Exculpatory No in Military Law License to Lie or Legal Loophole Closed.

摘要

This is a comparative analysis of the exculpatory no doctrine in the federal circuit courts. It concludes that continued recognition of this defense to a violation of Article 107, UCMJ is no longer warranted in military law. The Fifth and Sixth Circuit United States Courts of Appeals have rejected this exception as not conforming to the established rules of law. This defense has gained only limited acceptance among the other federal circuits. The legal rationale advocated in support of this exception is not longer persuasive in light of United States Supreme Court decisions recognized as controlling in this area by the United States Court of Military Appeals. The doctrine is also inconsistent with basic tenets of military law. For these reasons the Court of Military Appeals should no longer place reliance on federal court recognition as justification for the continued acceptance of exculpatory no in military law. Military case law has severely restricted the availability of this defense. Complete renunciation of this doctrine in military justice practice will promote judicial economy and efficiency by removing the need to consider an archaic and ill-advised exception to the clear rule of law.