Recent amendments to UCMJ will impact military court-martial process

Due to legislation recently passed and signed by President Obama, the Uniform Code of Military Justice (UCMJ) is set to experience significant changes in 2014. Indeed, the Army News Service reports that the newly approved amendments will likely have a far-reaching impact on how military courts-martial will be investigated and prosecuted, especially in cases involving serious allegations such as sexual assault or murder.

The changes, which were part of the National Defense Authorization Act, are the most extensive amendments to the Manual for Courts-Martial in decades, according to a statement by Lt. Col. John L. Kiel, Jr., who is the policy branch chief at the Army's Criminal Law Division in the Office of the Judge Advocate General.

The most notable of the recent amendments to the UCMJ - particularly when it comes to the defense of an accused - include changes to Article 32 hearings as well as a considerable expansion of the rights of alleged victims.

Victim's right to hear testimony of others

The creation of a victim's right not to be excluded from any court-martial proceeding is likely one of the most substantial UCMJ changes contained in the National Defense Authorization Act. In effect, this means that an alleged victim is free to listen to the testimony of all other witnesses during a court-martial and other related hearings. The only exception is if clear and convincing evidence can prove that a victim's testimony will be "materially altered" by listening to the testimony of other witnesses.

This amendment is particularly significant due to the fact that the Military Rules of Evidence state that non-victim witnesses can be precluded from listening to the testimony of other witnesses at the request of either the defense or prosecution. The reason behind this exclusion is to prevent a witness from shaping his or her testimony to match what was heard during another witness's account - whether intentionally or unintentionally.

At best, giving an alleged victim the right to be present during the testimony of others creates an unnecessary risk of unduly influenced or possibly unreliable testimony. At worst, it creates a situation in which an alleged victim may knowingly fashion his or her testimony to match that of other witnesses - thus putting the legitimacy of any decision into question.

Article 32: Hearing Officers

Another important change to the UCMJ will affect how Article 32 hearings are conducted. Essentially, Article 32 hearings - proceedings that are analogous to grand juries in the civil court system - are use to determine if there is enough evidence to proceed with a general court-martial, which is the type of court-martial used for the most serious of allegations.

Following the new legislation, Article 32 hearing officers will be required to be impartial judge advocates, whenever practicable - meaning only trained attorneys will generally be making the determination of whether the evidence warrants a court-martial. Interestingly, while most service branches already required judge advocates to serve as Article 32 hearing officers prior to the recent change, the Army often did not, thus necessitating the recent change.

Seek legal assistance if needed

Unfortunately, given the fact that the National Defense Authorization Act made so many sweeping changes to the UCMJ, this article is barely able to scratch the surface of the legislation's potential impact on courts-martial. Consequently, if you are currently facing a military court-martial, it is often best to seek the counsel of an experienced and knowledgeable court-martial defense attorney. A skilled attorney will help protect your rights and make sure you are aware of all recent changes to military law.