Military Rules of Evidence - Military Law - Lecture Slides, Slides of Law

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INTRODUCTION TO MILITARY

LAW

UCMJ Offenses and the Military Rules

of Evidence

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

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

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

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

• 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

• 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

• 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

• 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

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

• 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

• 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

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 Docsity.com

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