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Earlier this year, the President signed into effect changes to the Manual for Courts-Martial (“MCM”). The MCM is an Executive Order that generally governs how trials by courts-martial operate. It includes the Military Rules of Evidence, the Rules for Courts-Martial, and the elements and maximum punishments for the punitive articles of the Uniform Code of Military Justice. Several of the 2016 amendments are significant changes.

One of the amendments was to how trial courts decide whether evidence seized as a result of an unlawful search or seizure should be suppressed. As previously discussed here and here, evidence seized in violation of the Fourth Amendment is generally inadmissible at trial if a proper objection is made. This amendment adds a requirement that the trial court consider whether the exclusion of the evidence would have a deterrent effect on future law enforcement actions and whether the benefits of any such deterrence outweigh the costs to the criminal justice system.

Another change was made to when a motion to dismiss a charge for the failure to state an offense must be made to avoid waiving the issue on appeal. The old rule was that a charge could be dismissed at any stage of the case if the language of the charge failed to state an offense. The new rule requires that the motion to dismiss be made before the court-martial adjourns or else the issue is waived.

Finally, another change was made to how the prosecutor is required to corroborate an admission or confession of an accused. Prior to this rule change, the government had to corroborate the essential facts of an accused’s statement or admission, typically made during an interrogation, with independent evidence. An admission or confession alone is not sufficient to obtain a conviction due to the risk of a false confession. The new rule now looks at whether the government can show evidence that the admission or confession is trustworthy and not just whether the prior statement was true.