An Experienced Military Lawyer Knows the Military Rules of Evidence

When I was a young military lawyer just starting out in the Army JAG Corps, I tried reading the Military Rules of Evidence front to back. Needless to say, I didn't learn anything that way, nor did I retain anything useful.

           It takes years of practice, research and being in court before a military lawyer has a sufficient familiarity with the Military Rules of Evidence to be an effective trial lawyer. The rules continue to evolve as well, so keeping up with changes and understanding why the rules changed and how they may benefit a client is crucial.

           A recent but subtle change to the Military Rules of Evidence, also referred to as the MREs, involves character evidence. Years ago, under Military Rule of Evidence 404(b) it used to be that a prosecutor could bring up all sorts of bad facts or bad character statements about the service member client, ask the question in front of the jury and then if there was an objection, state the justification to the Judge. But... the question had already been asked in front of the jury... planting the seed of doubt that the service member was of questionable moral character. 

           Now, the prosecution has to give written notice of any prior bad conduct by the military service member that it wants to use in open court well in advance of trial. The prosecution is required by the rules to say what conduct it thinks it may use, and just as importantly, it has to say why it wants to use it, and how it complies with the Military Rules of Evidence. Your military lawyer should, indeed they must, challenge this evidence in court before the start of your trial and keep the prosecution within the bounds of the Rules of Evidence.

Why is this important? It is important because the law affords you, as the servicemember, protections and it takes an experienced military defense lawyer to stand up the military officers who as prosecutors and tell the Judge why they are wrong. A military trial is not supposed to be a smear campaign against you, and a civilian lawyer, someone who is outside the system, has both the experience and knowledge to lead the Judge through the correct arguments. 

** IRL ** - Knowing the evolution of the rules of evidence and how they work in practice isn't just a nice theory, it can make or break a case for an Accused. In a recent Army Court Martial, the prosecutor filed a motion to admit alleged bad conduct by the service member client. Not only did the Judge find that the conduct was completely irrelevant to the charges and it was kept out of court, but the Judge noted that the prosecution lacked the ability to prove that it had even occurred in the first place. This meant that the prosecution could not simply call witnesses to say demeaning things about the client in order to leave a bad impression about the client's leadership with the jury. This ruling threw the prosectors for a loop, they had to revise their case at the last minute, and the client was found not guilty of all charges.