When Enough Is Enough – Another Look at the Legal History of Pattern Instructions in Military Law

I wrapped up my last post (here) by referencing United States v. Rinehart, 8 U.S.C.M.A. 402 (1953), a decision that finally prohibited the Manual for Courts-Martial (MCM) from military jury, known as a panel, deliberations. The Rinehart decision is an interesting one. It is an example of a court that has grown frustrated with the military judiciary’s glacial pace toward civilianizing the military justice system to the extent practical. It is also an example of the Court’s inner struggle to balance military tradition with traditional constitutional principles.

Until the Rinehart decision, it was commonplace for court members to reference the MCM either in the findings or sentencing phase of a court-martial. In fact, early special courts-martial constituted without a law officer required the President of the panel (the highest ranking member of the military jury), a non-lawyer, to properly instruct the rest of the panel on the law, which required referencing the MCM. From a tradition standpoint, this makes sense. Lawyers historically were only involved in the JAG Department at headquarters. Courts-martial convened in the field were administrative proceedings, administered by officers, not lawyers (or lawyers in regular line billets). Thus, it went without saying that the MCM was a useful guide.

The Uniform Code of Military Justice changed all that. In early decisions, the Court criticized the use of MCMs and other legal authorities (other than instructions by the law officer), but stopped short of prohibiting its use. Rinehart did just that.

The Accused in Rinehart, a Lieutenant Commander in the United States Navy, pleaded guilty to a series of offenses. In response to the defense’s sentencing case, the Government made numerous references to the MCM for the panel to consider in deliberations.

The Court seemed to dispose of the issue simple enough. In previous decisions, it discouraged the practice of referencing outside sources. The MCM was no different than those previously reference sources. But the Court went on. It could not “sanction a practice which permits court members to rummage through a treatise on military law, such as the Manual, indiscriminately rejecting and applying a myriad of principles – judicial and otherwise – contained therein.”

The Court then explained its reasoning for this conclusion. Throughout its history, the Court had expressly or impliedly invalidated many of the passages contained in the MCM. Members would not know that. In addition, the Court had repeatedly emphasized that the role of the law officer was to be similar to that of a civilian judge. His instructions must be the law that panel members followed—and nothing else. Thirdly, members were not lawyers. “A treatise on the law in the hands of a nonlawyer creates a situation which is fraught with potential harm, especially when one’s life and liberty hang in the balance.”

Earlier decisions had tread lightly when it came to invalidating military tradition based upon the principles of the UCMJ or constitutional law. Rinehart was different:

We are fully aware that the change in the system of military law occasioned by this decision represents a substantial departure from prior service practices. However, we cannot but feel that such change was imperatively needed if the system of military law is to assume and maintain the high and respected place that it deserves in the jurisprudence of our free society. Prior to the Code courts-martial were neither instructed on the elements of the offense charged nor the principles of law applicable to the case. The deliberations of the court were in camera and a genuine need then existed for the use of the Manual by the court members in determining the law to be applied. However, with the advent of the Uniform Code of Military Justice many of the problems which previously existed under th old system disappeared. Congress created the role of law officer and fashioned him in the image of a civilian judge. He was charged with the responsibility of instructing the court on the elements of the offense and the applicable principles of law in order that informed and intelligent findings and sentence could be reached. In a word, he was made a fountainhead of the law in the court-martial scheme of things. The sum total of these and other remedial changes inaugurated by the Code was to bring court-martial procedure, wherever possible, into conformity with that prevailing in civilian criminal courts. We believe that military law under the Code has come of age and the time has come when the use of the Manual by the court-martial must end.

Judge Latimer dissented. His dissent was grounded in tradition and the practicalities of military practice. One of the interesting things about this decision is that it is an anecdote of the competing philosophies concerning due process, constitutional law, and the civilianization of military law that the Court has continued to wrestle with. For an early discussion on these philosophies, readers should check out John T. Willis, The Constitution, The Court of Military Appeals, and the Future, 57 Mil. L. Rev. 27 (1972). But, in summary, Judge Latimer’s reasoning was essentially that the President has unlimited authority to do what he wants concerning the military, unless expressly prohibited by Congress or directed otherwise.

The Rinehart decision is a great example of the Court’s struggle to balance military necessity and tradition with the evolution of military law into the constitutional law sphere. It also explains some of the story behind the development of pattern military instructions in the military justice system, and perhaps the eventual genesis of the Military Judge’s Benchbook. Though I’m focusing on a different research area, this seems like a story worth exploring further. If nothing else, it possibly teaches us military practitioners a bit of why we do what we do.

For those interested in reading more about this issue, I recommend A. Clayton James, Jr., Military Law – Use of Manual for Courts-Martial by Courts-Martial Member Disallowed, 19 La. L. Rev. 715 (1959).

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