Law Commons^™

Transforming Military Justice: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa Schenck

Faculty Articles

For the past decade there have been numerous and significant changes to the Uniform Code of Military Justice (UCMJ), the statutory basis for the military justice system. Although the Military Justice Act of 2016 made major changes to the UCMJ, the calls for change continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. Some have argued that a command-centric military justice system was outdated, and it was time to make the system look more like the federal criminal procedure system. Other critics have advocated for a military …

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims' Rights (White Paper), David A. Schlueter, Lisa Schenck

Faculty Articles

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, …

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

The Military Justice Conundrum: Justice Or Discipline?, David A. Schlueter

Faculty Articles

This article focuses on the long-standing debate over the purpose and functions of the American military justice system and whether the system is intended to provide for good order and discipline or to provide justice. The author provides a summary of the current procedures and practices in that legal system and discusses the roles of commanders and armed forces attorneys. He addresses the various thematic approaches which have been used to describe the relationship between justice and discipline and applies a crime-control and due process model to various features of the military justice system. He concludes that the system was …

The Co-Author Prenup, David A. Schlueter

Faculty Articles

Producing a book or article with co-authors is not an easy task. There are six potential issues one might consider before deciding to co-author a book or article. First, do you really want to be a co-author? Second, how many co-authors are going to be involved in the project? Having more than one co-author can make the departure of a co-author less of an issue, but each co-author needs to have a clearly defined role. Third, what role will each member of the team perform and what are those roles? Fourth, what should the co-author “marriage” look like? Multiple scenarios …

Federal Rules Pending Public Comment, David A. Schlueter

Faculty Articles

In August 2011, the Administrative Office of the United States Courts published several rules for public comment. The amendment to Rule 11 would require the judge to apprise a defendant who wishes to plead guilty that, if convicted and not a United States citizen, the defendant may be deported, denied citizenship, and denied future admission to the United States. Several amendments have been proposed for Rule 12 with reference to the appropriate times for pleadings and pretrial motions, and the consequences and standards of review for untimely motions. The change to Rule 34 is intended to conform the rule to …

Federal Rules Update: Rules Amended As Of December 2010, David A. Schlueter

Faculty Articles

Amendments to the Federal Rules of Procedure and Evidence become effective three years from initial drafting by an advisory committee. Proposed amendments are considered by the respective advisory committees, then circulated for public comment, and then forwarded to the Judicial Conference’s Standing Committee on Rules. If approved by the Judicial Conference, they are sent to the Supreme Court for any appropriate changes. If Congress makes no changes after approval by the Supreme Court, the amendments automatically become effective December 1. Two proposed amendments in 2010 did not become effective because they were not submitted to Congress under the procedure outlined …

Federal Rules Update: Amendments To The Federal Rules Of Procedure And Evidence, David A. Schlueter

Faculty Articles

In a very unusual step, Congress enacted Federal Rule of Evidence 502. This rule deals with the attorney-client and work product privileges. The proposal for this rule was driven primarily by the concern over rising litigation costs associated with discovery, especially electronic discovery. Experience had demonstrated that in complex litigation cases lawyers spend considerable time and effort to preserve privileged documents. If a privileged document is mistakenly produced, there is a risk that a court would find subject matter waiver, not only in the case at bar, but in other cases as well.

The new rule became effective on September …

Federal Rules Update: Technology-Related Rules, David A. Schlueter

Faculty Articles

In June 2009, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number of technology-related rules of criminal procedure. Criminal Rule 1 would state that the terms “telephone,” “telephonic,” or “telephonically” mean any form or live electronic voice communication. Rule 3 would allow officers to submit a complaint and supporting material electronically. Changes to Rule 4 would address electronically processed and submitted arrest warrants. Proposed new Rule 4.1 would permit magistrate judges to consider information presented electronically in deciding whether to issue a warrant or summons or approve a complaint. The amendment …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In January 2008 and June 2008, the Standing Committee on the Rules of Procedure and Evidence authorized publication for comment on a number of rules of criminal procedure. The amendment to Criminal Rule 5 would include a requirement that, in deciding whether to release or detain a defendant, the court must consider the “right of any victim to be reasonably protected from the defendant.” The change to Criminal Rule 12.3 states that the name and address of the victim should not be automatically disclosed to the defense. Criminal Rule 15 would permit an unavailable witness to be deposed outside of …

Criminal Rules Amendments Effective As Of December 2007, David A. Schlueter

Faculty Articles

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2007. Criminal Rule 11 was amended to conform the rule to the Supreme Court’s decision in United States v. Booker, which held that the sections in the federal sentencing statute that made pleas mandatory violated the fifth and sixth constitutional amendments. Criminal Rule 32 was made to conform to United States v. Booker by making it clear that the court may require the probation office to include in the presentence report information relevant to factors set out in 18 U.S.C § 3553(a). The …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In June 2007, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number amendments to the rules of criminal procedure. The amendment to Criminal Rule 7 would delete subdivision (c)(2) because it is covered in Rule 32.2(a). The change to Criminal Rule 32 would provide that the presentence report should state whether the government is seeking forfeiture of property. Amendments to Criminal Rule 32.2. would change a number of procedures related to criminal forfeiture. Criminal Rule 41 would create a two-step process for seizing and reviewing electronic storage media. Amendments to the …

Criminal Procedure Rules Pending Public Comment, David A. Schlueter

Faculty Articles

No abstract provided.

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

A number of Federal Rules of Procedure and Evidence are scheduled for amendment on December 1, 2006, unless Congress amends them further or disapproves of the changes. The amendment to Rule 5 would remove a conflict between Rule 58 and Rule 5.1(a) concerning when a defendant is entitled to a preliminary hearing. Rule 6 would undergo purely technical changes making the rule conform to the writing conventions used in the restyling of the Criminal Rules. Rule 32.1 is being amended to permit the government to produce certified copies of the judgment, warrant, or warrant application by “reliable electronic means.” Under …

Federal Rules Update: Who Makes The Rules?, David A. Schlueter

Faculty Articles

There are a number of amendments to the Federal Rules of Criminal Procedure and Evidence which were approved and would become effective as of December 1, 2005. The amendment to Criminal Rule 12.2 permits the court to exclude evidence on a defendant’s mental condition if the defense failed to submit a mental examination. The amendment to Criminal Rules 29, 33, and 34 all concern the timing of requests for extensions of time. Criminal Rule 45 will be amended to conform with the changes to Rules 29, 33, and 34. The amendment to Criminal Rule 32.1 provides a right of allocution …

Evidentiary Tactics: Selecting The “Best” Evidence To Simplify The Case, Edward J. Imwinkelried, David A. Schlueter

Faculty Articles

In the early 1990s, the American Bar Association Special Committee on Jury Comprehension released the results of surveys of jurors. These jurors had participated in complex federal and state cases. The researchers asked the jurors what complaints they had against the attorneys who had tried the cases. By a wide margin, the primary complaint was that the litigators went overboard and swamped the jury with information, particularly an excessive number of exhibits.

At trial, the attorney must exorcise the demons of complexity and confusion. There are strategies and tactics that should be employed to reduce cases to manageable portions that …

Gays And Lesbians In The Military: A Rationally Based Solution To A Legal Rubik’S Cube, David A. Schlueter

Faculty Articles

This article addresses legislation which was an attempt to accommodate homosexuals serving in the military. The author concludes that Congress had a rational basis for adopting a policy of limited accommodation. The issue of homosexuals in the armed forces presented Congress with a significant challenge to the exercise of its constitutionally-based powers to regulate the military. Prior to the enactment of the “don’t ask, don’t tell” policy, homosexuals were banned from service in the United States military. Congress had the option to continue the ban on homosexuals in the military, become fully accommodating by allowing them to serve openly, or …

Evidence, David A. Schlueter

Faculty Articles

This article addresses some of the more significant evidence cases decided by the Fifth Circuit during the survey period.' Before turning to the cases themselves, it is important to note at the outset that like other federal courts, the Fifth Circuit is generally not inclined to reverse a case on an evidentiary error. It should not be surprising then that in most of the cases which follow, the court implicitly deferred to the decision of the trial judge in deciding whether a certain piece of evidence was admissible.

The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice For The 1990'S - A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General’s School on June 24, 1971. The chair was named after Major General Hodson, who served as The Judge Advocate General from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until 1974. General Hodson served over thirty years on active duty. During that time, he was active in the American and Federal Bar Associations, and he authored much of the military …

Evidence, Fifth Circuit Symposium, David A. Schlueter

Faculty Articles

This article reviews decisions by the United States Court of Appeals for the Fifth Circuit on evidence issues and concludes that if an attorney has any hopes of obtaining appellate relief on an evidentiary issue, it is essential that the issues be presented concisely and completely to the trial court. The appellate courts will not reverse an evidentiary ruling of a trial court, even if the trial court has erred. This deference to the trial court is in recognition of the hundreds of rulings on evidence that the trial court must conduct within the course of a trial. In order …

Evidence, David A. Schlueter

Faculty Articles

From June 1987 to May 1988, the Fifth Circuit continued its reputation for careful and prudent analysis of difficult evidentiary issues.

In United States v. Torres-Flores, the court adopted a three part test for determining the admission of a mugshot photograph into evidence from the First and Second Circuits. First, the government must have a demonstrable need to introduce the photographs; second, the photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and third, the manner of introduction at trial must be such that it does not draw particular attention to …

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …

Criminal Law And Procedure, David A. Schlueter

Faculty Articles

The Fifth Circuit Court of Appeals annually decides , or in some other way disposes of, several hundred cases which might be considered to fall within the topic of criminal law and procedure. Several conclusions can be drawn from the cases decided by the Fifth Circuit Court of Appeals during this survey period.

First, the court continues to adhere to a posture which reflects trust in the trial and pretrial process. That is, like most appellate courts, it views its role not as simply another forum for correcting all of the mistakes that have occurred in either the pretrial or …

The Parent-Child Privilege: A Response To Calls For Adoption, David A. Schlueter

Faculty Articles

A popular move to recognize and codify a parent-child privilege has surfaced, despite rejection by a majority of the courts that have considered the issue. Reminded of the horrors accompanying totalitarian systems that require children to testify against their parents, some commentators have asserted that adoption of such a privilege will promote the success of the family relationship in this country and avoid the trauma of family members testifying against each other at trial.

The momentum for adopting a parent-child privilege seems to have been generated by a few courts and a number of commentators who see the privilege as …

Do We Need A Parent-Child Privilege, David A. Schlueter

Faculty Articles

This article addresses proposals to adopt a parent-child privilege, and notes that currently incriminating statements made between parents and children are admissible as evidence. However, there is a popular move to urge codification of a parent-child privilege that would protect any statements made or actions observed within the parent-child relationship. Evidentiary privileges are generally disfavored because they potentially block otherwise relevant evidence, but some relationships, such as the parent-child relationship, deserve assurance that shared confidences will be protected.

To overcome the reluctance to adopt yet another privilege, proponents of the parent-child privilege typically offer a number of justifications. These include …

Federalism And Supreme Court Review Of Expansive State Court Decisions: A Response To Unfortunate Impressions, David A. Schlueter

Faculty Articles

This article addresses the Burger Supreme Court’s approach to federalism and concludes that the Court seems to be reordering federal-state judicial relations. This reordering appears to be occurring at the expense of both state autonomy and individual liberties, especially the rights of state criminal defendants.

Although there certainly have been cases which suggest the Burger Court has a lopsided federalism, upon thorough analysis of these cases, this determination is shown to be incorrect. In fact, the present Court greatly respects state autonomy and the independence of state courts. Further, the Supremacy Clause requires the Court to serve as final arbiter …

The Court-Martial: A Historical Survey, David A. Schlueter

Faculty Articles

In this article, Captain (P) Schlueter describes the development of the legal tribunal known as the court-martial. Beginning with the use of this form of trial in the armies of imperial Rome two thousand years ago, the author traces its evolution through the Middle Ages, to Britain from the Renaissance to the American Revolution. The focus then shifts to the United States, and the focus then shifts to the present day.

Personal Jurisdiction Under Article 2, Ucmj Whither Russo, Catlow, And Brown?, David A. Schlueter

Faculty Articles

The question of personal jurisdiction for military courts in cases of invalid enlistment creates several legal issues. Invalid enlistment cases exist in a legal gray area due to the uncertainty of whether the cases should be tried by civilian or military courts. The age and competence of the enlistee are material to determining jurisdiction. The conduct of the recruiter directly affects whether the enlistee was competent. Congress amended Article 2 of the Uniform Code of Military Justice in order to address these problems. The amendment resolves many of the lingering jurisdictional issues created by Russo and Brown, but fails to …