[Federal Register Volume 63, Number 196 (Friday, October 9, 1998)]
[Notices]
[Page 54460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27085]



[[Page 54460]]

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DEPARTMENT OF DEFENSE

Office of the Secretary


U.S. Court of Appeals for the Armed Forces Proposed Rule Change

ACTION: Notice of proposed change to the rules of practice and 
procedure of the United States Court of Appeals for the Armed Forces.

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SUMMARY: This notice announces the following proposed new Rule 30A of 
the Rules of Practice and Procedure, United States Court of Appeals for 
the Armed Forces for public notice and comment:

Proposed New Rule 30a--Fact Finding

    (a) General. The court will normally not consider any facts outside 
of the record established at the trial and the Court of Criminal 
Appeals.
    (b) Judicial notice. In an appropriate case, the Court may take 
judicial notice of an indisputable adjudicative fact.
    (c) Remand for fact finding. If an issue concerning an unresolved 
material fact may affect the Court's resolution of the case, a party 
may request, or the Court may sua sponte order, a remand of the case or 
the record to the Court of Criminal Appeals. If the record is remanded, 
the court retains jurisdiction over the case. If the case is remanded, 
the Court does not retain jurisdiction, and a new petition for grant of 
review or certificate for review will be necessary if a party seeks 
review of the proceedings conducted on remand.
    (d) Stipulation by the parties. If an issue concerning an 
unresolved material fact may affect the Court's resolution of the case, 
the parties may stipulate to a factual matter, subject to the court's 
approval.
    (e) Other means. Where it is impracticable to remand a case to the 
Court of Criminal Appeals, the Court may order other means to develop 
relevant facts, including the appointment of a special master to hold 
hearings, if necessary, and to make such recommendations to the Court 
as are deemed appropriate.

DATES: Comments on the proposed change must be received by December 8, 
1998.

ADDRESSES: Forward written comments to Thomas F. Granahan, Clerk of the 
Court, United States Court of Appeals for the Armed Forces, 450 E 
Street, Northwest, Washington, DC 20442-0001.

FOR FURTHER INFORMATION CONTACT:
Thomas F. Granahan, Clerk of Court, telephone (202) 761-1448(x600).

SUPPLEMENTARY INFORMATION: The Rules Advisory Committee Comment on the 
proposed new Rule 30A is included as an attachment to this notice.

Rules Advisory Committee Comment on Proposed Rule 30A

    Proposed Rule 30A codifies the Court's practice concerning 
additional fact finding, and provides a counterpart to Federal Rule of 
Appellate Procedure 48, which concerns appointment of special masters. 
While requests to establish additional facts are disfavored, the Court 
has on occasion accepted affidavits, appointed special masters, 
accepted stipulations of fact, and directed that evidentiary hearings 
be held. Subsection (b) codifies the Court's discussion of judicial 
notice in United States v. Williams, 17 MJ 207 (CMA 1984). Subsection 
(c) recognizes that the Court may sometimes remand a case for the lower 
court's reconsideration in light of a contested issue of fact's 
determination, or it may sometimes choose to remand for the limited 
purpose of determining a contested fact while retaining jurisdiction 
over the case. Subsection (c) enables the Court to decide on a case-by-
case basis whether the lower court will exercise complete jurisdiction 
upon remand. Cf. D.C. Cir. R. 41(b). The Committee envisions that 
stipulations made under subsection (d) will be presented to the Court 
via a motion to attach a stipulation to the record made pursuant to 
Rule 30. Subsection (e) recognizes that, where necessary, the Court may 
order alternative means of determining facts, including the appointment 
of special masters.

    Dated: October 2, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-27085 Filed 10-8-98; 8:45 am]
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