Are Amendments to the UCMJ “Stacking the Deck” Against the Accused?

Recently I was interviewed by a member of the press about a piece he intends to run concerning amendments to the UCMJ and the military justice system over the past decade and whether or not those changes have “stacked the deck” against the military accused. We initially spoke briefly over the phone and I asked that he send some questions over email so that I could consider them before responding.  A summary of his email is as follows:

You mentioned a change that took place in the field in 2007. What exactly was changed? What was different between before/after with that event?

Since then, what has changed? Have their been actual laws passed by Congress?…

In your professional opinion, have these changes “stacked the deck against the accused,” so to speak? Do you believe civil liberties have suffered for men and women in uniform because of the changed environment? Have their been any specific new orders/regs issued in regard to all this in the brief two weeks or so that President Trump has been in office?

Anything else you think is important about all this would be appreciated, too. Thanks for your help.

My response is the following:

I apologize for not sooner responding. The question of what has been amended in the military justice system and are those amendments “stacking the deck” against a military accused literally fill a book, and fill a book I’m presently in the process of writing, the title of which is “Finding Justice in an Unjust System” (though my title is ever-changing).

The initial amendments to the UCMJ effective 1 October 2007 centered on the expansion of Article 120 theories of liability, and attempted to remove a foundational element of “without consent” from the prosecution’s burden of proof to require the defense to raise consent as an affirmative defense. Military courts eventually declared the scheme (known as the double burden shifting) unconstitutional but in most cases it had not been to the particular accused in the manner the burden had been applied to him. The military judges in most instances, recognizing the calamity, decided that if the issue of consent was raised by “some evidence” without regard to source or method then the judge would instruct the panel that the prosecution had the burden of disproving consent.

The next round of amendments to the UCMJ in 2012, brought another change to the framework of Article 120 and carved out yet more theories of liability. The most troubling was that now, any touching of ANY body part if done with an intent to harass, degrade, or arouse either party could carry with it sexual offender registration consequences at conviction. We in the field discussed harrowing hypotheticals that could bring about sex offender registration, such as throwing a chocolate pie in the face of another. Proponents of the scheme chided such worries to reassure that prosecutors would make appropriate and reasoned decisions. I’m aware of successful prosecutions for touching of an elbow and the like.

Subsequent changes to the military’s justice system that impact the Article 120 practice stem from annual National Defense Authorization Acts and largely focus on “victims rights.” The most significant among them from my perspective was the gutting of Article 32(b), UCMJ and the first wave of implementing a statutory right to deny access to the complainant by the defense.

Article 32(b) prior to the amendments had been a formidable tool to obtain discovery in a case prior to referral (when a court-martial formally comes into the arena of a trial and the control of a judge) and also a useful stage for the command and prosecution to assess the viability of their case. The amendments remove from consideration that discovery is a discrete purpose for an Article 32(b), removed from their title or ethos that it would be an “investigation,” now dubbed a “preliminary hearing.” The scope of what a military accused may submit for consideration also was substantially amended in the statute, including that he may not submit any evidence of his service record for consideration as to the level of adjudication. The amendments also removed several procedural safeguards for what evidence the government could submit at the hearing. Previously some documentary evidence such as police reports and narratives could not come into evidence at the Article 32(b) unless a proponent witness made himself available for some rudimentary questions to establish reliability for the report. No more.

After a few more tweaks, all complainants (at first it was only uniformed members and then it became civilian as well) now have a statutory right not to appear for testimony at the Article 32(b) but may freely attend to hear the entirety of the hearing itself including the testimony of other witnesses whose testimony may contradict his or her own. Even attending the hearing will not submit the person to questioning.

Likewise, the first victim-centered changes created a requirement for defense attorneys to go through prosecutors to request interview with complainants. Later each service adopted and created a system to afford an individual attorney for the named “victim” in military cases.

In addition to amendments to the statute of Article 120, UCMJ itself and to Article 32(b), there have also been a significant number of changes to the military rules of evidence designed from my perspective to make it far harder for a military accused to avail himself of certain defenses. Namely, MRE 404(a)(2) now excludes, among others, from consideration any sexual assault case for presentation of good military character evidence at trial.

Additionally, MRE 513, the rule on psychotherapist-patient privilege for the UCMJ purported to remove the constitutional exception to piercing said privilege and made the framework of even getting to an in camera review by the judge nearly impossible.

MRE 801(d)(1)(B) was also amended to permit introduction of any prior consistent statement by a witness for any purpose. The intent was to buttress the credibility of a complainant witness who has ever prior to trial made any statements consistent with his or her in court testimony.

The list goes on. Proponents of these changes to the UCMJ remark that this is helping to bring the military into line with the “civilian system.” However, the most significant aspects where the military differs as a culture and the attendant dangers for command influence and inappropriate pressures from superiority in rank are precisely why differences were outlined at the start.

Moreover, civilian systems require unanimous verdicts and the military still does not. The latest amendments which will go into effect in approximately two years move up from 2/3 to 3/4 majority for conviction, but I believe those changes are merely illusory given the total package. Additionally the civilian defense bar has private investigation resources and the ability to subpoena witnesses outside prosecution channels whereas defense in the military still do not.

(And I haven’t even touched on the incentives being created for reporting which further complicate the system and serve to give at minimum the appearance that the system is incentivizing false reports.)

Can a military accused still receive a fair trial? Yes. But his ability to do so becomes increasingly more difficult with each amendment, and relies more and more on his ability to seek and obtain expensive resources not afforded each accused by virtue of his service.

[Thus far, I haven’t seen any proposed amendments from the new administration. The last round of changes were signed in the FY17 NDAA and those amendments mostly go into effect about two years from now.]