Navigating the judicial landscape of the military can be daunting, especially when it comes the military rules of evidence. These rules govern the admissibility of evidence in military courts and are crucial for anyone involved in or studying military law. Whether you are a service member, a legal professional, or simply interested in military legal proceedings, grasping these rules can significantly impact the outcome of military justice cases.
The Scope of Military Rules of Evidence
The Military Rules of Evidence (MRE), found within the Manual for Courts-Martial (MCM) are specific guidelines that regulate the admission and use of evidence in courts-martial, clemency boards, and other military judicial proceedings. These rules are essential for maintaining discipline, efficiency, and fairness within the armed forces’ legal system. The scope of these rules is extensive, designed to ensure that all proceedings are conducted under the highest legal standards akin to civilian judicial systems. Often, the MRE are nearly identical, or identical, to the Federal Rules of Evidence (FRE).
Like civilian courts, where the FRE may be interpreted differently between jurisdictions (for example, the 11th Federal Circuit covering Alabama, Florida, and Georgia may interpret MRE 803 slightly different than the 3rd Federal Circuit covering Delaware, Pennsylvania, New Jersey, and the Virgin Islands) the MRE can be interpreted differently by each military branch. However, there is often consistency between the branches in the general interpretation of these rules.
General Admissibility Principles
In military legal practice, the general principle governing the admissibility of evidence is that all relevant evidence is admissible unless there is a specific rule or law that excludes it.
This is stated byMilitary Rule of Evidence 402:
(a) Relevant evidence is admissible unless any of the following provides otherwise:
(1) the United States Constitution as it applies to members of the Armed Forces;
(2) a federal statute applicable to trial by Courts-Martial;
(3) these rules; or
(4) this Manual.
(b) Irrelevant evidence is not admissible.
Relevance is determined, in accordance with MRE 401, by whether the evidence in question makes a fact more or less probable than it would be without that evidence and whether that fact is of consequence to determining the case.
This principle mirrors those in civilian jurisdictions but is applied with particular considerations unique to military needs, such as chain of command, security clearances, and operational secrecy. Additionally, the military courts strive to balance the need for a thorough and factual adjudication with the overarching imperative of maintaining good order and discipline within the ranks.
Hearsay Rule and Exceptions – MRE 801 and 803
Many of our trials involve allegations made by ex-girlfriends, ex-spouses, etc. A common question our attorneys get while preparing for these types of trial is “why cant we tell the jury about the things she told me?” Hearsay is an out-of-court statement introduced in court for the truth of the matter asserted within the out-of-court statement. The following section explains why we may not always be allowed to introduce the statements of an alleged victim or another witness to the jury.
The hearsay rule in military courts is a critical component that dictates whether an out-of-court statement can be used as evidence during a trial. Hearsay is generally inadmissible unless it falls under one of the many exceptions predefined by the military rules of evidence. These exceptions are intended to allow certain reliable statements that would otherwise be excluded under the traditional hearsay rule.
For example, exceptions may include but are not limited to admissions by a party-opponent, certain public records, and statements in furtherance of a conspiracy. The rationale behind these exceptions is rooted in the necessity and reliability of the statements. For example, imagine someone witnesses a loud, shocking car crash and calls 9-1-1. On the call with 9-1-1, the witness screams “Holy ****! A blue car just blew through that red light without stopping and hit a red car. They could have killed someone! Please send help!” This type of statement may be admissible as an excited utterance (MRE 803(2)). The theory behind an excited utterance is that if someone just witnessed or experienced a shocking event and is still in a state of excitement, they are unlikely to have the time to fabricate a story or misremember the shocking event. Their “utterance” is seen as credible and thus admissible at trial.
Returning to the original question, it can be a struggle to introduce an out-of-court statement as a statement at trial. When our clients ask “why cant we tell the jury about the things she told me?” we will look at the context in which the statement was made, who was present for the statement, and other surrounding details to determine if a hearsay exception is applicable.
Privileges and Their Limitations – MRE 412 and 513
Imagine a sexual assault allegation. The client is a female and the alleged victim is a male. The two have had a sexual relationship for over a year. The alleged victim claims the client sexually assaulted him when he woke up while she was performing oral sex on him. The client may say “I don’t understand. We have had a relationship for more than a year. He has asked me to do that before and I have done it many times before. Can we tell the jury about all the sex we have had before that night?” The paragraph below discusses certain privileged information that is generally inadmissible at trial.
Military courts recognize various legal privileges that protect certain communications from disclosure in a legal setting. Common privileges include attorney-client privilege, which secures confidentiality between defense attorneys and their military clients, and spousal immunity, which can protect private communications between married couples from being admitted as evidence. Two of the most common privileges in military cases are MRE 412, which governs the admissibility of evidence regarding an alleged victim’s past sexual behavior or predisposition, and MRE 513, Psychotherapist-Patient Privilege. However, these privileges are not absolute in the military context and come with specific limitations.
For instance, MRE 412 generally prohibits introduction of an alleged victim’s prior sexual behavior or predisposition. For example, if an alleged victim is homosexual, that information is generally not admissible at trial. An ongoing or previous sexual relationship is also generally not admissible, even if it is between the alleged victim and the client. However, there are three exceptions:
(1) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the accused was the source of semen, injury, or other physical evidence;
(2) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the accused to prove consent or if offered by the prosecution; and
(3) evidence the exclusion of which would violate the accused’s constitutional rights.
Returning to our original scenario, the client likely would not be able to introduce evidence of other types of sexual encounters she had with the alleged victim because of MRE 412. However, she may be able to introduce evidence about specific times she provided oral sex to the alleged victim while sleeping and his previous requests for her to do so as admissible evidence under exception (2) of MRE 412.
Digital Evidence in the Modern Military
Another common question our attorneys get relates to digital evidence, such as text messages. We are often asked “can we show the panel the text messages she sent me?”
The rise of digital technology has fundamentally changed how evidence is collected, stored, and analyzed in military courts. Digital evidence includes emails, text messages, GPS data, and information from various electronic devices, which can be pivotal in proving or refuting charges in a Court-Martial.
However, handling such evidence requires understanding its volatile nature and the easy possibility of alteration or corruption. Military courts employ stringent standards for the collection, preservation, and presentation of digital evidence to ensure its integrity and reliability.
Often, we will arrange for a digital forensic expert (DFE) to join the Defense as an expert consultant to help us provide evidence of reliability. In some cases, witnesses may not remember the text messages or data they created. Without their memory of those messages, we may not be able to introduce the messages during their testimony. A DFE may be able to testify to the authenticity of the messages or data based upon the tools they used to analyze and verify the data as original.
Appeals and Evidence Reevaluation
In military justice, as in civilian law, the appeals process provides an essential check on the legal system, offering a mechanism for the review of trial outcomes that may have been affected by legal or procedural errors. This includes reevaluating how evidence was handled and whether proper legal standards were applied when determining its admissibility. Whenever a Court-Martial results in a conviction and a punitive discharge or more than 6 months of confinement (jail), the case is automatically appealed to an appellate court. The appropriate appellate court will be based upon the client’s branch of service. All Army appeals are heard by the Army Criminal Court of Appeals (ACCA), all Marine appeals are heard by the Navy-Marine Corps Court of Appeals (NMCCA), etc. During the appeal process, any evidentiary objections raised by the Defense at trial can be reviewed and litigated in front of the appellate court. Sometimes, the conviction is overturned due to highly prejudicial, inadmissible evidence being wrongfully introduced to the Government.
Ultimately, an attorney who knows the Military Rules of Evidence has a great advantage at Court-Martial. The player who regularly studies and knows the rules of the game has a greater chance of winning the game than the player who has barely seen the rulebook. Our team at Crisp and Associates, LLC knows the rulebook. We are passionate about guiding our clients with precision and care through the complex landscape of the military justice system. Specializing in military law, we possess the targeted expertise needed to effectively protect your rights and ensure a just resolution to your case. Turn to us for comprehensive legal support, bolstered by our profound understanding of the military rules of evidence, and how to strategically leverage them to your benefit. Trust in our commitment to achieving the best possible outcomes, advocating fervently on your behalf every step of the way.
