The Military Rules of Evidence: A Short History of Their Origin and Adoption at Courts-Martial
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The Military Rules of Evidence:
A Short History of Their Origin and Adoption at Courts-Martial
FredL. Borch
Regimental Historian & Archivist
The Military Rules of Evidence (MRE) have been a
permanent feature of courts-martial practice for more than
thirty years. While practitioners today are comfortable with
the rules and accept their permanence in military criminal
trials, their adoption in 1980 was the end result of a long and
contentious struggle. This is the story of the origin of the
MRE and their adoption at courts-martial.
Prior to 1975, when the Congress enacted legislation
establishing the Federal Rules of Evidence (FRE), the
admissibility of evidence in U.S. courts was governed by
Federal common law. Similarly, evidentiary rules at courts-
martial were governed by a common law of evidence that
had emerged from successive decisions from the Court of
Military Appeals (COMA) and, to a lesser extent, the
inferior service courts. The 1969 Manual for Courts-Martial
(MCM), contained these judicial decisions, but it was
difficult to know whether the MCM was adopting these
decisions as positive law or merely setting them forth for
the edification of the reader.'
Under the Uniform Code of Military Justice (UCMJ),
Article 36, courts-martial shall, so far as ... practicable,
apply the principles of law and rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts.2 Recognizing that the codification of the
Federal common law rules of evidence meant that the Armed
Forces should consider codifying military evidentiary rules,
Colonel (COL) Wayne E. Alley, the then-Chief of Criminal
Law in the Office of The Judge Advocate General, decided
that Military Rules of Evidence should be created and
adopted by the Armed Forces.
With the concurrence of Major General (MG) Wilton B.
Persons, The Army Judge Advocate General, COL Alley put
his idea in a written memorandum, which he submitted to
the Department of Defense (DoD) Joint Service Committee
on Military Justice (known colloquially as the JSC).3
Fredric 1. Lederer, The Military Rules of Evidence: Origins and Judicial
Implementation,, 130 MIL. L. REV. 5, 8 (1990). Lederer is now the
Chancellor Professor of Law and Director, Center for Legal and Court
Technology, College of William and Mary; he also is a retired reserve judge
advocate colonel.
2 UCMJ art. 36(a) (2008).
The Joint Service Committee on Military Justice (JSC) consists of an
Army, Navy, Air Force, Coast Guard, and Marine Corps representative,
usually in the grade of 0-6. Department of Defense Directive 5500.17,
which governs the operation of the JSC, sets out the committee's duties and
responsibilities. Its principal mission is to conduct an annual review of the
Manual for Courts-Martial (MCM) in light of judicial and legislative
Colonel Alley, who had recently assumed the chairmanship
of the JSC, formally proposed that the services revise the
Manual for Courts-Martial to adopt, to the extent
practicable, the new civilian rules.4
Colonel Alley's chief argument was that Article 36
required a codification of the military rules to bring courts-
martial practice in line with federal civilian practice under
the new FRE. A second important reason, as already
indicated, was that the evidentiary language contained in the
1969 MCM was not necessary binding, making its
usefulness doubtful. But Alley also had a third reason, which
grew out of his experience as a military judge wrestling with
evidentiary issues at trial. In a recent e-mail, he explained:
I was the only [JSC] member whose mid-
career years were spent in the judiciary. I
dealt with evidentiary issues on an almost
daily basis. I found the best source of
helpful case law was in Article III court
decisions, which, I believed, would be less
and less helpful for military judges as the
cases came more and more to be
explications of FREs. This was particularly
important because of the FRE clarity about
the necessity to preserve issues by timely
objection. Military practice was wishy-
washy as to this, and military case law
seemed to support bailing out counsel who
didn't do his objecting job.5
developments in civilian and military practice. As a practical matter, this
means deciding if changes are needed to the Military Rules of Evidence
(MRE)-and the Punitive Offenses and Rules for Courts-Martial-in light
of changes in civilian criminal law. U.S. DEP'T OF DEF., DIR., THE ROLES
AND RESPONSIBILITIES OF THE JOINT SERVICE COMMITTEE ON MILITARY
JUSTICE (3 May 2003), available at http://www.dod.gov/dodgc/images/jsc
mission.pdf (last visited Jan. 13, 2012).
Lederer, supra note 1, at 6.
E-mail from Brigadier General (Retired) Wayne E. Alley, to Fred L.
Borch, Regimental Historian and Archivist, The Judge Advocate General's
Legal Ctr. & Sch., (7 Dec. 2011, 11:23:00 EST) (emphasis added) (on file
with author).
JUNE 2012 THE ARMY LAWYER DA PAM 27-50-469](ViewImageLocal?handle=hein.journals/armylaw2012&div=70&collection=&method=preview&ext=.png&size=3)
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The Military Rules of Evidence: A Short History of Their Origin and Adoption at Courts-Martial
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