United States v. Forbes

I respectfully dissent from (1) the extensive rulemaking by the majority, and (2) the majority’s failure to analyze the harmless error rule in the context of this case. Article 59(a), Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 859(a) (2000). I agree with Judge Learned Hand that “[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” Lakeside v. Oregon, 435 U.S. 333, 339, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978).

Dissatisfied with Military Rule of Evidence (M.R.E.) 301(g), the majority today amends…