[Federal Register Volume 68, Number 158 (Friday, August 15, 2003)]
[Notices]
[Pages 48886-48888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20870]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States (2002 ed.) and Notice of Public Meeting.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States (2002 ed.) (MCM). The 
proposed changes constitute the 2003 annual review required by the MCM 
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' May 3, 2003. The 
proposed changes concern the rules of procedure and evidence and the 
punitive articles applicable in trials by courts-martial. These 
proposed changes have not been coordinated within the Department of 
Defense under DoD Directive 5500.1, ``Preparation and Processing of 
Legislation, Executive Orders, Proclamations, and Reports and Comments 
Thereon,'' May 21, 1964, and do not constitute the official position of 
the Department of Defense, the Military Departments, or any other 
Government agency.
    This notice also sets forth the date, time and location for the 
public meeting of the JSC to discuss the proposed changes.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 3, 2003. This notice is intended only to 
improve the internal management of the Federal Government. It is not 
intended to create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States, its 
agencies, its officers, or any person.
    In accordance with paragraph III.B.4 of the Internal Organization 
and Operating Procedures of the JSC, the committee also invites members 
of the public to suggest changes to the Manual for Courts-Martial in 
accordance with the described format.

DATES: Comments on the proposed changes must be received no later than 
October 31, 2003 to be assured consideration by the JSC. A public 
meeting will be held on October 1, 2003 at 11 a.m. in Room 808, 1501 
Wilson Boulevard, Rosslyn, VA 22209-2403.

ADDRESSES: Comments on the proposed changes should be sent to 
Lieutenant Commander James Carsten, Office of the Judge Advocate 
General, 716 Sicard St. SE., Suite 1000, Washington, DC 20374-5047.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander James Carsten, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, 716 Sicard St. SE., Suite 1000, 
Washington, DC 20374-5047, (202) 685-7298, (202) 685-7687 fax.

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows:
    Amend the Discussion section of Part I (Preamble) by twice 
replacing the word ``Transportation'' with the words ``Homeland 
Security.''
    Amend Discussion section following R.C.M. 103(19), Definition for 
10 U.S.C. 801(1) by replacing the phrase ``the General Counsel of the 
Department of Transportation'' with the phrase ``an official designated 
to serve as Judge Advocate General of the Coast Guard by the Secretary 
of Homeland Security.

[Note: The Secretary of Homeland Security has designated the Chief 
Counsel, U.S. Coast Guard, to serve as the Judge Advocate General of 
the Coast Guard.]''

    Amend R.C.M. 201(e)(2)(B) by adding the word ``general'' before 
``courts-martial'' and inserting the following at the end thereof:

``assigned or attached to a combatant command or joint command.''

    Amend R.C.M. 201(e)(2)(C), inserting the phrase ``assigned or 
attached to a joint command or joint task force,'' immediately before 
the words ``under regulations which the superior command may 
prescribe.''
    Amend the Analysis accompanying R.C.M. 201(e)(2) by inserting the 
following paragraph:
    ``200--Amendment: Subsections (e)(2)(B) and (C) were revised to 
clarify that the reciprocal jurisdiction authority of joint commanders 
designated in either subsections (A), (B), or (C), is limited. This 
limitation is intended to preclude a joint commander from convening 
courts upon members who are not assigned or attached to a joint 
command.''

[[Page 48887]]

    Amend R.C.M. 201(e)(3) by inserting the following immediately after 
the words ``armed force'':

``using the implementing regulations and procedures prescribed by the 
Secretary concerned of the military service of the accused,''

    Amend the Analysis accompanying R.C.M. 201(e)(3) by inserting the 
following paragraph:
    ``200--Amendment: This rule clarifies that when a service member is 
tried by a court-martial convened by a combatant or joint commander, 
the implementing regulations and procedures of the service to which the 
accused is a member shall apply.''
    Amend R.C.M. 201(e)(4) by adding the words ``member, or counsel'' 
after the words ``military judge.''
    Amend the Analysis accompanying R.C.M. 201(e)(4) by inserting the 
following paragraph:
    ``200--Amendment: Subsection (e)(4) was amended to clarify that 
members and counsel from different services may be detailed to a court-
martial convened by a combatant or joint commander.''
    Amend the Discussion following R.C.M. 201(e)(7)(B) by adding this 
sentence to the beginning of the Discussion:
    ``As to the authority to convene courts-martial, see R.C.M. 504.''
    Amend R.C.M. 503(a)(3) by inserting an ``s'' to the word ``court'' 
of the term ``court-martial.''
    Amend R.C.M. 503(b)(3) by inserting ``, a combatant command or 
joint command'' after the words ``A military judge from one armed force 
may be detailed to a court-martial convened in a different armed 
force''.
    Amend the Analysis accompanying R.C.M. 503(b)(3) by inserting the 
following paragraph:
    ``200--Amendment: Subsection (b)(3) was amended to clarify that a 
military judge from any service may be detailed to a court-martial 
convened by a combatant or joint commander.''
    Amend R.C.M. 503(c)(3) by inserting the phrase ``, a combatant 
command or joint command'' after the words ``A person from one armed 
force may be detailed to serve as counsel in a court-martial in a 
different armed force''.
    Amend the Analysis accompanying R.C.M. 503(c)(3) by inserting the 
following:
    ``200--Amendment: Subsection (c)(3) was amended to clarify that 
counsel from any service may be detailed to a court-martial convened by 
a combatant or joint commander.''
    Amend R.C.M. 504(b)(2)(A) by inserting the following at the end 
thereof:
    ``A subordinate joint command or joint task force is ordinarily 
considered to be `separate or detached.' ''
    Amend R.C.M. 504(b)(2)(B) by inserting the following as a third 
element thereof:
    ``(iii) In a combatant command or joint command, by the officer 
exercising general court-martial jurisdiction over the command.''
    Amend the Analysis accompanying R.C.M. 504(b)(2)(B) by inserting 
the following paragraph:
    ``200--Amendment: Subsection (b)(2)(B) was amended to clarify those 
authorized to determine when a unit is `separate or detached.' ''
    Amend R.C.M. 912(f)(4) by deleting the entirety of the fifth 
sentence and inserting the following words immediately after the words 
``When a challenge for cause has been denied'' in the fourth sentence:

``the successful use of a peremptory challenge by either party, 
excusing the challenged member from further participation in the court-
martial, shall preclude further consideration of the challenge of that 
excused member upon later review. Further,''

    Amend the Analysis to R.C.M. 912(f)(4) by inserting the following 
paragraph:
    ``200--Amendment: This rule change is intended to conform military 
practice to federal practice and limit appellate litigation when the 
challenged panel member could have been peremptorily challenged or 
actually did not participate in the trial due to a peremptory challenge 
by either party. This amendment is consistent with the President's 
lawful authority to promulgate a rule that would result in placing 
before the accused the hard choice faced by defendants in federal 
district courts--to let the challenged juror sit on the case and 
challenge the ruling on appeal or to use a peremptory challenge to 
remove the juror and ensure an impartial jury. See United States v. 
Miles, 58 M.J. 192 (C.A.A.F. 2003); United States v. Wiesen, 56 M.J. 
172 (C.A.A.F. 2001), petition for reconsideration denied, 57 M.J. 48 
(C.A.A.F. 2002); United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 
2000).
    Amend R.C.M. 1004(c)(10) by deleting the words ``death is 
authorized under the law of war for the offense'' and replacing with 
the words ``the violation constitutes a grave breach of the law of 
war.''
    Insert the following Discussion to accompany R.C.M. 1004(c)(10):
    ``Grave breaches of the laws and customs of war are defined by the 
1949 Geneva Conventions and customary international law. For the 
definition of what may constitute a grave breach see The First Geneva 
Convention, Aug. 12, 1949, art. 50, 6 U.S.T. 3114, T.I.A.S. 3362; The 
Second Geneva Convention, Aug. 12, 1949, art. 51, 6 U.S.T. 3217, 
T.I.A.S. 3363; The Third Geneva Convention, Aug. 12, 1949, art. 130, 6 
U.S.T. 3316, T.I.A.S. 3364; and The Fourth Geneva Convention, Aug. 12, 
1949, art. 147, 6 U.S.T. 3516, T.I.A.S. 3365.''
    Amend the Analysis accompanying R.C.M. 1004(c)(10) by inserting the 
following paragraph:
    ``200--Amendment: Subsection (c)(10) was amended to clarify which 
law of war violations may subject the accused to capital punishment.''
    Amend R.C.M. 1301(a) by inserting the following after the second 
sentence:
    ``Summary courts-martial shall be conducted in accordance with the 
regulations of the military service to which the accused belongs.''
    Amend the Analysis accompanying R.C.M. 1301(a) by inserting the 
following paragraph:
    ``200--Amendment: Subsection (a) was amended to clarify that 
summary courts-martial convened by a combatant or joint commander are 
to be conducted in accordance with the implementing regulations and 
procedures of the service to which the accused is a member.''
    Amend M.R.E. 317(b) replacing the word ``Transportation'' with the 
words ``Homeland Security.''
    Amend the Analysis to M.R.E. 317(b) by replacing the word 
``Transportation'' with the words ``Homeland Security.''
    Amend the Analysis to M.R.E. 801(d)(1)(B) by substituting the 
following therefor:
    ``Rule 801(d)(1)(B) makes admissible on the merits a statement 
consistent with the in-court testimony of the witness and `offered to 
rebut an express or implied charge against the declarant of recent 
fabrication or improper influence or motive.' Unlike Rule 801(d)(1)(A), 
which addresses prior inconsistent statements given under oath, the 
earlier consistent statement need not have been made under oath or at 
any type of proceeding.
    Rule 801(d)(1)(B) provides in pertinent part that a statement is 
not hearsay if the declarant testifies at the trial or hearing and is 
subject to cross-examination concerning the statement, and the 
statement is consistent with the declarant's testimony and is offered 
to rebut an express or implied charge against the declarant of recent 
fabrication or improper influence or motive. The court has interpreted 
the rule to require that a prior statement,

[[Page 48888]]

admitted as substantive evidence, precede any motive to fabricate or 
improper influence that it is offered to rebut. United States v. 
Allison, 49 M.J. 54 (C.A.A.F. 1998). Where multiple motives to 
fabricate or multiple improper influences are asserted, the statement 
need not precede all such motives or inferences, but only the one it is 
offered to rebut. United States v. Faison, 49 M.J. 59 (C.A.A.F. 1998). 
This interpretation of the rule is consistent with the Supreme Court's 
decision in Tome v. United States, 513 U.S. 150 (1995).''
    Delete the Analysis to M.R.E. 803(24).
    Delete the Analysis to M.R.E. 804(b)(5).
    Insert the following Analysis for M.R.E. 807:
    ``MRE 807 was adopted on 30 May 1998 without change from the 
Federal Rule and represents the residual exception to the hearsay rule 
formerly contained in MRE 803(24) and MRE 804(b)(5).
    ``The Rule strikes a balance between the general policy behind the 
Rules of Evidence of permitting admission of probative and reliable 
evidence and the congressional intent that `that the residual hearsay 
exceptions will be used very rarely, and only in exceptional 
circumstances.' S. Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 
1974 U.S. Code Cong. & Admin. News 7051, 7066. MRE 807 represents the 
acceptance of the so-called `catch-all' or `residual' exception to the 
hearsay rule. Because of the Constitutional concerns associated with 
hearsay statements, the courts have placed specific foundational 
requirements in order for residual hearsay to be admitted. See United 
States v. Haner, 49 M.J. 72 (C.A.A.F. 1998). These requirements are: 
necessity, materiality, reliability, and notice.
    ``The necessity prong 'essentially creates a ``best evidence'' 
requirement.' United States v. Kelley, 45 M.J. 275 (C.A.A.F. 1996) 
(citing Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 
1991)). Coupled with the rule's materiality requirement, necessity 
represents an important fact that is more than marginal or 
inconsequential and is in furtherance of the interests of justice and 
the general purposes of the rules of evidence. See United States v. 
Gonzalez, 2003 CCA Lexis 57 (A.F.Ct.Crim.App. 2003).
    ``In order to fulfill the reliability condition, the proponent of 
the statement must demonstrate that the statement has particularized 
guarantees of trustworthiness as shown from the totality of the 
circumstances. Idaho v. Wright, 497 U.S. 805 (1990). The factors 
surrounding the taking of the statement and corroboration by other 
evidence should be examined to test the statement for trustworthiness. 
The Court of Appeals for the Armed Forces has held that the Supreme 
Court's prohibition against bolstering the indicia of reliability under 
a Sixth Amendment analysis does not apply to a residual hearsay 
analysis. Therefor, in addition to evidence of the circumstances 
surrounding the taking of the statement, extrinsic evidence can be 
considered. United States v. McGrath, 39 M.J. 158 (C.M.A. 1994).''
    Amend Part IV, Punitive Articles, para. 16(c)(1)(a) by replacing 
the word ``Transportation'' with the words ``Homeland Security.''
    Amend Part V, Nonjudicial Punishment Procedure, paragraph 1(h), by 
renaming existing paragraph 1(h) to 1(i) and inserting the following 
new paragraph 1(h):
    (h) ``Applicable standards. Unless otherwise provided, the service 
regulations and procedures of the servicemember shall apply.''
    Amend the Analysis section of Part V, Nonjudicial Punishment 
Procedure, paragraph 1(h), by renaming it paragraph 1(i) and inserting 
the following as paragraph 1(h):
    ``200--Amendment: Subsection (h) is new. This subsection was added 
to clarify that nonjudicial punishment proceedings conducted in a 
combatant or joint command are to be conducted in accordance with the 
implementing regulations and procedures of the service to which the 
accused is a member.''
    Amend Part V, Nonjudicial Punishment Procedure, paragraph 2(a) by 
deleting ``Unless otherwise'' and replacing with ``As.''
    Amend Part V, Nonjudicial Punishment Procedure, paragraph 2(a) by 
inserting the following after the second sentence:
    ``Commander includes a commander of a joint command.''
    Amend Part V, Nonjudicial Punishment Procedure, paragraph 2(a) by 
inserting the phrase ``of a commander'' in the third sentence after the 
words ``the authority.''
    Amend the Analysis accompanying Part V, Nonjudicial Punishment 
Procedure, paragraph 2 by inserting the following paragraph:
    ``200--Amendment: Subsection (2) was amended to clarify the 
authority of the commander of a joint command to impose nonjudicial 
punishment upon service members of the joint command.''
    Amend Part V, Nonjudicial Punishment Procedures, paragraph 7(e), by 
replacing the word ``Transportation'' with the words ``Homeland 
Security.''
    Delete Appendix 3.1.
    Amend Appendix 21, Introduction, paragraph b (Supplementary 
Materials) by replacing the word ``Transportation'' with the words 
``Homeland Security.''
    Amend the Introduction to Appendix 22 by inserting the following at 
the end of the first sentence:

    ``(the department under which the Coast Guard was operating at that 
time.)''
    Amend the Introduction to Appendix 22 by replacing the word 
``Transportation'' located at the second paragraph with the words 
``Homeland Security.''

    Dated: August 11, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-20870 Filed 8-14-03; 8:45 am]
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