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. . . .
You can read more about the process at Overview for the Bench, Bar, and Public. The transparency in rule making is shown there.
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.
Punishment for acquitted conduct
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:
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.