Saturday, September 06, 2008

New Mil. R. Evid. 412 article

The Army JAG School has published a new issue of the Military Law Review. Here's a link.

Of greatest interest to those of us who spend most of each day obsessing over military justice is an article critical of Military Rule of Evidence 412. MAJ Shane R. Reeves, Time to Fine-Tune Military Rule of Evidence 412, 196 Mil. L. Rev. 47 (2008). Here's a link to the individual article.

1 comment:

Anonymous said...

Overall, a good article, but:

1) I'm not completely convinced that Congress did not deliberately intend to prevent the prosecution from introducing evidence of a victim's sexual predisposition. The prosecution's interests are never necessarily completely aligned with the interests of a victim of a crim. While balancing the interests of the victim of a nonconsensual sexual offense against the interest of an accused might be constitutionally required, Congress might very well have decided that the prosecution's competing interests -- as a matter of policy -- did not warrant such consideration.

2) The article does not address the unresolved question as to the applicability of 412 to Article 32 hearings. It's clear the rule applies; it is not clear exactly how it does apply. I believe it should apply in the same manner as it does at trial: the IO, in effect, should assume the role of the judge at trial, ordering a closed hearing, reviewing the evidence, and making the appropriate findings and rulings. I believe this view of the rule's applicablility has been adopted by the Navy's Code 20, but it has been far from being uniformly accepted -- and, in my opinion, there is nothing in the rule, its history, or the Manual's analysis which expressly compels such an application.