Rules of Evidence changes coming to a location near you

In May 2023, the Federal Rules Advisory Committees recommended changes were forwarded to Congress for “approval.” Included are two evidence rules changes that will likely become effective in courts-martial during 2025. The Military Rules of Evidence adopt the Federal Rules 18 months after they are effective. The new Federal rule is going to be effective 1 December 2023.

Two important changes will affect Mil. R. Evid. 106 (completeness) and 702 (expert testimony).

Daniel P. Elms, Rule of Evidence 702 Is Changing Faster Than You Think. ABA May 24, 2023, discusses the pending Rule 702 change. According to Elms, part of the rationale for change to 702 is,

“Then, in the spirit of a hundred online memes, the advisory committee told our federal courts “You’re Doing It Wrong.” The report states that in “a fair number of cases,” courts have admitted expert testimony “even though the proponent had not satisfied the Rule 702(b) and (d) requirements by a preponderance of evidence—essentially treating those questions as ones of weight rather than admissibility[.]” The advisory committee opined that such an approach was contrary to U.S. Supreme Court holdings and Rule 104(a).”

You can find the change forwarded in April to Congress here (along with a change to Fed. R. Evid. 106). Unlike the JSC, the FRAC has a robust “history” of the rule changes proposed and/or adopted. As best I can tell, the JSC hides its lack of transparency behind an exception to the Federal Advisory Committees Act or that the Act doesn’t apply to them. Under the Act

FAC committees can be created by the president, Congress or federal departments or agencies and must meet these basic requirements:

• Meetings must be open to the public and the public must be permitted to present their views
  • The JSC does have an annual public meeting, but only to receive comments or suggestions
• All meeting minutes and reports must be available for public access
  • Not done
• The public must be notified of meetings by advertisement in the Federal Register
  • Done at least once a year for proposed amendments to the MCM
• Committee membership must be balanced by points of view

What may be of interest to military defense counsel is Elms’s comment that,

“Unsurprisingly, litigants took a keen interest in the proposed amendment and the advisory committee’s comments. But perhaps less predictably, courts began to rely on those comments to inform their decisions on pending Rule 702 admissibility issues. In Sardis v. Overhead Door Corp., for example, the appellate court cited the advisory committee’s admonishments in its decision reversing the district court’s admission of expert testimony on shipping container design. And in Bishop v. Triumph Motorcycles America Ltd., the district court followed the path set by Sardis and did the same regarding expert testimony on motorcycle design and safety.”

Referring to the FRAC’s robust documentation of change can sometimes help litigating issues at trial. When Mil. R. Evid. 413/414 changed, some of us used the FRAC “package” in litigating admissibility—sometimes successfully.

Experts are the bread and butter of sexual assault cases for both the prosecution and the defense. DNA and toxicology are generally reliable because they are based on some real underlying hard science. The potential for error comes from the collection process, the chain of custody with possible contamination, and errors at the testing stage. Another potential for error with the hard science of DNA is that of transference and trace DNA. There are innocent explanations for why an accused’s DNA may be on an alleged victims clothing or person. The possibility of unreliable expert testimony–infused with bias–comes from the soft “sciences” like victimology, grooming, and other so called reliable studies. Exposing error or unreliability are challenges for the military defense lawyer. This challenge is especially hard because the military has a low standard for expertise.