[Federal Register Volume 69, Number 57 (Wednesday, March 24, 2004)]
[Notices]
[Pages 13816-13819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6488]


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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 Summary of Public Comment Received Regarding 
Proposed Amendments to the Manual for Court-Martial, United States 
(2002 ed.).

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SUMMARY: The JSC is forwarding final proposed amendments to the Manual 
for Courts-Martial, United States (2002 ed.) (MCM) to the Department of 
Defense. The proposed changes, resulting from the JSC's 2003 annual 
review of the MCM, concern the rules of procedure applicable in trials 
by courts-martial. The 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 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.

ADDRESSES: Comments and materials received from the public are 
available for inspection or copying at the Office of the Judge Advocate 
General (Code 20), 716 Sicard St. SE., Suite 1000, Washington, DC 
20374-5047, between 8 a.m. and 3:30 p.m., Monday through Friday, except 
Federal Holidays.

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) 685-7714 fax.

SUPPLEMENTARY INFORMATION: 

Background

    On 15 August 2003, the JSC published a Notice of Proposed 
Amendments to the Manual for Courts-Martial and a Notice of Public 
Meeting to receive comment on its 2003 draft annual review of the 
Manual for Courts-Martial. On 1 October 2003, the public meeting was 
held. Eight individuals attended the public meeting. Five individuals 
provided oral comment. The JSC received two letters commenting on the 
proposed amendments.

Purpose

    The proposed changes concern the rules of procedure applicable to 
trials by courts-martial. More specifically, the proposed changes: 
Amend Rules of Court-Martial and other provisions of the Manual to 
allow for military justice to be administered in a joint command 
environment, while maintaining the applicability of specific service 
regulations/limitations according to the specific regulations of the 
accused's service; amend the rule that allows for an accused to 
challenge on appeal the denial of a challenge for cause, when the 
member was peremptorily challenged off the panel and never took part in 
the deliberations of the case; clarify the death penalty factors for 
violations of the law of war; updating analysis sections in the M.R.E. 
to harmonize current case law; and replacing ``Department of 
Transportation'' with ``Department of Homeland Security.''

Discussion of Comments and Changes

    In response to the request for public comment the JSC received oral 
and written comments. The JSC considered the public comments and is 
satisfied that the proposed amendments are appropriate to implement 
without additional modification. The JSC will

[[Page 13817]]

forward the public comments and the proposed amendments to the 
Department of Defense.
    Summaries of the oral and written comments regarding the proposed 
substantive changes follow:
    a. One comment noted that the amendments that maintained the 
applicability of service members' specific service regulations when 
they are subject to a court-martial or non-judicial punishment in a 
joint environment are appropriate. However, the comment also noted that 
the amendments were slightly ambiguous because no definitions are 
readily available for the terms ``combatant or joint commander,'' 
``joint command,'' or ``joint task force''. Comment also noted that no 
clear rationale for the amendment is apparent on the face of the 
changes.
    b. Certain comments argued that the proposed change to R.C.M. 
912(f)(4) was improper. Comments indicated that the proposed change 
would lessen public confidence in the military justice system; reduced 
oversight of the military justice process; and are only being made in 
response to perceived adverse decisions of the various courts. 
Additionally, the rationale for the amendment that is modeled after 
similar provisions in Federal criminal procedures if not valid as the 
federal system has many more preemptory challenges than exist in the 
Military Justice System.
    c. Certain comments opposed currently amending R.C.M. 1004(c)(10) 
because, as proposed, there is no rationale for the change provided on 
the face of the proposed amendments. It was noted that the amendment 
should be deferred until it can be explained and analyzed more 
thoroughly.
    The JSC has considered these comments and has determined that the 
rulemaking process is adequate, satisfies statutory requirements, and 
provides sufficient opportunity for public participation. The JSC has 
determined that its proposed amendment to the R.C.M. 912 is proper and 
consistent with the rationale in the amended analysis. The change 
aligns courts-martial procedure more closely to federal practice and 
does not change the ability of defense counsel to exercise their 
peremptory challenge or raise on appeal those challenges for cause 
denied by the military judge, when the challenged member participated 
in the court-martial.

Proposed Amendments After Consideration of Public Comment Received

    The proposed amendments to the Manual for Courts-Martial 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. Sec.  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.''
    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.N. 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 the 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 the Discussion following R.C.M. 907(b)(2)(B) by inserting, 
in the first sentence, the word ``either:'' before the words ``no 
limitation'', inserting the words ``; or child abuse offenses 
committed on or after 24 November 1998 for which a time limitation 
has been enacted that is based upon a child abuse victim reaching 
the age of 25'' after the words ``no limitation as to time'', and by 
inserting the words ``and (b)(2)'' after the words ``see Article 
43(a)''.
    Amend the Analysis accompanying R.C.M. 907(b)(2) by inserting 
the following paragraph: 200-- Amendment: The discussion was based 
upon the National Defense Authorization Act for Fiscal year 2004, 
Pub. L. No. 108-136, Sec.  551, --Stat --(2003). the amendment to 
Art. 43, UCMJ creates a statute of limitations period that extends 
until a child-victim attains the age of 25 years for certain 
specified UCMJ and federal offenses committed on or after 24 
November 1998. Due to Ex Post Facto considerations, allowance is 
required for those child abuse cases in which the five-year statute 
of limitations expired at the time the amendment to Article 43, 
UCMJ, became effective. See generally Stogner v. California, 123 S. 
Ct. 2446; 156 L. Ed. 2d 544; 2003 U.S. LEXIS 5011; 71 U.S.L.W. 4588; 
2003 Cal. Daily Op. Service 5575; 2003 Daily Journal DAR 6989; 16 
Fla. L. Weekly Fed. S 437. All child abuse offenses committed prior 
to that date would be subject to the previous five-year statute of 
limitations which would expire on the day prior to the effective 
date of the amendment--November 24, 2003. The referenced case 
permits unexpired periods to

[[Page 13818]]

be extended by the new statute, but does not allow the statute to 
renew an expired period.
    Amend R.C.M. 912(f)(43) 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 57 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, 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 created 
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. McGarth, 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 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

[[Page 13819]]

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: March 18, 2004.
L.M. Bynum,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. 04-6488 Filed 3-23-04; 8:45 am]
BILLING CODE 5001-06-M