Why have Evidence Law?

1.1 Why have Evidence Law?

A. For the most part, evidence law puts in place a set of restraints that courts enforce against counsel in an attempt to manage the various risks and opportunities that the trial process presents in an adversary setting. There are many reasons for having evidence law, but five principle reasons stand out.

1. The first is mistrust of panels. This may seem strange since we place our faith in the panel system. However, this point goes a long way in showing that our faith in panels is very limited. The hearsay doctrine exists, for example, because we think panel members are amateur fact-finders that cannot properly evaluate statements made outside their presence. The rules governing character evidence assume that panel members place too much weight on such proof or employ it improperly for punitive purposes.

2. The second reason for evidence law is to serve substantive polices relating to the matter being litigated. Rules that set and allocate burdens of persuasion are examples of this basis.

3. The third reason is to further substantive policies unrelated to the court martial. Privileges are the prime example of this basis. The two spousal privileges (one covering marital confidences, the other covering testimony by one spouse against another) aim to protect marriage, vindicating the widespread belief that martial privacy is and should be protected by preventing a situation of pitting spouse against spouse in a court martial.

4. The forth reason for the law of evidence is to ensure accurate fact finding. Thus the rules on authenticating documents and things (laying a foundation) and the best evidence doctrine that requires the content of a writing to be proved by means of the writing itself exist largely to ensure accuracy, to force the parties and the court to be careful.

5. The fifth reason for evidence law is pragmatic. It is to control the scope and duration of trials. Courts-martial must be resolved with reasonable dispatch, and achieving a final outcome is itself valuable even if it is imperfect. Hence the rules authorize the military judge to control the sequence of proof and the manner of examining witnesses and can exclude evidence that would otherwise be admissible, simply because it would take more time than it is worth and might confuse the panel.

B. User-Friendly

1. Both the Federal and the Military Rules of Evidence are set forth in short provisions in language easily read and largely free from technicality and cross-referencing. The rules can easily be carried to court, quickly perused, and readily understandable. Although user friendly on their surface, evidentiary rules tend to be confusing when actually put into practice.

2. The basis for the MRE is of course the FRE. Understanding the historical development of the FRE helps place into context the MRE.

1.2 The Federal Rules of Evidence

A. Creation

1. The FRE were adopted in 1975. Before 1975 evidence law was mostly a creature of common law tradition. In most jurisdictions there were statutes addressing such matters as physician-patient privilege, admissibility of business and public records, and some aspects of impeaching witnesses.

2. Numerous efforts to codify evidence law preceded the Federal Rules, and four of these are noteworthy:

i. First, Dean Wigmore wrote an early code in 1909 when he was a young man. It was a cumbersome and lengthy document that achieved no success in practice, except perhaps in proving that evidence law could be codified.
ii. Second, in 1945 the American Law Institute proposed the Model Code of Evidence. Professor Edward Morgan drafted and later defended it, and he vigorously disagreed with Wigmore on important points. But the Model Code was radical and highly technical. It would have largely discarded the hearsay doctrine, and its cross-referencing and precise terminology put it on a par with the modern Commercial Code in complexity. As a result, no jurisdiction adopted the Model Code.
iii. Third, in 1953 the first Uniform Rules of Evidence appeared, proposed by the National Commissioners on Uniform State Laws. It drew from the Model Code but was shorter, less technical, simpler in design, and not so radical. Several states adopted the Uniform Rules of Evidence. In 1974 the Commissioners abandoned the original rules and adopted the new Uniform Rules of Evidence (URE) which largely tracks the Federal Rules.
iv. In 1965, the California Evidence Code, put together a comprehensive statutory scheme by a public commission. This code was subsequently enacted by the legislature. It proved highly successful and made important modifications in common law tradition.

B. Adoption

1. The FRE are the most recent and by far the most successful codification. These were proposed by a distinguished Advisory Committee comprised of practitioners, judges, and law professors appointed by the U.S. Supreme Court. The committee labored for more than eight years, producing two published drafts that were publicized among the bench and bar and would-be final version that the Supreme Court accepted and transmitted to Congress pursuant to the Enabling Act.

2. By accident of history, the Rules arrived at Congress as the Watergate scandal was erupting. Amidst claims of executive privilege by President Nixon stirring impassioned resentment in Congress, the privilege provisions in the Rules attracted immediate attention. Acutely sensitive on the matter of legislative prerogative as against presidential power, members of Congress saw the Rules as an encroachment by the other branch, and an infringement of legislative prerogative by the judiciary. Hence the Rules were not destined to pass quietly into law. Instead Congress held hearings and prepared committee reports, scrutinized the Rules, changed them substantially, and finally enacted the changed version in statutory form.

3. Most significant among congressional changes was the deletion of the privilege rules and the adoption in their place of a single provision (FRE 501) leaving privilege to common law evolution.

4. The idea of codifying the rule of evidence was not universally supported. There were several legal scholars who believe strongly that evidence law should not be codified and that the Federal Rules are a mistake. In fact, the Massachusetts Supreme Court believed adopting the FRE “would tend to restrict the development of common law principles” on admissibility of evidence and would not necessarily advance the objective of uniformity between state and federal courts because proposed state rules depart significantly from the federal model. As such, a version of the FRE was not adopted by Massachusetts.

C. Amendments

1. When Congress enacted the Rules Enabling Act, it delegated power to the Supreme Court to prescribe rules of practice and procedure and rules of evidence for cases in the lower federal courts. Rules Enabling Act. 28 U.S.C. §§ 2071-2077. These rules may not “abridge, enlarge or modify any substantive right.” Id. However, all laws in conflict with rules adopted under the Act “shall be of no further force or effect after such rules have taken effect.” Id. Under 28 USCS § 2072, Congress gave the Supreme Court the power to prescribe general rules of practice and procedure and rules of evidence for United States district courts and courts of appeals. The Supreme Court is the rule maker and is assisted by five advisory committees and one standing committee. Any rule cannot abridge, enlarge or modify any substantive right.

2. 28 USCS § 2073, establishes the process for prescribing rules of evidence. The process involves:

a. The Judicial Conference prescribes and publishes the procedures for consideration of proposed rules. The Judicial Conference consists of the Chief Justice of the Supreme Court, the Chief Judge of each Circuit, the Chief Judge of the Court of International Trade, and one district judge from each judicial circuit. 28 U.S.C. § 331. The Judicial Conference may authorize the appointment of committees to assist the Conference. Each committee will consist of members of the bench and the professional bar, and trial and appellate judges.

b. Congress has required the Judicial Conference to appoint a “standing committee on rules of practice, procedure and evidence” to assist the Conference in these duties. The Conference was also given discretion to appoint additional committees to recommend rules to be prescribed. As of 2006, the Judicial Conference has authorized five additional advisory committees, known as the Advisory Committees of Civil Rules, Criminal Rules, Appellate Rules, Bankruptcy Rules, and Evidence Rules. These committees must consist of members of the professional bar and the bench, including federal trial and appellate judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice. Each committee has a reporter, a prominent law professor, who is responsible for coordinating the committee’s agenda and drafting appropriate amendments to the rules and explanatory committee notes.

c. The meetings of any committee are advertised to enable the public to attend. The meetings are generally open to the public unless a majority of the committee determines the meeting should be closed. Each committee is required to keep minutes of their meeting, and these minutes are generally available to the public, unless it involves a closed meeting.

d. If a committee makes a recommendation for change or a new rule, the recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or separate views.

3. Under the Rules Enabling Act, the delegation of congressional authority to prescribe rules is limited in ways that keep the delegation within constitutional requirements. First, Congress did not delegate unsupervised authority to the Supreme Court, but instead retained authority to review and reject the rules promulgated before they take effect. Rules adopted by the Supreme Court must be transmitted to Congress by May 1st in the year the rule is intended to become effective. Congress then has until December 1st to act before the rule takes effect.

4. Congress has recognized the Court’s historical role in establishing procedures for conducting judicial business. However, final review power allows Congress to ensure that the rules adopted are in line with congressional policies, a power that Congress will exercise, and in fact has exercised, when necessary.

5. The Rules Enabling Act establishes intelligible principles for the Court’s promulgation and amendment of Federal Rules of Evidence in the following ways: (1) it designates the Supreme Court as the agency with authority, (2) it provides that the rules must govern evidence in the lower federal courts, and (3) it prohibits the rules from abridging, enlarging, or modifying substantive rights. It also provides that any rules affecting evidentiary privileges must be affirmatively approved by Congress. 28 USCS § 2074.

6. Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.

7. Despite the Rules Enabling Act, Congress has retained the power to enact, and has directly enacted, Rules of Evidence. In 1978, Congress adopted new Rule 412 of the Federal Rules of Evidence. In 1994, Congress not only further amended the Supreme Court’s proposed changes to Rule 412, but also adopted new Evidence Rules 413 through 415. The legislation adopting Rules 413-415 included a 150-day “waiting” period to allow the Judicial Conference to propose alternative rules addressing the issue. However, Congress rejected the Judicial Conference recommendations and allowed its own rules to become law. In addition to the normal process described above, Congress is, of course, free to create or modify rules of evidence.

8. Congress has only rarely exercised its power to create or amend a proposed rule of evidence or to suspend its operation. In 1973, for example, Congress temporarily suspended the adoption of the Federal Rules of Evidence to give itself more time to investigate the proposals. In 1978, Congress adopted new Rule 412 of the Federal Rules of Evidence. In 1994, Congress further amended the Supreme Court’s proposed amendments to Rule 412.

9. Nearly 2.5 years are required to take a proposed rule change through all the committee steps, to the Judicial Conference, to the Supreme Court, and then to Congress. Proposals concerning the Federal Rules of Evidence (other than those arising in Congress) follow these steps:

STEP 1
Suggestion for a change in the rules.(Submitted in writing to the secretary.)
At any time.
Referred by the secretary to the appropriate advisory committee.
Promptly after receipt.
Considered by the advisory committee.
Normally at the next committee meeting.
If approved, the advisory committee seeks authority from the Standing Committee to circulate to bench and bar for comment.
Normally at the same meeting or the next committee meeting.

STEP 2
Public comment period.
6 months.
Public hearings.
During the public comment period.

STEP 3
Advisory committee considers the amendment afresh in light of public comments and testimony at the hearings.
About one or two months after the close of the comment period.
Advisory committee approves amendment in final form and transmits it to the Standing Committee.
About one or two months after the close of the comment period.

STEP 4
Standing Committee approves amendment, with or without revisions, and recommends approval by the Judicial Conference.
Normally at its June meeting.

STEP 5
Judicial Conference approves amendment and transmits it to the Supreme Court.
Normally at its September session.

STEP 6
The Supreme Court prescribes the amendment.
By May 1.

STEP 7
Congress has statutory time period in which to enact legislation to reject, modify, or defer the amendment.
By December 1.

Absent Congressional action, the amendment becomes law.

1.3 The Military Rules of Evidence

A. Historical Background

1. Historically, evidentiary rules applicable in court-martial practice have been derived from several sources:

a. The Uniform Code of Military Justice, 10 U.S.C. Section 801-940;
b. The Manual for Courts-Martial;
c. Rules of Evidence recognized in the practice of criminal cases in Federal District Courts; and
d. Case law from the four service Courts of Criminal Appeals (formerly Courts of Military Review) and the United States Court of Appeals for the Armed Forces (formerly the United States Court of Military Appeals).

2. The foundation for all of this is the Constitution itself, which directs in Article 1, Section 8 that the Congress will regulate the armed forces. The UCMJ represents Congressional rulemaking and itself provides some evidentiary rules. See, e.g., Article 31 (right against self-incrimination) and Article 49 (depositions). But the most important provision lies in Article 36, which states:

a. Pretrial, trial and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States District courts, but which may not be contrary to or inconsistent with this chapter.

b. All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.

3. Article 36 serves as the underlying authority for specifically promulgating the rules of evidence which have appeared in the Manual for Courts-Martial. Although the evidentiary rules have generally been considered to have the force and effect of statutory law (due to Article 36), they must always be tested against the Constitution and the UCMJ. Conflict with either or both of those higher sources will fall the Manual provision. But if the Manual affords greater rights to the accused, then the Manual provision, rather than the Constitution or the UCMJ, will control.

B. Creation

1. In 1980, the evidentiary rules in the military underwent a dramatic change with the implementation of the Military Rules of Evidence. The MREs were the product of a two year effort participated in by the General Counsel of the Department of Defense, the United States Court of Military Appeals, the Military Departments, and the Department of Transportation. The Rules were drafted by the Evidence Working Group of the Joint Service Committee on Military Justice, which consisted of Commander James Pinnell, JAGC, U.S. Navy, then Major John Bozeman, JAGC, U.S. Army (from April 1978 to July 1978), Major Fredric Lederer, JAGC, U.S. Army (from August 1978), Major James Potuk, U.S. Air Force, Lieutenant Commander Tom Snook, U.S. Coast Guard, and Mr. Robert Mueller and Ms. Carol Wild Scott of the United States Court of Military Appeals. Mr. Andrew Effron represented the Office of the General Counsel of the Department of Defense on the Committee. The draft rules were reviewed and, as modified, approved by the Joint Service Committee on Military Justice. The Rules were approved by the General Counsel of the Department of Defense and forwarded to the White House via the Office of Management and Budget which circulated the Rules to the Departments of Justice and Transportation.

2. The original Analysis was prepared primarily by Major Fredric Lederer, U.S. Army, of the Evidence Working Group of the Joint Service Committee on Military Justice and was approved by the Joint Service Committee on Military Justice and reviewed in the Office of the General Counsel of the Department of Defense. The formal road to this major change in military practice was relatively short when compared to the lengthy process used to formulate the Federal Rules. The abbreviated process was due in large part to the fact that many of the Military Rules were simply an adoption of the Federal Rules of Evidence. Although Congress actively participated in drafting of the Federal Rules, it had no part in promulgating the Military Rules. The Rules, by executive order, were created by President Carter on March 12, 1980.

C. Amendments

1. Since the Rules became effective in 1980, they have been amended a number of times by either operation of MRE 1102 or Executive Order.

a. Under MRE 1102: “Amendments to the FRE shall apply to the MRE 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.”

b. Amendment by Executive Order: Under 10 USCS § 836, Article 36, the President may prescribe rules of evidence.

i. The Joint-Service Committee on Military Justice (JSC). The process of recommending changes to the MCM and UCMJ is controlled by the JSC under Article 146 of the UCMJ and DoD Directive 5500.17. DoD Directive 5500.17 formalizes the JSC and defines the roles, responsibilities, and procedures of the JSC in reviewing and proposing changes to the MCM and proposing legislation to amend the UCMJ.

ii. Under the Directive the Department of Defense is required to review the Manual for Courts-Martial annually, and, as appropriate, propose legislation amending the UCMJ to ensure that the MCM and UCMJ fulfill their fundamental purpose as a comprehensive body of military criminal law and procedure. The role of the JSC furthers these responsibilities. Under the direction of the General Counsel of the Department of Defense, the JSC is responsible for reviewing the MCM and proposing amendments to it and, as necessary, to the UCMJ.