TRIAL STAGES:MISCELLANEOUS MATTERS: Manual for Courts-Martial: Force and Effect


2011 (September Term)

United States v. Ali, 71 M.J. 256 (MCM explanations of offenses are not binding on appellate courts, but are generally treated as persuasive authority).

2010 (September Term)

United States v. Fosler, 70 M.J. 225 (although Congress delegated to the President certain rulemaking authority under Article 36, UCMJ, not everything in the MCM represents an exercise of that authority, and the President does not have the authority to decide questions of substantive criminal law). 

(some of the MCM is merely explanatory or hortatory; the sample specifications and drafters’ analysis are included among these categories and do not purport to be binding).

(the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element).

2009 (September Term)

United States v. Contreras, 69 M.J. 120 (the President’s analysis of the punitive articles is persuasive, but not binding, authority; moreover, where the President’s narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, an appellate court will not disturb the President’s narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution).  

 

(the President’s analysis of the punitive articles is persuasive authority and may potentially further limit the application of some punitive articles to military members only, just as he limited the application of the housebreaking statute to cases where the underlying offense was something other than a purely military offense).

 

2008 (September Term)

United States v. Paige, 67 M.J. 442 (although the discussion section of the MCM is non-binding, this statement reflects applicable judicial precedent). 


United States v. Miller, 67 M.J. 385 (although MCM explanations of offenses are not binding on the CAAF, they are generally treated as persuasive authority, to be evaluated in light of the CAAF’s precedent). 


United States v. Ranney, 67 M.J. 297 (although MCM explanations of offenses are not binding on the CAAF, they are generally treated as persuasive authority, to be evaluated in light of the CAAF’s precedent).


United States v. Stephens, 67 M.J. 233 (a rule or other provision of the MCM cannot sanction a violation of an appellant’s constitutional rights). 

 

United States v. Miller, 67 M.J. 87 (although MCM explanations of offenses are not binding on the CAAF, they are generally treated as persuasive authority, to be evaluated in light of the CAAF’s precedent).  


2008 (Transition)
 

United States v. Mitchell, 66 M.J. 176 (the interpretation of substantive offenses in Part IV of the MCM is not binding on the judiciary, which has the ultimate responsibility of interpreting substantive offenses under the UCMJ; although not binding, courts apply the MCM guidance when the MCM reflects an accurate interpretation of the law). 

 

(to the extent that there is tension between the interpretative guidance in the MCM and the case law of the CAAF, the CAAF adheres to its case law). 


2007

 
United States v. Moran, 65 M.J. 178 (although not binding, the Discussion to the Rules for Courts-Martial reflects applicable judicial precedent).


2000

United States v. Stevenson, 53 MJ 257 (in view of the receipt of military pay and the potential for further active duty service by members who are temporarily removed from active duty by reason of disability [Temporary Disability Retired List], MRE 312(f) does apply and evidence obtained in compliance with that rule may be used in a court-martial of a person on the Temporary Disability Retired List).


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