Something Old, Something New, Something Borrowed, Something Blue: Recent Developments in Pretrial and Trial Procedure
![handle is hein.journals/armylaw1998 and id is 360 raw text is: Something Old, Something New,
Something Borrowed, Something Blue:'
Recent Developments in Pretrial and Trial Procedure
Major Gregory B. Coe
Professor Criminal Law Department
The Judge Advocate General's School, United States Army
Charlottesville, Virginia
In 1996, the membership of the Court of Appeals for the
Armed Forces (CAAF) changed with the addition of another
associate judge.2 The new membership raised many questions,
mainly, would the court's disposition on key issues change?
Would the court establish a new direction for military justice?
The major pretrial and trial procedure cases from 1996 pro-
vided just a glimpse of the trail the court is blazing for military
justice. In 1997, however, the courts were more productive.
The CAAF and intermediate service courts resolved many
issues that affect the way practitioners execute their missions.
In addition, contrary to the 1996 cases, the 1997 pretrial and
trial procedure cases are of truly landmark proportion.' The
new CAAF and the intermediate service courts mixed some-
thing old, something new, something borrowed, and something
blue to provide a clear statement of the law in pretrial and trial
procedure.
This article reviews recent developments in the law relating
to Article 32 investigations, pleas and pretrial agreements,
court-martial personnel, and voir dire and challenges. Not
every recent case is discussed; only those that establish a signif-
icant trend or change in the law are considered. Practical ram-
ifications for the practitioner' are identified and discussed.
SOMETHING OLD
Article 32 Investigations: Still at the Forging Stage
The most significant development in the area of Article 32
investigations in 1996 involved the Air Force Court of Criminal
Appeals successfully focusing the CAAF's 1995 evisceration
of the 100-mile situs rule.5 One might conclude that there is not
much that is more controversial than the 100-mile situs test in
this area of the law. One case shows that the law of Article 32
investigations is still in the forging stage.
Murder, Lesbian Duress, and McKinney:
Retreat from Fatal Vision
In MacDonald v. Hodson,6 the famous court-martial case
involving Captain MacDonald's murder of his wife and chil-
dren, and inspiration for the book Fatal Vision,7 the Court of
Military Appeals considered whether an Article 32 investiga-
1. Something old, something new, something borrowed, something blue. This is a traditional wedding rhyme that was first quoted in an 1883 English newspaper
and was attributed to some Lancashire friends. In order to start a marriage successfully, a bride had to mix something old, something new, something borrowed,
and something blue, and have a sixpence for her shoe. Something old protected a baby. There is no cited history to explain something new. A bride who wore
something borrowed (something that a happy bride had already worn) was lucky. A bride who wore blue expressed faithfulness. The lucky sixpence produced
prosperity or warded off evil from disappointed suitors. See A DICTIONARY OF SUPERSTITION 42-43 (lona Opie et al. eds, 1989).
2. Associate Judge Andrew W. Effron joined to court to fill a vacancy left open when Judge Wiss passed away in October 1995. Judge Effron brings to the CAAF
a background rich in military legal experience. After graduating from the 80th Officer Basic Course, The Judge Advocate General's School, United States Army, he
was a trial and defense counsel at Fort McClellan, Alabama. He then served with the Office of the Department of Defense General Counsel while in uniform and then
as a civilian attorney-advisor. As counsel, general counsel, and then minority counsel to the Senate Armed Services Committee from 1987-1996, he was involved in
the most significant legislative changes affecting the military justice system. His wealth of experience and knowledge of the intent behind the 1984 Manualfor Courts-
Martial and law and regulations of all of the services will have a pivotal impact on the deliberations and opinions of the CAAF.
3. Even the intermediate service court cases possess landmark qualities, considering that they analyze an issue that was not completely resolved by the CAAF but
remains critical to the continued vitality of the military justice system. In the significant cases from 1996, for the most part, the courts interpreted a recent case that
espoused a new statement of the law. As such, there was no particularly new statement of black letter law, but an interpretation that established a mild twist in the
application of that black letter law. See generally Major Gregory B. Coe, Restating Some Old Rules and Limiting Some Landmarks: Recent Developments in Pre-
Trial and Trial Procedure, ARmy LAW., Apr. 1997, at 25.
4. The term practitioner includes all judge advocates in the military justice system. The 1997 cases contain lessons for staffjudge advocates, appellate military
judges, military judges, defense counsel, and trial counsel.
5. See United States v. Burfitt, 43 M.J. 815 (A.F. Ct. Crim. App. 1996). See also MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 405(g)(1)(a) (1995) [here-
inafter MCM].
6. 42 C.M.R. 184 (C.M.A. 1970).
APRIL 1998 THE ARMY LAWYER - DA PAM 27-50-305](ViewImageLocal?handle=hein.journals/armylaw1998&div=22&collection=journals&method=preview&ext=.png&size=3)
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Something Old, Something New, Something Borrowed, Something Blue: Recent Developments in Pretrial and Trial Procedure
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