Friday, August 22, 2008

Improvements to the UCMJ Needed

There is a troubling and potentially dangerous disconnect between the rules, procedures, and penal code sections that exist under the UCMJ, and the creativity and innovation that exists amongst the various states rules, procedures, and penal code sections. We can - - -and should - - -improve our UCMJ, and the practice of criminal law in the miltary, by looking to and learning from criminal law practice in the 50 states. To date, we have rarely looked to state practice.

In the coming months, I plan to suggest improvements to the UCMJ, all of which come actual state practice. My suggestions will cover changes to the evidence rules, the punitive articles, procedural rules, and other related areas. One goal is to stimulate an intelligent dialogue, and inform decisionmakers about what is happening- - -and has been happening- - -in the states. My ultimate goal is to improve the criminal justice system in the military, for victims and defendants alike.

An obvious place to start is in the area of domestic violence and sexual assault cases. I start with the former.

As a former local, state, and federal prosecutor (and military defense and trial counsel), I think it is obvious that our UCMJ is in need of updating and revision. At the outset let me be clear: the UCMJ (to include the MRE's and RCM's) is a remarkable and carefully crafted instrument, and any changes to the UCMJ should only be made after great thought and deliberation. That said, there is much room for improvement.

Typically, it has been the states (not the federal government or the military) that have been at the forefront of advancements in criminal law, evidence code revisions, and the creation of appropriate criminal laws. For many reasons, it takes the federal government years (sometimes) to recognize- - -if ever- - -advances in various states' criminal justice initiatives. Changes to the UCMJ typically occur after the federal government passes new federal rules (under 18 USC or FREs). There are many reasons why the feds lag behind the states in this respect. And there are certainly plausible reasons why the committee that considers changes to the UCMJ - - -the Joint Services Committee, an arm of the DOD General Counsel - - -looks to the feds before recommending changes to the UCMJ.

In some instances, however, that delay is unwarranted. Indeed, it has harmed the administration of justice in the military in some cases. The Joint Services Committee should look at best practices around the country for guidance, not just the federal government.

In 1995 the California legislature passed Evidence Code section 1108, which allowed the prosecution to admit evidence of another sexual offense against the defendant in a sexual assault case (so-called "propensity" evidence). Congress enacted FRE 413 and 414 in 1994, and eventually it was adopted for court-martial in 1996. Fine, that covers sexual assault cases, but what about domestic violence cases?

In 1996, the same California legislature passed a similar provision - - -Evidence Code section 1109 - - -which allowed the admission of evidence that the defendant committed acts of domestic violence in other domestic violence cases. Here is how that rule works in a typical case: defendant assaults victim; victim calls 911; police show up and take statement from crying victim; police document crime scene and take pictures of any injury. A misdemeanor charge of assault is filed. Meanwhile, the victim and defendant reconcile, and the victim recants or refuses to testify. The prosecutors attempt to locate previous wives or ex-girlfriends (or the like) of the defendant, and ask them about any potential violence. At trial, the government calls previous girlfriends of the defendant who the defendant abused. They testify, in detail, about the prior assault. The government also puts on all other evidence of the assault, and puts into evidence the 911 call by the victim. The victim refuses to testify, and the government rests. At closing argument, the government argues that the defendant has a propensity to commit domestic violence in this case, because of the prior victims. Like all cases, the jury convicts sometimes, and acquits in other cases.

Anyone who has spent years actually prosecuting or defending domestic violence cases, sexual assault cases, and sex abuse cases, knows that these propensity rules of admissibility make sense. These defendants are different, and the normal rules underlying the rationale of MRE 404b (excluding propensity evidence ) ignore that reality. Yet, we have no 1109 equivalent in the military. The lack of such a rule has harmed, and continues to harm victims of domestic violence in the military. That needs to change.

Penal Code 591 and 591.5 - - -When I was a Deputy City Attorney in the San Diego City Attorney's Domestic Violence Unit (working for renowned domestic violence prosecution visionary Casey Gwinn), it was quite common to handle cases of simple assault where the accused had (in addition to assaulting the victim) pulled the phone out of the wall or disabled any other communications device to prevent the victim from reporting the crime to law enforcement (or anyone for that matter). Evidence in those cases would often include a 911 call; a crying victim; slight injuries; a house that was torn up, and; a phone cord pulled out of the wall. By the time you got to trial, the victim had recanted and refused to testify. We routinely called previous girlfriends to the stand in our case-in-chief under Evidence Code section 1109. They testified about assaults the defendant committed against them. Often, they brought pictures to court of the abuse inflicted by the defendant. That evidence was powerful. Without it, juries had no idea of the propensity of the accused.

We had another tool, one which we need in the military. California Penal Code section 591 makes it a crime to willfully and maliciously remove, injure, or obstruct a telephone (or any communications device). And, because of the increased use of cell phones by citizens, the California legislature enacted Penal Code section 591.5 in 2003---which makes it a crime to unlawfully and maliciously remove, injure, destroy or damage a cell phone with the intent to prevent the use of the device to summon assistance or notify law enforcement. The result: victims are empowered, and more accused's are held accountable----and get help for their actions. As in many domestic violence simple assault cases, the government loses the simple assault charge, but wins the disabling the communications device charge. And, not surprisingly, those reluctant victims often thank the prosecutor after the conviction. We need similar provisions under the UCMJ.

In the coming weeks and months, I plan to propose other common sense improvements to the UCMJ. I recognize that the aforementioned improvements are California-centric, and prosecution-centric. Over time, however, I plan to propose other improvements drawn from other states, and ones that could easily be characterized as "defense oriented."

The goal is to make our criminal justice system in the military reflect the very best that our Country has to offer. I welcome your thoughts and remarks, and look forward to an intelligent dialogue.


Publius said...

I, too, believe the UCMJ could benefit from a few changes.

I often wonder what the Code Committee does. Like the rest of us, that is probably an extra duty for which no one has a great deal of time. Nevertheless, we have had the problem with charging child pornography ongoing for many years and yet we still have no new article in the UCMJ, nor has the President defined the crime under Article 134. I have no knowledge of the inner workings of the committee or DoD, but when DoD asked Congress to incorporate all of the sex offenses in Article 120, they should have proposed a new article that would define the crime of child pornography in the military.

On the other hand, I understand the slowness with which they proceed on evidentiary matters. Article 36(a) seems to suggest that the President should follow the federal rules unless he has a good reason for not doing so -- as he did with the privilege rules in Section VIII of the Mil. R. Evid.

I look forward to your suggestions and the debate I am sure will ensue.

Publius said...

Make that Section V of the Mil. R. Evid.

Anonymous said...

Cully - I wholeheartedly agree with your assessment. If the drafters of the original UCMJ could look to the criminal laws of Maryland then in effect for guidance in performing their task, I am puzzled as to why the Joint Services Committee would not look to best practices at the state level to guide the development of military crimes and procedural rules which have civilian equivalents. I am also puzzled as to why it often takes the JSC so very long to recognize the need for and recommend updates to the UCMJ. Perhaps structural changes to the process of revising the UCMJ are also a potential improvement we should be discussing?

Old Luce said...

I look forward to having intelligent and exciting discussions on this issue.

Let me be the first to state that certain crimes that occur all too much (e.g. child pornography) should be subjected to a mandatory minimum punishment.

Anonymous said...

Concerning the UCMJ and Art 120, why is that the DOD instruction or the CFR on sex offender registration offenses still is not updated - right now every 120 offense is rape and the 134's that were moved to Art 120 are not broken out - therefore they are either coded as 134's or 120s or not at all - this is not good for the poeople at the brigs who are supposed to code these.

How hard is it to update the CFR/DOD instruction?

Anonymous said...

Somehow I doubt we will see many "defense oriented" suggestions from the man who criticized any attorney willing to represent a terror suspect.

No Man said...


A nice first post, BZ! Question, why is the post titled UCMJ improvements? As you seem to suggest, most of your improvements are MCM improvements? Since they are, I would think you are perfectly placed to write and submit a JSC proposal on these very topics. I have found the JSC very willing to accept such proposals. After one of my proposals I can now take credit for removing something from the MCM, or at least I like to think I was.

I have found the JSC to be very accessible to uniformed lawyers, a little harder for non-JAs to reach out to them. But, the thing about the JSC's changes from year to year is that they just don't have the time to research and implement changes beyond those that the services (read their bosses the JAGs) deem important in a given cycle.

As for changes to the UCMJ, other than eliminating all of these prosecution/government created elements of offenses in the Manual and codifying them, I can't think of anything I want to run to the hill about more the the reform proposed on CAAFlog to appellate review, though I can't say I agree with the entire template proposal.

Gene Fidell said...

Following up on No Man's post, it's critical to distinguish between changes to the statute and changes to the Manual. On the statute, Congress has a free hand so long as the Constitution is not violated, although it is worth some thought how far Congress ought to go in permitting the UCMJ to drift away from federal criminal law. But on the Manual, Congress has already spoken in Art. 36. The lodestar is federal law as applied in the trial of criminal cases in the district courts unless conformity is impracticable. That a state rule of evidence or procedure, for example, is wise, efficient, or desirable for some other reason does not mean it is impracticable to follow the federal rule in courts-martial. I personally would be skeptical of permitting a new Brosman Doctrine ("freer than most") to arise; it was a doubtful enough enterprise for CMA to have pursued, and absent a change in Art. 36 (which I would not favor on policy grounds) I would be equally concerned about seeing it turn up in the work of the JSC. When Cox Commission 2d convenes, which I hope it will before long, perhaps these basic issues will be fodder for discussion.

Cully Stimson said...

Many thanks to Gene, No Man, and Publius for your intelligent and thoughtful comments. This is exactly the type of discussion that I hoped I would generate with my first post. Each of you makes some good points.

Gene and No Man are correct to point out that the initial few improvements I suggested in my post are potential MCM improvements, not UCMJ improvements.

My overall goal in starting this discussion is to improve the delivery of justice in the military justice system. I believe that we have a fair system; fair to the accused, and fair to victims. It is, by no means, perfect. It will (and should) take time to improve the system, and must only be done after careful, thoughtful consideration.

That said, when compared to the federal system, or the state criminal justice systems, our system of justice in the military outshines them in some ways, and falls terribly short in other areas. It is those areas where we fall short that we must improve.

Unless you have actual experience in BOTH the military criminal justice system and the federal and/or state criminal justice system, you may have a difficult time being able to see the flaws in one system or the other. Said differently, if you spend your entire career working within one system of justice, you might not be able to see the flaws in that system, and often don’t know what else is out there. In other words, you don’t know what you don’t know.

As to the JSC comment, from my vantage point, the JSC performs a valuable function in their subordinate role to the DOD General Counsel. They are usually staffed up with some of the brightest military justice minds the services have on active duty. I know that they take their job seriously and very much doubt that they would consider their job on the Committee an “extra duty.” Indeed, as I understand it, the heads of the Criminal Law division of each service is on the Committee.

But fundamental, broad-based improvements across the military criminal justice system will not emanate from any one place, and certainly not from the JSC.