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Univ. of South Carolina School of Law

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Monday, November 18, 2013

I'm a Soldier: Proposal Would Eliminate Good Soldier Defense From Military Rules of Evidence

According to a press release from earlier today,

U.S. Senators Senator Deb Fischer (R-Neb.), Claire McCaskill (D-Mo.) and Kelly Ayotte (R-N.H.) announced a new set of bipartisan provisions to strengthen and augment the already historic reform package that passed the Armed Services Committee in June to curb military sexual assault....

The amendment includes a host of reforms, attached and available online HERE, and including:

•Eliminating the Good Soldier Defense

â—¦Modifies the Military Rules of Evidence to prevent defendants from using good military character unless it is directly relevant to an element of the crime for which they are charged.

So, what is this so-called good soldier defense?

The answer is that you can find it in any number of military cases. For example, in United States v. McClure, 29 C.M.R. 368 (C.M.A. 1960), defense counsel

called two sergeants under whom he had served and, in response to questions, they testified as to the manner in which he had performed his military duties. One sergeant declared that the accused was a good soldier who was above the average of the rest of the men, and that he performed his assigned tasks very well. The other expressed the view that the accused carried out his duties in an excellent manner.

So, basically, in any military justice case, whether it involves a crime of violence, deception, or anything else, a defendant can present evidence that he is a good soldier. This is different from Federal Rule of Evidence 404, which only allows defendants to present evidence of their good character for a pertinent character trait. Ostensibly, the current proposal would do the same in military justice cases.

Of course, I guess that this begs the question of when evidence that a person is a good soldier wouldn't be pertinent. Presumably, isn't part of being a good soldier being willing to follow authority, being honest, having integrity, only using violence when necessary, etc.? In other words, can you think of a crime where evidence that the defendant is a good soldier wouldn't be relevant to the defense?

-CM

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