Chain Of Command: Military Case Reveals Interesting Exception To Military Rule Of Evidence 606(b)

The recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Matthews, 68 M.J. 29 (U.S. Armed Forces 2009), was fairly straightforward with regard to Military Rule of Evidence 606(b). An appellant who was convicted by a military judge sitting alone as a general court-martial appealed to the United States Army Court of Criminal Appeals. As part of that appeal, the military judge testified regarding his deliberations, which later resulted in the United States Court of Appeals for the Armed Forces remanding the case because it held that the portions of the military judge's testimony in which he explained his deliberative process and reasoning at the court-martial were unreviewable evidence that could not have been considered by the Court of Criminal Appeals (The court did not reverse because it did not know the extent to which the Court of Criminal Appeals considered the military judge's testimony). Before reaching this conclusion, the court rejected the argument that the military judge's testimony was inadmissible under Military Rule of Evidence 606(b). This makes sense because Federal Rule of Evidence 606(b) is the anti-jury impeachment rule, and its military counterpart, Military Rule of Evidence 606(b), is the anti-military commission member (i.e., military juror) impeachment rule, and the military judge was a judge. What is interesting about Military Rule of Evidence 606(b), though, is that it has one 

Military Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of the findings or sentence, a member may not testify as to any matter or statement occurring during the course of the deliberations of the members of the court-martial or to the effect of anything upon the member's or any other member's mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member's mental process in connection therewith, except that a member may testify on the question whether extraneous prejudicial information was improperly brought to the attention of the members of the court-martial, whether any outside influence was improperly brought to bear upon any member, or whether there was unlawful command influence . Nor may the member's affidavit or evidence of any statement by the member concerning a matter about which the member would be precluded from testifying be received for these purposes.

For the most part, Military Rule of Evidence 606(b) mirrors Federal Rule of Evidence 606(b), although the latter contains a new exception which the former does not. Military Rule of Evidence 606(b), however, has an exception that Federal Rule of Evidence 606(b) does not have. This is the exception for "unlawful command influence."  

And military courts have used this exception. For instance, in United States v. Carr, 18 M.J. 297 (CMA 1984), military commission members were allowed to impeach their verdict after they found James Carr guilty of rape and possession of marijuana. This was because there was evidence "that the president of the court-martial had pressured the other members to vote for conviction, contrary to the instructions they had received." The court found that this evidence formed the proper predicate for jury impeachment because "[t]he president's exercise of the influence of his rank on the members of the court would fall within th[e] exception" for "unlawful influence command."

-CM