bottom line - I rarely talk to victims anymore before trial. Here's why: I have a competitive advantage on cross-examination. I've litigated over 100 trials. By the time, we're in court, the alleged victim has never seen me or spoken to me. She has no idea what to expect. It's a philosophy carved out over a decade of experience. In my early days, I would interview an alleged victim before trial and she would know what to expect and modify her story accordingly. I don't need any practice rounds - but she will.
There are a number of other changes. A copy of the Executive Order is below.