[Federal Register Volume 80, Number 23 (Wednesday, February 4, 2015)]
[Notices]
[Pages 6057-6060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02149]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2014-OS-0140]


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC), Department 
of Defense.

ACTION: Notice of response to public comments on proposed amendments to 
the Manual for Courts-Martial, United States (2012 ed.).

-----------------------------------------------------------------------

SUMMARY: The Joint Service Committee on Military Justice (JSC) is 
publishing final proposed amendments to the Manual for Courts-Martial, 
United States (MCM). The proposed changes concern the rules of 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, Processing and 
Coordinating Legislation, Executive Orders, Proclamations, Views 
Letters and Testimony,'' June 15, 2007, and do not constitute the 
official position of the Department of Defense, the Military 
Departments, or any other Government agency.

FOR FURTHER INFORMATION CONTACT: Capt Harlye S. Carlton, USMC, (703) 
963-9299 or [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On October 3, 2014 (79 FR 59938-59959), the JSC published a Notice 
of Proposed Amendments concerning the rules of procedure and evidence 
and the punitive articles applicable in trials by courts-martial and a 
Notice of Public Meeting to receive comments on these proposals. The 
public meeting was held on October 29, 2014. Two members of the public 
provided oral comments at the public meeting, with one of the members 
of the public also submitting a written comment. Additionally, several 
written comments were received electronically. All comments were 
considered by the JSC.
    Public Comments: Comments and materials received from the public 
are available under Docket ID Number DoD-2014-OS-0140-0001, Federal 
Register Number 2014-23546, and at the following link http://www.regulations.gov/#!documentDetail;D=DOD-2014-OS-0140-0001.

Discussion of Comments and Changes

    The JSC considered each public comment and made some modifications 
to the proposed amendments accordingly. Additionally, the JSC added 
proposed amendments to implement provisions in the National Defense 
Authorization Act for Fiscal Year 2015, Public Law 113-291, December 
19, 2014 (FY15 NDAA). Comments that were submitted that are outside the 
scope of these proposed changes will be considered as part of the JSC's 
2015 annual review of the MCM. The JSC will forward the public comments 
and proposed amendments to the Department of Defense. The public 
comments regarding the proposed changes and a summary of proposed 
amendments to implement FY15 NDAA provisions follow:
    a. Several comments recommended adding a requirement to RCM 305(i) 
that a neutral and detached officer should inquire whether a victim has 
been contacted and provided the opportunity to be heard during the 7-
day review of pretrial confinement. Comments also recommended that a 
neutral and detached officer should inquire whether the victim has 
waived the right to be heard. The JSC has adopted this proposal in part 
as follows:
    --R.C.M. 305(i)(2)(D) is amended to read as follows:

    ``Memorandum. The 7-day reviewing officer's conclusions, 
including the factual findings on which they are based, shall be set 
forth in a written memorandum. The memorandum shall also state 
whether the victim was notified of the review, was given the 
opportunity to confer with the representative of the command or 
counsel for the government, and was given a reasonable opportunity 
to be heard. A copy of the memorandum and all documents considered 
by the 7-day reviewing officer shall be maintained in accordance 
with regulations prescribed by the Secretary concerned and provided 
to the accused or the Government on request.''

    b. Two comments recommended amending RCM 702 to clarify that the

[[Page 6058]]

right of a victim not to testify at the Article 32 preliminary hearing 
may not be circumvented by ordering a pretrial deposition. The JSC has 
adopted this proposal in part and proposed additional amendments to RCM 
702 to implement Section 532 of the FY15 NDAA as follows:
    --R.C.M. 702(a) is amended to read as follows:

    ``(a) In general. A deposition may be ordered whenever, after 
preferral of charges, due to exceptional circumstances of the case 
it is in the interest of justice that the testimony of a prospective 
witness be taken and preserved for use at a preliminary hearing 
under Article 32 or a court-martial. A victim's declination to 
testify at a preliminary hearing or a victim's declination to submit 
to pretrial interviews shall not, by themselves, be considered 
exceptional circumstances. In accordance with subsection (b) of this 
rule below, the convening authority or military judge may order a 
deposition of a victim only if it is determined, by a preponderance 
of the evidence, that the victim will not be available to testify at 
court-martial.''

    --R.C.M. 702(c)(2) is amended to read as follows:

    ``(2) Contents of request. A request for a deposition shall 
include:
    (A) The name and address of the person whose deposition is 
requested, or, if the name of the person is unknown, a description 
of the office or position of the person;
    (B) A statement of the matters on which the person is to be 
examined; and
    (C) Whether an oral or written deposition is requested.''

    --R.C.M. 702(c)(3)(A) is amended to read as follows:

    ``(A) Upon receipt of a request for a deposition, the convening 
authority or military judge shall determine whether the requesting 
party has shown, by a preponderance of the evidence, that due to 
exceptional circumstances and in the interest of justice, the 
testimony of the prospective witness must be taken and preserved for 
use at a preliminary hearing under Article 32 or court-martial.''

    --R.C.M. 702(d)(1) is amended to read as follows:

    ``(1) Detail of deposition officer. When a request for a 
deposition is approved, the convening authority shall detail a judge 
advocate certified under Art. 27(b) to serve as deposition officer. 
When the appointment of a judge advocate as deposition officer is 
not practicable, the convening authority may detail an impartial 
commissioned officer or appropriate civil officer authorized to 
administer oaths, not the accuser, to serve as deposition officer. 
If the deposition officer is not a judge advocate, an impartial 
judge advocate certified under Art. 27(b) shall be made available to 
provide legal advice to the deposition officer.''

    c. Several comments recommended changes to the new proposed RCM 
1001A, indicating that victims should have the right to testify under 
oath or allocute in an unsworn statement. The JSC adopted these 
proposals in part as follows:
    --A new rule, R.C.M. 1001A, is inserted to read as follows:

    ``Rule 1001A. Crime victims and presentencing
    (a) In general. A crime victim of an offense of which the 
accused has been found guilty has the right to be reasonably heard 
at a sentencing hearing relating to that offense. A victim under 
this rule is not considered a witness for purposes of Article 42(b). 
Trial counsel shall ensure the victim is aware of the opportunity to 
exercise that right. If the victim exercises the right to be 
reasonably heard, the victim shall be called by the court. This 
right is independent of whether the victim testified during findings 
or is called to testify under R.C.M. 1001.
    (b) Definitions.
    (1) Crime victim. For purposes of this rule, a ``crime victim'' 
is an individual who has suffered direct physical, emotional, or 
pecuniary harm as a result of the commission of an offense of which 
the accused was found guilty.
    (2) Victim Impact. For the purposes of this rule ``victim 
impact'' includes any financial, social, psychological, or medical 
impact on the victim directly relating to or arising from the 
offense of which the accused has been found guilty.
    (3) Mitigation. For the purposes of this rule ``mitigation'' 
includes a matter to lessen the punishment to be adjudged by the 
court-martial or to furnish grounds for a recommendation of 
clemency.
    (4) Right to be reasonably heard.
    (A) Capital cases. In capital cases, for purposes of this rule 
the ``right to be reasonably heard'' means the right to make a sworn 
statement.
    (B) Non-capital cases. In non-capital cases, for purposes of 
this rule the ``right to be reasonably heard'' means the right to 
make a sworn or unsworn statement.
    (c) Content of statement. The content of statements made under 
subsections (d) and (e) of this rule may include victim impact or 
matters in mitigation.
    (d) Sworn statement. The victim may give a sworn statement under 
this rule and shall be subject to cross-examination concerning it by 
the trial counsel or defense counsel or examination on it by the 
court-martial, or all or any of the three. When a victim is under 18 
years of age, incompetent, incapacitated, or deceased, the sworn 
statement may be made by the victim's designee appointed under 
R.C.M. 801(a)(6). Additionally, a victim under 18 years of age may 
elect to make a sworn statement.
    (e) Unsworn statement. The victim may make an unsworn statement 
and may not be cross-examined by the trial counsel or defense 
counsel upon it or examined upon it by the court-martial. The 
prosecution or defense may, however, rebut any statements of facts 
therein. The unsworn statement may be oral, written, or both. When a 
victim is under 18 years of age, incompetent, incapacitated, or 
deceased, the unsworn statement may be made by the victim's designee 
appointed under R.C.M. 801(a)(6). Additionally, a victim under 18 
years of age may elect to make an unsworn statement.
    (1) Procedure for presenting unsworn statement. After the 
announcement of findings, a victim who would like to present an 
unsworn statement shall provide a copy to the trial counsel, defense 
counsel, and military judge. The military judge may waive this 
requirement for good cause shown.
    (2) Upon good cause shown, the military judge may permit the 
victim's counsel to deliver all or part of the victim's unsworn 
statement.

    d. The JSC has proposed an amendment to MRE 404(2)(A) to implement 
Section 536 of the FY15 NDAA as follows:
    --Mil. R. Evid. 404(a)(2)(A) is amended to read as follows:

    ``(A) The accused may offer evidence of the accused's pertinent 
trait, and if the evidence is admitted, the prosecution may offer 
evidence to rebut it. General military character is not a pertinent 
trait for the purposes of showing the probability of innocence of 
the accused for the following offenses under the UCMJ:
    (i) Articles 120-123a;
    (ii) Articles 125-127;
    (iii) Articles 129-132;
    (iv) Any other offense in which evidence of general military 
character of the accused is not relevant to any element of an 
offense for which the accused has been charged; or
    (v) An attempt or conspiracy to commit one of the above 
offenses.''

    e. Several comments recommended changes to MREs 412, 513, and 514. 
Several comments recommended modifying MRE 513(e)(2) to allow for a 
patient's counsel to motion the military judge for a closed hearing. 
Several comments recommended deleting language stating that the 
opportunity to attend and be heard at MRE 513 hearings is ``at the 
patient's own expense.'' The JSC has adopted these proposals in part 
and proposed additional amendments to MREs 412, 513, and 514 to 
implement Sections 534 and 537 of the FY15 NDAA as follows:
    --Mil. R. Evid. 412(c)(2) is amended to read as follows:

    ``(2) Before admitting evidence under this rule, the military 
judge must conduct a hearing, which shall be closed. At this 
hearing, the parties may call witnesses, including the alleged 
victim, and offer relevant evidence. The alleged victim must be 
afforded a reasonable opportunity to attend and be heard. However, 
the hearing may not be unduly delayed for this purpose. The right to 
be heard under this rule includes the right to be heard through 
counsel, including victims' counsel under section 1044e of title 10, 
United States Code. In a case before a court-martial comprised of a 
military judge and members, the military judge shall conduct the 
hearing outside the presence of the members pursuant to Article

[[Page 6059]]

39(a). The motion, related papers, and the record of the hearing 
must be sealed in accordance with R.C.M. 1103A and remain under seal 
unless the military judge or an appellate court orders otherwise.''

    --Mil. R. Evid. 513(b)(2) is amended to read as follows:

    ``(2) ``Psychotherapist'' means a psychiatrist, clinical 
psychologist, clinical social worker, or other mental health 
professional who is licensed in any State, territory, possession, 
the District of Columbia or Puerto Rico to perform professional 
services as such, or who holds credentials to provide such services 
as such, or who holds credentials to provide such services from any 
military health care facility, or is a person reasonably believed by 
the patient to have such license or credentials.''

    --Mil. R. Evid. 513(d)(8) is deleted.
    --Mil. R. Evid. 513(e)(2) is amended to read as follows:

    ``(2) Before ordering the production or admission of evidence of 
a patient's records or communication, the military judge must 
conduct a hearing, which shall be closed. At the hearing, the 
parties may call witnesses, including the patient, and offer other 
relevant evidence. The patient must be afforded a reasonable 
opportunity to attend the hearing and be heard. However, the hearing 
may not be unduly delayed for this purpose. The right to be heard 
under this rule includes the right to be heard through counsel, 
including victims' counsel under section 1044e of title 10, United 
States Code. In a case before a court-martial comprised of a 
military judge and members, the military judge must conduct the 
hearing outside the presence of the members.''

    --Mil. R. Evid. 513(e)(3) is amended to read as follows:

    ``(3) The military judge may examine the evidence or a proffer 
thereof in camera, if such examination is necessary to rule on the 
production or admissibility of protected records or communications. 
Prior to conducting an in camera review, the military judge must 
find by a preponderance of the evidence that the moving party:
    (A) showed a specific factual basis demonstrating a reasonable 
likelihood that the records or communications would yield evidence 
admissible under an exception to the privilege;
    (B) that the requested information meets one of the enumerated 
exceptions under subsection (d) of this rule;
    (C) that the information sought is not merely cumulative of 
other information available; and
    (D) that the party made reasonable efforts to obtain the same or 
substantially similar information through non-privileged sources.''

    --Mil. R. Evid. 513(e)(4) is inserted following Mil. R. Evid. 
513(e)(3) to read as follows:

    ``(4) Any production or disclosure permitted by the military 
judge under this rule must be narrowly tailored to only the specific 
records or communications, or portions of such records or 
communications, that meet the requirements for one of the enumerated 
exceptions to the privilege under subsection (d) above and are 
included in the stated purpose for which the records or 
communications are sought under subsection (e)(1)(A) above.''

    --Mil. R. Evid. 513(e)(4) is renumbered as Mil. R. Evid. 513(e)(5).
    --Mil. R. Evid. 513(e)(5) is renumbered as Mil. R. Evid. 513(e)(6).
    --The title of Mil. R. Evid. 514 is amended to read as follows:

    ``Victim advocate-victim and Department of Defense Safe Helpline 
staff-victim privilege.''
    --Mil. R. Evid. 514(a) is amended to read as follows:

    ``(a) General Rule. A victim has a privilege to refuse to 
disclose and to prevent any other person from disclosing a 
confidential communication made between the alleged victim and a 
victim advocate or between the alleged victim and Department of 
Defense Safe Helpline staff, in a case arising under the UCMJ, if 
such communication was made for the purpose of facilitating advice 
or assistance to the alleged victim.''

    --Mil. R. Evid. 514(b)(3)-(5) is amended to read as follows

    ``(3) ``Department of Defense Safe Helpline staff'' is a person 
who is designated by competent authority in writing as Department of 
Defense Safe Helpline staff.
    (4) A communication is ``confidential'' if made in the course of 
the victim advocate-victim relationship or Department of Defense 
Safe Helpline staff-victim relationship and not intended to be 
disclosed to third persons other than those to whom disclosure is 
made in furtherance of the rendition of advice or assistance to the 
alleged victim or those reasonably necessary for such transmission 
of the communication.
    (5) ``Evidence of a victim's records or communications'' means 
testimony of a victim advocate or Department of Defense Safe 
Helpline staff, or records that pertain to communications by a 
victim to a victim advocate or Department of Defense Safe Helpline 
staff, for the purposes of advising or providing assistance to the 
victim.''

    --Mil. R. Evid. 514(c) is amended to read as follows:

    ``(c) Who May Claim the Privilege. The privilege may be claimed 
by the victim or the guardian or conservator of the victim. A person 
who may claim the privilege may authorize trial counsel or a counsel 
representing the victim to claim the privilege on his or her behalf. 
The victim advocate or Department of Defense Safe Helpline staff who 
received the communication may claim the privilege on behalf of the 
victim. The authority of such a victim advocate, Department of 
Defense Safe Helpline staff, guardian, conservator, or a counsel 
representing the victim to so assert the privilege is presumed in 
the absence of evidence to the contrary.''

    --Mil. R. Evid. 514(d)(2)-(4) is amended to read as follows:

    ``(2) When federal law, state law, Department of Defense 
regulation, or service regulation imposes a duty to report 
information contained in a communication;
    (3) When a victim advocate or Department of Defense Safe 
Helpline staff believes that a victim's mental or emotional 
condition makes the victim a danger to any person, including the 
victim;
    (4) If the communication clearly contemplated the future 
commission of a fraud or crime, or if the services of the victim 
advocate or Department of Defense Safe Helpline staff are sought or 
obtained to enable or aid anyone to commit or plan to commit what 
the victim knew or reasonably should have known to be a crime or 
fraud;''

    --Mil. R. Evid. 514(e)(2) is amended to read as follows:

    ``(2) Before ordering the production or admission of evidence of 
a victim's records or communication, the military judge must conduct 
a hearing, which shall be closed. At the hearing, the parties may 
call witnesses, including the victim, and offer other relevant 
evidence. The victim must be afforded a reasonable opportunity to 
attend the hearing and be heard. However, the hearing may not be 
unduly delayed for this purpose. The right to be heard under this 
rule includes the right to be heard through counsel, including 
victims' counsel under section 1044e of title 10, United States 
Code. In a case before a court-martial composed of a military judge 
and members, the military judge must conduct the hearing outside the 
presence of the members.''

    --Mil. R. Evid. 514(e)(3) is amended to read as follows:

    ``(3) The military judge may examine the evidence or a proffer 
thereof in camera, if such examination is necessary to rule on the 
production or admissibility of protected records or communications. 
Prior to conducting an in camera review, the military judge must 
find by a preponderance of the evidence that the moving party:
    (A) showed a specific factual basis demonstrating a reasonable 
likelihood that the records or communications would yield evidence 
admissible under an exception to the privilege;
    (B) that the requested information meets one of the enumerated 
exceptions under subsection (d) of this rule;
    (C) that the information sought is not merely cumulative of 
other information available; and
    (D) that the party made reasonable efforts to obtain the same or 
substantially similar information through non-privileged sources.''

    --Mil. R. Evid. 514(e)(4) is inserted following Mil. R. Evid. 
514(e)(3) to read as follows:

    ``(4) Any production or disclosure permitted by the military 
judge under this rule must be narrowly tailored to only the specific 
records or communications, or portions of such records or 
communications, that meet the requirements for one of the enumerated 
exceptions to the privilege under subsection (d) above and are 
included in the stated purpose for which the records or

[[Page 6060]]

communications are sought under subsection (e)(1)(A) above.''

    --Mil. R. Evid. 514(e)(4) is renumbered as Mil. R. Evid. 514(e)(5).
    --Mil. R. Evid. 514(e)(5) is renumbered as Mil. R. Evid. 514(e)(6).
    f. Comments making typographical corrections were received and 
those corrections were made.
    g. Comments were received suggesting additional amendments to RCM 
104, 105, 404A, RCM 405, 801 1103A and MREs 412 and 513. These 
suggested changes were not incorporated. Several suggested changes to 
the MCM as well as recommended legislative changes to UCMJ articles 
were not contemplated in the proposals currently under review. Those 
suggestions will be considered in the course of the 2015 annual review 
of the MCM, which is required by DoD Directive 5500.17.

    Dated: January 30, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-02149 Filed 2-3-15; 8:45 am]
BILLING CODE 5001-06-P