Wednesday, April 25, 2018

What's changed by the proposed new joint CCA rules?

Global Military Justice Reform readers will recall the recent publication of a proposed revision of the Joint Rules of Appellate Procedure for the service Courts of Criminal Appeals. We have obtained the following unofficial summary of the changes the proposal would make in the current rules. According to a footnote, the document "does not reflect the views of any agency or governmental entity." Here is it:

Major proposed revisions include:

Reorganized into sections to put into more logical clusters and to mirror CAAF and Federal Rules more closely:

                I. General 
              II. Attorneys
             III. Practice Before the Court
             IV. Proceedings of the Court

Rule 1: Courts of Criminal Appeals
  • Old Rule 1. 
  • Adds new subsection 1(c) to address certification and minimum tour requirements.
Rule 2: Scope of Rules; Title
  • New rule. 
  • Makes explicit that filings must comply not only w/ Jt Rules but w/ Service Court Rules. 
  • Rename from “Courts of Criminal Appeals Rules of Practice and Procedure” (colloquially called the “Joint Rules”) to “Joint Rules of Appellate Procedure for CCAs” (JRAP) modeled after Federal Rules of Appellate Procedure (FRAP). 
Rule 3: Service Court Rules 
  • Old Rule 26 (Internal Rules) 
  • Renamed and reworded.
Rule 4: Effective Date
  • New rule 
Rule 5: Jurisdiction
  • Old Rule 2. 
  • Substantially rewritten to account for changes to CCA jurisdiction per Military Justice Act of 2016 (MJA16).
Rule 6: Scope of Review
  • Old Rule 3.
  • Subsection (a) rewritten per MJA16. 
  • Subsection (b) added in attempt to define the record on appeal in greater detail. 
Rule 7: Quorum
  • Old Rule 4. 
  • Rewritten and reorganized to follow CAAF Rules and FRAP more closely.
Rule 12: Assignment of Counsel
  • Old Rule 11 
  • Major revision to account for MJA16, including requirement for learned counsel in capital cases. 
Rule 14: Notice of Appearance and Withdrawal of Counsel
  • Old Rule 13 (Notice of Appearance of Counsel) 
  • Adds subsection 14(b) requiring motion prior to withdrawal as some CCAs already have. 
Rule 15: Filing and Service
  • Old Rule 5. 
  • Modifies Rule 15(a) to make explicit that Service Court rules will dictate where and how to file pleadings. 
Rule 19: Briefs
  • New rule.
  • Makes explicit that form, content, and space limitations will derive from Service Court rules vice JRAP. 
  • But imposes requirement for Chief Judges to confer periodically to ensure that such rules are, when practicable, consistent across CCAs. 
Rule 20: Appeals by the Accused
  • Old Rule 15. 
  • Renamed from “Assignments of Error and Briefs” for consistency with MJA16 language 
  • Adds Rule 20(b) regarding Grostefon submission. 
Rule 22: Appeals by the United States
  • Old Rule 21. 
  • Updated to account for new Article 56(d) (Appeals of Sentence by the United States).
Rule 29: En Banc Proceedings
  • Old Rule 17. 
  • Reordered and modified to:
               Track FRAP more closely
               Use phrase “in regular active service” vice “present for duty”
               Add 29(d) from FRAP.

Rule 30: Contempt
  • New rule. 
  • Provides structure both to appeal of contempt punishments from lower courts as well as new contempt proceedings at CCA level. 
Rule 31: Art. 66(f) Proceedings
  • New rule based on MCA16’s new Art 66(f)(3) (“Additional Proceedings”), which effectively codifies DuBay.

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