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CAAFlog

Most recent MCM amendments

6/7/2023

 
There has been a question about the most recent amendments to the Manual.

Here is a link to those affecting offenses committed after 26 January 2022.
​These amendments shall take effect as of the date of this order, subject to the following: (a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted. (b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed. ​

Rules changes

12/6/2022

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On December 1, 2022, amendments to the various fede rules took effect. No worries. There are no changes to the rules of evidence that would implicate Mil. R. Evid. 1102.

The manner in which the rules for federal courts are adopted is of interest for the robustness and transparency.
The federal rulemaking process is a detailed process that involves a minimum of seven stages of formal comment and review. . . .
​

The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act. 28 U.S.C. §§ 2071-2077.
​
The Judicial Conference of the United States is also required by statute to "carry on a continuous study of the operation and effect of the general rules of practice and procedure." 28 U.S.C. § 331. As part of this continuing obligation, the Conference is authorized to recommend amendments and additions to the rules to promote:

simplicity in procedure,
fairness in administration,
the just determination of litigation, and
​
the elimination of unjustifiable expense and delay.
You can read more about the process at Overview for the Bench, Bar, and Public. The transparency in rule making is shown there.

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FY 2023 NDAA -- random selection, expanded appellate review, but no unanimity

6/19/2022

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​The SASC Markup of the FY 2023 NDAA would require random selection of court-martial panels and expand appellate review, but does not require unanimous convictions.

Link to summary of Senate mark up here, see page 17.
​
Last week, Senator Gillibrand, Chair of the Subcommittee on Personnel of the Senate Armed Services Committee (SASC), announced that the personnel subcommittee’s markup of the Fiscal Year 2023 National Defense Authorization Act (FY23 NDAA) contains the following provisions relevant to military justice practitioners:
​
The markup amends article 25 of the UCMJ to require the randomized selection of qualified personnel for service on court-martial panels.

The markup amends article 66 of the UCMJ to authorize judicial review of any conviction by court-martial regardless of the sentence imposed.

Markup for Fiscal Year 2023, Hearing Before the Subcomm. on Personnel, 117th Cong. (June 14, 2022) (Statement of Senator Kirsten Gillibrand, Chair), (video link, timestamp 25:25 to 25:43).

Both of those provisions have been adopted by the full SASC.Executive Summary of the FY23 NDAA, Senate Armed Service Committee (June 16, 2022) (link), pp. 17-18.

Notably missing from the subcommittee’s markup is language requiring court-martial panels to be unanimous to convict. Last year, the subcomittee’s markup contained such language, as blog covered here: Scholarship Saturday: The proposal to strip commanders of prosecutorial discretion in all serious cases will be part of the Senate’s version of the 2022 NDAA, but that’s not all (also at archive.org). Last year, the SASC did not adopt the personnel subcommittee’s proposed language requiring unanimity, but it did issue this task to the Department of Defense:

The committee directs the Secretary of Defense to conduct a legal review of Article 52 of the UCMJ, to determine whether that Article is constitutional in light of [the] recent Supreme Court decision [in Ramos v. Louisiana]. The committee directs the Secretary to provide a briefing to the Committees on Armed Services of the Senate and House of Representatives, not later than February 1, 2022, on the results of this legal review and on the feasibility and advisability of revising the UCMJ to require unanimous verdicts to be consistent with Federal and State civilian practices, even if not legally required to do so.

Senate Report 117-39, at 176 (September 22, 2021).

There is no public record concerning whether the Department of Defense complied with that direction.

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Punishment for acquitted conduct

3/29/2022

 
18 U.S.C. § 3661 currently governs sentencing evidence in federal court.

Prof. Berman at Sentencing Law & Policy reports that,
Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:
Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.
Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.
When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”
The version currently before the Senate is here.

A Report by the New York City Bar about the legislation is here.

Will Congress make a similar change in the UCMJ?

Will the President adopt a similar practice in the Manual for Courts-Martial?
    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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