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Proposed Amendments to the Military Commissions Act: (2) Relevancy and Hearsay Rules

by Professor Will Huhn on July 29, 2009

in Wilson Huhn

     As noted in yesterday's post, the 2010 Military Appropriations Bill (S. 1390)adopted by the Senate last week makes a number of modifications to the Military Commissions Act in order to bring that law into conformity with our obligations under the Geneva Conventions.  This post describes changes that the proposed law would make to the hearsay and relevancy rules in trials of suspected terrorists before military commissions.

     In Hamdan v. Rumsfeld (2006) the Supreme Court ruled that unless there is some strong justification offered by the government, the military commissions that try suspected terrorists for war crimes had to follow the same procedures that would be used in the court martial of U.S. military personnel in military courts under the Uniform Code of Military Justice.  The Court explained that the military commissions were not created so that it would be easier to convict people of terrorism, but simply because the regular military and civilian courts might not have jurisdiction over these crimes.  The Court said:

The military commission was not born of a desire to dispense a more summary form of justice than is afforded by courts-martial; it developed, rather, as a tribunal of necessity to be employed when courts-martial lacked jurisdiction over either the accused or the subject matter.

     One particular problem that concerned the Supreme Court in Hamdan involved the rules of evidence that the military intended to follow in these trials.  The Military Commissions Act of 2006 contains very loose rules regarding the admissibility of evidence.  For example, here is the basic rule of evidence under the Military Commissions Act:

     Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person.

     This rule by itself essentially dispenses with every other rule of evidence – it is the only rule that counts.  This provision is mandatory upon the military court – evidence with virtually any probative value "shall" be admitted.  The law means that evidence that "would have probative value to a reasonable person" must be admitted even if it would normally be excluded by other rules of evidence such as the rule limiting the admissibility of evidence of character or reputation, or the rule against the admission of evidence of prior bad acts. 

     Another section of the Military Commissions Act specifically deals with hearsay, and like the relevancy rule it stacks the deck against the defendant.  It provides:

Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.

     In other words, under the Military Commissions Act hearsay is presumptively admissible unless the defendant can somehow prove that the evidence is unreliable.  This might be pretty hard for a prisoner to prove!

     The 2010 Military Appropriations Act makes changes the rules regarding relevancy and hearsay.  First, with respect to the relevancy rule, the proposed law states:

     The procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights: … (E) To the suppression of evidence that is not reliable or probative.

This changes the law in a very significant way.  The relevancy rule is now a minimum requirement for evidence to pass – not a rule that removes all other legal barriers to admissibility.  It is a right of the defendant, not a loophole to be exploited by the prosecution.

     The proposed bill also makes drastic changes to the rule on hearsay.  The new law places the burden on the government to justify using hearsay against the defendant.  The bill states:

(D) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission only if–

(i) the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the proponent's intention to offer the evidence, and the particulars of the evidence (including information on the circumstances under which the evidence was obtained); and

(ii) the military judge, after taking into account all of the circumstances surrounding the taking of the statement, the degree to which the statement is corroborated, and the indicia of reliability within the statement itself, determines that–

(I) the statement is offered as evidence of a material fact;

(II) either–

(aa) direct testimony from the witness is not available as a practical matter, taking into consideration the physical location of the witness and the unique circumstances of the conduct of military and intelligence operations during hostilities; or

(bb) the production of the witness would have an adverse impact on military or intelligence operations; and

(III) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.

     The rules of evidence contained in this bill are far more likely to be found to be consistent with the Constitution and our treaty obligations than the original provisions of the Military Commissions Act are. 

     Tomorrow I will discuss the change that the Military Appropriations bill makes to the rules regarding the defendant's right to counsel.




Specifically, the Act contains a very broad allows the admission into evidence of any material that the Court finds is

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