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The Military Rules of Evidence (MRE) have been a permanent feature of courts-martial practice for more than thirty years. While practitioners today are comfortable with the rules and accept their permanence in military criminal trials, their adoption in 1980 was the end result of a long and contentious struggle. This is the story of the origin of the MRE and their adoption at courts-martial.
Prior to 1975, when the Congress enacted legislation establishing the Federal Rules of Evidence (FRE), the admissibility of evidence in U.S. courts was governed by Federal common law. Similarly, evidentiary rules at courtsmartial were governed by a common law of evidence that had emerged from successive decisions from the Court of Military Appeals (COMA) and, to a lesser extent, the inferior service courts. The 1969 Manual for Courts-Martial (MCM), contained these judicial decisions, but it was difficult to know whether the MCM was adopting these "decisions as positive law or merely setting them forth for the edification of the reader."1
Under the Uniform Code of Military Justice (UCMJ), Article 36, courts-martial "shall, so far as . . . practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts."2 Recognizing that the codification of the Federal common law rules of evidence meant that the Armed Forces should consider codifying military evidentiary rules, Colonel (COL) Wayne E. Alley, the then-Chief of Criminal Law in the Office of The Judge Advocate General, decided that "Military Rules of Evidence" should be created and adopted by the Armed Forces.
With the concurrence of Major General (MG) Wilton B. Persons, The Army Judge Advocate General, COL Alley put his idea in a written memorandum, which he submitted to the Department of Defense (DoD) Joint Service Committee on Military Justice (known colloquially as the "JSC").3 Colonel Alley, who had recently assumed the chairmanship of the JSC, "formally proposed" that the services "revise the Manual for Courts-Martial to adopt, to the extent practicable, the new civilian rules."4
Colonel Alley's chief argument was that Article 36 required a codification of the military rules to bring courtsmartial practice in line with federal civilian practice under the new FRE. A second important reason, as already indicated, was...