Denying the Defense of Good Military Character – Constitutional?

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The President signed Executive Order 13696 on 17 June 2015, which amended (among other provisions) Military Rule of Evidence 404(a) to specify that general military character is not a pertinent character trait for the purpose of showing the probability of innocence of the accused for certain for certain enumerated offenses, including sexual assault offenses under Article 120, U.C.M.J. When that amendment takes effect and for which offenses raises questions of constitutionality. The Executive Order reflects that the amendment takes effect as of the “date of the order, subject to the following:

(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the effective 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 proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the effective 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.” 80 Fed. Reg. 35, 783 (June 17, 2015)(emphasis added).

Executive Order 13696 was, in part, intended to implement changes directed by the FY15 National Defense Authorization Act (FY15 NDAA). See 2015 NDAA, Pub. L. No. 113-291 § 536, 128 Stat. 3292, 3368.

On 23 February 2016, a Navy judge orally granted a defense motion in a Navy general court-martial alleging that the amendment presented an impermissible ex post facto violation, and she determined that the accused would be permitted to introduce evidence of his good military character even though his criminal investigation began prior to the 17 June 2015 amendment to M.R.E. 404 because the allegation of wrong-doing occurred prior to the amendment. The Navy judge followed up her decision with a written ruling dated 25 April 2016 explaining that to do deny the military accused the right to present evidence of his good military character would impermissibly infringe on his right to present a complete defense.

The government took a writ to the Navy Marine-Corps Court of Criminal Appeals (N.M.C.C.A.), the N.M.C.C.A. accepted the case, and reversed the trial judge’s determination that the defense could present evidence of good military character. See United States v. Roberts, 2016 CCA LEXIS 379 (June 28, 2016) but did not address the portion of the military judge’s ruling concerning the constitutional right to present a complete defense.

On 16 August 2016, the navy appellate counsel representing the military accused filed a request for review from the Court of Appeals for the Armed Forces (C.A.A.F.), which is still pending.

The daily journal entry from the website is available here.


The only judicial examination of what is intended by “investigation” in this context came in the Navy-Marine Corps Court of Criminal Appeals opinion of United States v. Roberts, 2016 CA LEXIS 379 (June 28, 2016), which as explained above is pending a petition of review by the Court of Appeals for the Armed Forces. Alarmingly in Roberts, the N.M.C.C.A. interpreted “investigation” to mean “criminal investigation” such that if a criminal investigation was already pending prior to the 17 June 2015 Executive Order, the court believes that there is no ex post facto violation for disallowing evidence of good military character pursuant to the revision of M.R.E. 404(a)(2). Notwithstanding that the language following the list of events to which the statute purports to not “invalidate” seemingly refers to them as “action” by explaining that it is a non-exhaustive list of “action,” nothing in the plain language of this timing provision declares that a criminal investigation is an “other action” for which the rules that are found in the amendments would govern. As the trial military judge points out in her ruling, military justice procedure is divided into severable phases. United States v. Nichols, 6 C.M.R. 27 (U.S.C.M.A. 1952). See also United States v. Sonnenschein, 1 C.M.R. 63 (U.S.C.M.A. 1951); United States v. Merritt, 1 C.M.R. 56 (U.S.C.M.A. 1951). None of these phases is a criminal investigation. As the government often reminds defense when defense complains of lengthy investigation, ordinarily there is not right to speedy investigation. See generally, United States v. Reeves, 34 M.J. 1261 (N.M.C.C.A. 1992) (citing United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 101, 97 S. Ct. 2044 (1977). Interpreting the term “investigation” to mean that if a “criminal investigation” had commenced prior to the amendments 17 June 2015 effective date, the accused would not be permitted to avail himself of good military character evidence connotes a phase or action that is not contained in the plain language of the statute and leads to absurd results.

Indeed, no rule contained in the M.C.M. purports to provide any guidance whatsoever as to the goings on of a criminal investigation by military law enforcement and certainly none of the amendments contained in the Executive Order do so. To find the absence of an ex post facto infraction by reading into plain language of a statute that any provision governs a criminal investigation is patently absurd. From the jumbled legislative intent available, it would seem that in the same FY2015 NDAA that overhauled the Article 32 “investigation” into a preliminary hearing neglected to revise or substitute the word “investigation” into preliminary hearing so as to be internally consistent. Indeed, the only “action” over which any of the rules contained within the Manual would govern would be the proceeding pursuant to Article 32. The list also provides a chronological rundown of encounters a military accused would have in the military justice system for which the M.C.M. provides the rules, and it would not follow that a criminal investigation would come after restraint.

Leaving aside whether or not it was even proper for the N.M.C.C.A. to hear the government’s appeal in United States v. Roberts and the N.M.C.C.A.’s questionable jurisdiction for the Article 66 appeal the government took on an evidentiary matter, the court’s analysis also fails to address any portion of the trial judge’s determination regarding the amendment’s unconstitutionality pursuant to Amendment V and Amendment VI, U.S. Constitution, that a retroactive application precludes the military accused of presenting a complete defense and is arbitrary and purposeless.


The Constitution guarantees an accused a “meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). As the Navy military appellate counsel points out in his brief to C.A.A.F., though “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence criminal trials uch rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.”” United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1988) (determining it was not unconstitutional for rule of evidence to exclude polygraph evidence because of the governments’ unquestionably legitimate interest in ensuring reliable evidence is presented to the trier of fact in a criminal trial).


The 17 June 2015 amendment to exclude good military character evidence from sexual assault cases and others was arbitrary in that the rule to exclude important defense evidence did not serve any legitimate interest. See Holmes v. South Carolina, 547 U.S. 319, 325, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) citing Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2e 1019 (1967) (statute that could not be defended that could not rationally set apart groups of persons likely to commit perjury); Chambers v. Mississippi 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1972) (holding that rules that precluded defendant from introducing a government witness’ self-incriminating statements denied him due process); see also, Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (statute was arbitrary when no one advanced any rational justification for the wholesale exclusion of potentially exculpatory evidence).

While the recent drafters of M.R.E. 404(a) explicitly stated in their analysis that they were significantly changing the law, they also provided that evidence of good military character would be admissible when found to be pertinent. Neither the plain language of the originally enacted rule, nor the original drafters’ analysis provides guidance as to when good military character would be a “pertinent trait.” It historically had been left to the military courts to interpret the meaning of this language. See United States v. Clemons, 16 M.J. 44 (C.M.A. 1983).

As the Navy trial judge explained in her ruling concerning the unconstitutionality of M.R.E. 404, despite that three separate bills were proposed to modify M.R.E. 404(a) in the second session of the 113th Congress, none of them was adopted. Instead, inexplicably M.R.E. 404(a)(2) was amended to prohibit good military character evidence for the offenses of sexual assault, larceny, forgery, arson, extortion, burglary, and frauds against the U.S, though murder, manslaughter, and assault were not in the list. The development of M.R.E. 404(b)(2) evinces no rational theory for the wholesale exclusion of good military evidence in cases involving sexual assault and the litany of other cases its purports to provide a bar.

As the Navy appellate attorney points out, the C.A.A.F. and military courts long have recognized that “good military evidence is pertinent to a complete defense.” United States v. Courts, 24 M.J. 11, 14 (C.M.A. 1987) (citing United States v. Clemons, 16 M.J. 44 (C.M.A. 1983)); United States v. Wilson, 28 M.J. 48, 50 (C.M.A. 1989)). Nothing in the amendment’s development gives any insight that would undermine in a sexual assault case or otherwise the established rationale that “it would provide the basis for an inference that an accused was too unprofessional to have committed offenses which would have adverse military consequences.” Wilson, 28 M.J. at 49 n.1.


In the absence of a purposeful and carefully delineated rationale for M.R.E. 404(a)(2)’s amendment, I do not believe it cannot withstand constitutional scrutiny because as the appellate attorney explained “by restricting the defense in this way, the President has…made it easier for the Government to meet its…burden of proof…”   To do so unconstitutionally infringes on a military accused’s ability to present a complete defense and diminishes the level of proof required for the prosecution to prove the military accused’s guilt.

Time will tell whether the C.A.A.F. agrees with me.

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