[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)]
[Notices]
[Pages 15272-15278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06393]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID: DOD-2015-OS-0099]
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.) (MCM).
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SUMMARY: The JSC is publishing final proposed amendments to the MCM.
The proposed changes concern the Rules for Courts-Martial, the Military
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: Major Harlye Carlton, USMC, JSC
Executive Secretary, at [email protected]. The JSC public Web
site is located at http://jsc.defense.gov.
SUPPLEMENTARY INFORMATION:
Public Comments: Comments and materials received from the public
are available under Docket ID Number DOD-2015-OS-0099, Federal Register
Number 2015-26485, and at the following link: http://www.regulations.gov/#!docketDetail;D=DOD-2015-OS-0099.
Background
On October 19, 2015 (80 FR 63204-63212), 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 November 5, 2015. No comments were received
at the public meeting. The 60-day public comment period for the notice
closed on December 18, 2015. One public comment was received.
The JSC considered the public comments and after conducting
deliberations, made no modifications to the proposed amendments to the
MCM as a result of the public comments. The JSC conducted additional
internal deliberations and made some modifications to the proposed
amendments to the MCM accordingly. Comments that were submitted that
are outside the scope of the originally-proposed changes will be
considered as part of the JSC 2016 annual review of the MCM.
Proposed Amendments After Period for Public Comment
The proposed recommended amendments to the MCM that have been
forwarded through the DoD for action by Executive Order of the
President of the United States are as follows:
Section 1. Part II of the Manual for Courts-Martial, United States,
is amended as follows:
(a) The title of R.C.M. 104(b)(1) is amended to read as follows:
``(1) Evaluation of member, defense counsel, or special victims'
counsel.''
(b) R.C.M. 104(b)(1)(B) is amended to read as follows:
``(B) Give a less favorable rating or evaluation of any defense
counsel or special victims' counsel because of the zeal with which such
counsel represented any client. As used in this rule, ``special
victims' counsel'' are judge advocates who, in accordance with 10
U.S.C. 1044e, are designated as Special Victims' Counsel by the Judge
Advocate General of the armed force in which the judge advocates are
members, and within the Marine Corps, by the Staff Judge Advocate to
the Commandant of the Marine Corps.''
(c) R.C.M. 305(h)(2)(B)(iii)(a) is amended to read as follows:
``(a) The prisoner will not appear at trial, pretrial hearing,
preliminary hearing, or investigation, or''
[[Page 15273]]
(d) R.C.M. 305(i)(2)(A)(iv) is amended to read as follows:
``(iv) Victim's right to be reasonably heard. A victim of an
alleged offense committed by the prisoner has the right to reasonable,
accurate, and timely notice of the 7-day review; the right to confer
with the representative of the command and counsel for the government,
if any; and the right to be reasonably heard during the review.
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 and the right to be reasonably protected from the
prisoner during the 7-day review. The victim of an alleged offense
shall be notified of these rights in accordance with regulations of the
Secretary concerned.''
(e) A new R.C.M. 306(e) is inserted and reads as follows:
``(e) Sex-related offenses.
(1) For purposes of this subsection, a ``sex-related offense''
means any allegation of a violation of Article 120, 120a, 120b, 120c,
or 125 or any attempt thereof under Article 80, UCMJ.
(2) Under such regulations as the Secretary concerned may
prescribe, for alleged sex-related offenses committed in the United
States, the victim of the sex-related offense shall be provided an
opportunity to express views as to whether the offense should be
prosecuted by court-martial or in a civilian court with jurisdiction
over the offense. The commander, and if charges are preferred, the
convening authority, shall consider such views as to the victim's
preference for jurisdiction, if available, prior to making an initial
disposition decision. For purposes of this rule, ``victim'' is defined
as an individual who has suffered direct physical, emotional, or
pecuniary harm as a result of the commission of an alleged sex-related
offense as defined in subparagraph (A) of this rule.
(3) Under such regulations as the Secretary concerned may
prescribe, if the victim of an alleged sex-related offense expresses a
preference for prosecution of the offense in a civilian court, the
commander, and if charges are preferred, the convening authority, shall
ensure that the civilian authority with jurisdiction over the offense
is notified of the victim's preference for civilian prosecution. If the
commander, and if charges are preferred, the convening authority learns
of any decision by the civilian authority to prosecute or not prosecute
the offense in civilian court, the convening authority shall ensure the
victim is notified.''
(f) R.C.M. 403(b)(5) is amended to read as follows:
``(5) Unless otherwise prescribed by the Secretary concerned,
direct a preliminary hearing under R.C.M. 405, and, if appropriate,
forward the report of preliminary hearing with the charges to a
superior commander for disposition.''
(g) R.C.M. 405(i)(2)(A) is amended to read as follows:
``(2) Notice to and presence of the victim(s).
(A) The victim(s) of an offense under the UCMJ has the right to
reasonable, accurate, and timely notice of a preliminary hearing
relating to the alleged offense, the right to be reasonably protected
from the accused, and the reasonable right to confer with counsel for
the government during the preliminary hearing. For the purposes of this
rule, a ``victim'' is a person who is alleged to have suffered a direct
physical, emotional, or pecuniary harm as a result of the matters set
forth in a charge or specification under consideration and is named in
one of the specifications under consideration.''
(h) R.C.M. 407(a)(5) is amended to read as follows:
``(5) Unless otherwise prescribed by the Secretary concerned,
direct a preliminary hearing under R.C.M. 405, after which additional
action under this rule may be taken;''
(i) R.C.M. 502(d)(4)(B) is amended to read as follows:
``(B) An investigating or preliminary hearing officer;''
(j) RCM 502(e)(2)(C) is amended to read as follows:
``(C) An investigating or preliminary hearing officer;''
(k) R.C.M. 506(b)(2) is amended by replacing ``investigation'' with
``preliminary hearing.''
(l) R.C.M 601(d)(2)(A) is amended to read as follows:
``(A) There has been substantial compliance with the preliminary
hearing requirements of R.C.M. 405; and''
(m) R.C.M. 705(c)(2)(A) is amended to read as follows:
``(A) A promise to enter into a stipulation of fact concerning
offenses to which a plea of guilty or a confessional stipulation will
be entered;''
(n) R.C.M. 705(d)(3) is amended to read as follows:
``(3) Acceptance.
(A) In general. The convening authority may either accept or reject
an offer of the accused to enter into a pretrial agreement or may
propose by counteroffer any terms or conditions not prohibited by law
or public policy. The decision whether to accept or reject an offer is
within the sole discretion of the convening authority. When the
convening authority has accepted a pretrial agreement, the agreement
shall be signed by the convening authority or by a person, such as the
staff judge advocate or trial counsel, who has been authorized by the
convening authority to sign.
(B) Victim consultation. Whenever practicable, prior to the
convening authority accepting a pretrial agreement the victim shall be
provided an opportunity to express views concerning the pretrial
agreement terms and conditions in accordance with regulations
prescribed by the Secretary concerned. The convening authority shall
consider any such views provided prior to accepting a pretrial
agreement. For purposes of this rule, a ``victim'' is an individual who
is alleged to have suffered direct physical, emotional, or pecuniary
harm as a result of the matters set forth in a charge or specification
under consideration and is named in one of the specifications under
consideration.''
(o) A new R.C.M. 806(b)(2) is inserted and reads as follows:
``(2) Right of victim to notice. A victim of an alleged offense
committed by the accused has the right to reasonable, accurate, and
timely notice of court-martial proceedings relating to the offense.''
(p) R.C.M. 806(b)(2) is renumbered as R.C.M. 806(b)(3).
(q) R.C.M. 806(b)(3) is renumbered as R.C.M. 806(b)(4).
(r) R.C.M. 806(b)(4) is renumbered as R.C.M. 806(b)(5).
(s) A new R.C.M. 806(b)(6) is inserted and reads as follows:
``(6) Right of victim to be reasonably protected from the accused.
A victim of an alleged offense committed by the accused has the right
to be reasonably protected from the accused.''
(t) R.C.M. 902(b)(2) is amended to read as follows:
``(2) Where the military judge has acted as counsel, preliminary
hearing officer, investigating officer, legal officer, staff judge
advocate, or convening authority as to any offense charged or in the
same case generally.''
(u) R.C.M. 905(b)(1) is amended to read as follows:
``(1) Defenses or objections based on defects (other than
jurisdictional defects) in the preferral, forwarding, or referral of
charges, or in the preliminary hearing;''
(v) R.C.M. 907(b)(1) is amended to read as follows:
``(1) Nonwaivable grounds. A charge or specification shall be
dismissed at any stage of the proceedings if the court-martial lacks
jurisdiction to try the accused for the offense.''
(w) R.C.M. 907(b)(1)(A)-(B) is deleted.
[[Page 15274]]
(x) A new R.C.M. 907(b)(2)(E) is inserted and reads as follows:
``(E) The specification fails to state an offense.''
(y) R.C.M. 912(a)(1)(K) is amended to read as follows:
``(K) Whether the member has acted as accuser, counsel, preliminary
hearing officer, investigating officer, convening authority, or legal
officer or staff judge advocate for the convening authority in the
case, or has forwarded the charges with a recommendation as to
disposition.''
(z) R.C.M. 912(f)(1)(F) is amended to read as follows:
``(F) Has been an investigating or preliminary hearing officer as
to any offense charged;''
(aa) R.C.M. 1002 is amended to read as follows:
``(a) Generally. Subject to limitations in this Manual, the
sentence to be adjudged is a matter within the discretion of the court-
martial; except when a mandatory minimum sentence is prescribed by the
code, a court-martial may adjudge any punishment authorized in this
Manual, including the maximum punishment or any lesser punishment, or
may adjudge a sentence of no punishment.
(b) Unitary Sentencing. Sentencing by a court-martial is unitary.
The court-martial will adjudge a single sentence for all the offenses
of which the accused was found guilty. A court-martial may not impose
separate sentences for each finding of guilty, but may impose only a
single, unitary sentence covering all of the guilty findings in their
entirety.''
(bb) R.C.M. 1103(b)(2)(B)(i) is amended to read as follows:
``(i) The sentence adjudged includes confinement for twelve months
or more or any punishment that may not be adjudged by a special court-
martial; or''
(cc) The Note currently located immediately following the title of
R.C.M. 1107 and prior to R.C.M. 1107(a) is amended to read as follows:
``[Note: R.C.M. 1107(b)-(f) apply to offenses committed on or after
24 June 2014; however, if at least one offense resulting in a finding
of guilty in a case occurred prior to 24 June 2014, or includes a date
range where the earliest date in the range for that offense is before
24 June 2014, then the prior version of R.C.M. 1107 applies to all
offenses in the case, except that mandatory minimum sentences under
Article 56(b) and applicable rules under R.C.M. 1107(d)(1)(D)-(E) still
apply.]''
(dd) R.C.M. 1107(b)(5) is amended to delete the sentence, ``Nothing
in this subsection shall prohibit the convening authority from
disapproving the findings of guilty and sentence.''
(ee) R.C.M. 1107(c) is amended to read as follows:
``(c) Action on findings. Action on the findings is not required.
However, the convening authority may take action subject to the
following limitations:
(1) Where a court-martial includes a finding of guilty for an
offense listed in subparagraph (c)(1)(A) of this rule, the convening
authority may not take the actions listed in subparagraph (c)(1)(B) of
this rule:
(A) Offenses
(i) Article 120(a) or (b), Article 120b, or Article 125;
(ii) Offenses for which the maximum sentence of confinement that
may be adjudged exceeds two years without regard to the jurisdictional
limits of the court; or
(iii) Offenses where the adjudged sentence for the case includes
dismissal, dishonorable discharge, bad-conduct discharge, or
confinement for more than six months.
(B) Prohibited actions
(i) Dismiss a charge or specification by setting aside a finding of
guilty thereto; or
(ii) Change a finding of guilty to a charge or specification to a
finding of guilty to an offense that is a lesser included offense of
the offense stated in the charge or specification.
(2) The convening authority may direct a rehearing in accordance
with subsection (e) of this rule.
(3) For offenses other than those listed in subparagraph (c)(1)(A)
of this rule:
(A) The convening authority may change a finding of guilty to a
charge or specification to a finding of guilty to an offense that is a
lesser included offense of the offense stated in the charge or
specification; or
(B) Set aside any finding of guilty and:
(i) Dismiss the specification and, if appropriate, the charge; or
(ii) Direct a rehearing in accordance with subsection (e) of this
rule.
(4) If the convening authority acts to dismiss or change any charge
or specification for an offense, the convening authority shall provide,
at the same time, a written explanation of the reasons for such action.
The written explanation shall be made a part of the record of trial and
action thereon.''
(ff) R.C.M. 1107(d) is amended to read as follows:
``(d) Action on the sentence.
(1) The convening authority shall take action on the sentence
subject to the following:
(A) The convening authority may disapprove, commute, or suspend, in
whole or in part, any portion of an adjudged sentence not explicitly
prohibited by this rule, to include reduction in pay grade, forfeitures
of pay and allowances, fines, reprimands, restrictions, and hard labor
without confinement.
(B) Except as provided in subparagraph (d)(1)(C) of this rule, the
convening authority may not disapprove, commute, or suspend, in whole
or in part, that portion of an adjudged sentence that includes:
(i) confinement for more than six months; or
(ii) dismissal, dishonorable discharge, or bad-conduct discharge.
(C) Exceptions
(i) Trial counsel recommendation. Upon the recommendation of the
trial counsel, in recognition of the substantial assistance by the
accused in the investigation or prosecution of another person who has
committed an offense, the convening authority or another person
authorized to act under this rule shall have the authority to
disapprove, commute, or suspend the adjudged sentence, in whole or in
part, even with respect to an offense for which a mandatory minimum
sentence exists.
(ii) Pretrial agreement. If a pretrial agreement has been entered
into by the convening authority and the accused, as authorized by
R.C.M. 705, the convening authority or another person authorized to act
under this rule shall have the authority to approve, disapprove,
commute, or suspend a sentence, in whole or in part, pursuant to the
terms of the pretrial agreement. However, if a mandatory minimum
sentence of a dishonorable discharge applies to an offense for which an
accused has been convicted, the convening authority or another person
authorized to act under this rule may commute the dishonorable
discharge to a bad-conduct discharge pursuant to the terms of the
pretrial agreement.
(D) If the convening authority acts to disapprove, commute, or
suspend, in whole or in part, the sentence of the court-martial for an
offense listed in subparagraph (c)(1)(A) of this rule, the convening
authority shall provide, at the same time, a written explanation of the
reasons for such action. The written explanation shall be made a part
of the record of trial and action thereon.''
(gg) R.C.M. 1107(e) is amended to read as follows:
``(e) Ordering rehearing or other trial.
(1) Rehearings not permitted. A rehearing may not be ordered by the
convening authority where the adjudged sentence for the case includes a
sentence of dismissal, dishonorable discharge, or bad-conduct discharge
or confinement for more than six months.
(2) Rehearings permitted.
[[Page 15275]]
(A) In general. Subject to paragraph (e)(1) and subparagraphs
(e)(2)(B) through (e)(2)(E) of this rule, the convening authority may
in the convening authority's discretion order a rehearing. A rehearing
may be ordered as to some or all offenses of which findings of guilty
were entered and the sentence, or as to sentence only.
(B) When the convening authority may order a rehearing. The
convening authority may order a rehearing:
(i) When taking action on the court-martial under this rule. Prior
to ordering a rehearing on a finding, the convening authority must
disapprove the applicable finding and the sentence and state the
reasons for disapproval of said finding. Prior to ordering a rehearing
on the sentence, the convening authority must disapprove the sentence.
(ii) When authorized to do so by superior competent authority. If
the convening authority finds a rehearing as to any offenses
impracticable, the convening authority may dismiss those specifications
and, when appropriate, charges.
(iii) Sentence reassessment. If a superior competent authority has
approved some of the findings of guilty and has authorized a rehearing
as to other offenses and the sentence, the convening authority may,
unless otherwise directed, reassess the sentence based on the approved
findings of guilty and dismiss the remaining charges. Reassessment is
appropriate only where the convening authority determines that the
accused's sentence would have been at least of a certain magnitude had
the prejudicial error not been committed and the reassessed sentence is
appropriate in relation to the affirmed findings of guilty.''
(C) Limitations.
(i) Sentence approved. A rehearing shall not be ordered if, in the
same action, a sentence is approved.
(ii) Lack of sufficient evidence. A rehearing may not be ordered as
to findings of guilty when there is a lack of sufficient evidence in
the record to support the findings of guilty of the offense charged or
of any lesser included offense. A rehearing may be ordered, however, if
the proof of guilt consisted of inadmissible evidence for which there
is available an admissible substitute. A rehearing may be ordered as to
any lesser offense included in an offense of which the accused was
found guilty, provided there is sufficient evidence in the record to
support the lesser included offense.
(iii) Rehearing on sentence only. A rehearing on sentence only
shall not be referred to a different kind of court-martial from that
which made the original findings. If the convening authority determines
a rehearing on sentence is impracticable, the convening authority may
approve a sentence of no punishment without conducting a rehearing.
(D) Additional charges. Additional charges may be referred for
trial together with charges as to which a rehearing has been directed.
(E) Lesser included offenses. If at a previous trial the accused
was convicted of a lesser included offense, a rehearing may be ordered
only as to that included offense or as to an offense included in that
found. If, however, a rehearing is ordered improperly on the original
offense charged and the accused is convicted of that offense at the
rehearing, the finding as to the lesser included offense of which the
accused was convicted at the original trial may nevertheless be
approved.
(3) ``Other'' trial. The convening or higher authority may order an
``other'' trial if the original proceedings were invalid because of
lack of jurisdiction or failure of a specification to state an offense.
The authority ordering an ``other'' trial shall state in the action the
basis for declaring the proceedings invalid.''
(hh) The Note currently located immediately following the title of
R.C.M. 1108(b) and prior to the first line, ``The convening authority
may . . .'', is amended to read as follows:
``[Note: R.C.M. 1108(b) applies to offenses committed on or after
24 June 2014; however, if at least one offense in a case occurred prior
to 24 June 2014, then the prior version of R.C.M. 1108(b) applies to
all offenses in the case.]''
(ii) R.C.M. 1109(a) is amended to read as follows:
``(a) In general. Suspension of execution of the sentence of a
court-martial may be vacated for violation of any condition of the
suspension as provided in this rule.''
(jj) R.C.M. 1109(c)(4)(A) is amended to read as follows:
``(A) Rights of probationer. Before the preliminary hearing, the
probationer shall be notified in writing of:''
(kk) R.C.M. 1109(c)(4)(C) is amended to read as follows:
``(C) Decision. The hearing officer shall determine whether there
is probable cause to believe that the probationer violated the
conditions of the probationer's suspension. If the hearing officer
determines that probable cause is lacking, the hearing officer shall
issue a written order directing that the probationer be released from
confinement. If the hearing officer determines that there is probable
cause to believe that the probationer violated a condition of
suspension, the hearing officer shall set forth this determination in a
written memorandum that details therein the evidence relied upon and
reasons for making the decision. The hearing officer shall forward the
original memorandum or release order to the probationer's commander and
forward a copy to the probationer and the officer in charge of the
confinement facility.''
(ll) A new sentence is added to the end of R.C.M. 1109(d)(1)(A) and
reads as follows:
``The purpose of the hearing is for the hearing officer to
determine whether there is probable cause to believe that the
probationer violated a condition of the probationer's suspension.''
(mm) R.C.M. 1109(d)(1)(C) is amended to read as follows:
``(C) Hearing. The procedure for the vacation hearing shall follow
that prescribed in subsection (h) of this rule.''
(nn) A new sentence is added to the end of R.C.M. 1109(d)(1)(D) and
reads as follows:
``This record shall include the recommendation, the evidence relied
upon, and reasons for making the decision.''
(oo) R.C.M. 1109(d)(2)(A) is amended to read as follows:
``(A) In general. The officer exercising general court-martial
jurisdiction over the probationer shall review the record produced by
and the recommendation of the officer exercising special court-martial
jurisdiction over the probationer, decide whether there is probable
cause to believe that the probationer violated a condition of the
probationer's suspension, and, if so, decide whether to vacate the
suspended sentence. If the officer exercising general court-martial
jurisdiction decides to vacate the suspended sentence, that officer
shall prepare a written statement of the evidence relied on and the
reasons for vacating the suspended sentence.''
(pp) A new sentence is added to the end of R.C.M. 1109(e)(1) and
reads as follows:
``The purpose of the hearing is for the hearing officer to
determine whether there is probable cause to believe that the
probationer violated the conditions of the probationer's suspension.''
(qq) R.C.M. 1109(e)(3) is amended to read as follows:
``(3) Hearing. The procedure for the vacation hearing shall follow
that prescribed in subsection (h) of this rule.''
(rr) A new sentence is added to the end of R.C.M. 1109(e)(5) and
reads as follows:
[[Page 15276]]
``This record shall include the recommendation, the evidence relied
upon, and reasons for making the decision.''
(ss) R.C.M. 1109(e)(6) is amended to read as follows:
``(6) Decision. The special court-martial convening authority shall
review the record produced by and the recommendation of the person who
conducted the vacation proceeding, decide whether there is probable
cause to believe that the probationer violated a condition of the
probationer's suspension, and, if so, decide whether to vacate the
suspended sentence. If the officer exercising jurisdiction decides to
vacate the suspended sentence, that officer shall prepare a written
statement of the evidence relied on and the reasons for vacating the
suspended sentence.''
(tt) A new sentence is added to the end of R.C.M. 1109(g)(1) and
reads as follows:
``The purpose of the hearing is for the hearing officer to
determine whether there is probable cause to believe that the
probationer violated the conditions of the probationer's suspension.''
(uu) R.C.M. 1109(g)(3) is amended to read as follows:
``(3) Hearing. The procedure for the vacation hearing shall follow
that prescribed in subsection (h) of this rule.''
(vv) A new sentence is added to the end of R.C.M. 1109(g)(5) and
reads as follows:
``This record shall include the recommendation, the evidence relied
upon, and reasons for making the decision.''
(ww) R.C.M. 1109(g)(6) is amended to read as follows:
``(6) Decision. A commander with authority to vacate the suspension
shall review the record produced by and the recommendation of the
person who conducted the vacation proceeding, decide whether there is
probable cause to believe that the probationer violated a condition of
the probationer's suspension, and, if so, decide whether to vacate the
suspended sentence. If the officer exercising jurisdiction decides to
vacate the suspended sentence, that officer shall prepare a written
statement of the evidence relied on and the reasons for vacating the
suspended sentence.''
(xx) A new R.C.M. 1109(h) is inserted and reads as follows:
``(h) Hearing procedure.
(1) Generally. The hearing shall begin with the hearing officer
informing the probationer of the probationer's rights. The government
will then present evidence. Upon the conclusion of the government's
presentation of evidence, the probationer may present evidence. The
probationer shall have full opportunity to present any matters in
defense, extenuation, or mitigation. Both the government and
probationer shall be afforded an opportunity to cross-examine adverse
witnesses. The hearing officer may also question witnesses called by
the parties.
(2) Rules of evidence. The Military Rules of Evidence--other than
Mil. R. Evid. 301, 302, 303, 305, 412, and Section V--shall not apply.
Nor shall Mil. R. Evid. 412(b)(1)(C) apply. In applying these rules to
a vacation hearing, the term ``military judge,'' as used in these
rules, shall mean the hearing officer, who shall assume the military
judge's authority to exclude evidence from the hearing, and who shall,
in discharging this duty, follow the procedures set forth in these
rules. However, the hearing officer is not authorized to order
production of communications covered by Mil. R. Evid. 513 or 514.
(3) Production of witnesses and other evidence. The procedure for
the production of witnesses and other evidence shall follow that
prescribed in R.C.M. 405(g), except that R.C.M. 405(g)(3)(B) shall not
apply. The hearing officer shall only consider testimony and other
evidence that is relevant to the limited purpose of the hearing.
(4) Presentation of testimony. Witness testimony may be provided in
person, by video teleconference, by telephone, or by similar means of
remote testimony. All testimony shall be taken under oath, except that
the probationer may make an unsworn statement.
(5) Other evidence. If relevant to the limited purpose of the
hearing, and not cumulative, a hearing officer may consider other
evidence, in addition to or in lieu of witness testimony, including
statements, tangible evidence, or reproductions thereof, offered by
either side, that the hearing officer determines is reliable. This
other evidence need not be sworn.
(6) Presence of probationer. The taking of evidence shall not be
prevented and the probationer shall be considered to have waived the
right to be present whenever the probationer:
(A) After being notified of the time and place of the proceeding is
voluntarily absent; or
(B) After being warned by the hearing officer that disruptive
conduct will cause removal from the proceeding, persists in conduct
that is such as to justify exclusion from the proceeding.
(7) Objections. Any objection alleging failure to comply with these
rules shall be made to the convening authority via the hearing officer.
The hearing officer shall include a record of all objections in the
written recommendations to the convening authority.
(8) Access by spectators. Vacation hearings are public proceedings
and should remain open to the public whenever possible. The convening
authority who directed the hearing or the hearing officer may restrict
or foreclose access by spectators to all or part of the proceedings if
an overriding interest exists that outweighs the value of an open
hearing. Examples of overriding interests may include: Preventing
psychological harm or trauma to a child witness or an alleged victim of
a sexual crime, protecting the safety or privacy of a witness or
alleged victim, protecting classified material, and receiving evidence
where a witness is incapable of testifying in an open setting. Any
closure must be narrowly tailored to achieve the overriding interest
that justified the closure. Convening authorities or hearing officers
must conclude that no lesser methods short of closing the hearing can
be used to protect the overriding interest in the case. Convening
authorities or hearing officers must conduct a case-by-case, witness-
by-witness, circumstance-by-circumstance analysis of whether closure is
necessary. If a convening authority or hearing officer believes closing
the hearing is necessary, the convening authority or hearing officer
must make specific findings of fact in writing that support the
closure. The written findings of fact must be included in the record.
(9) Victim's rights. Any victim of the underlying offense for which
the probationer received the suspended sentence, or any victim of the
alleged offense that is the subject of the vacation hearing, has the
right to reasonable, accurate, and timely notice of the vacation
hearing. For purposes of this rule, the term ``victim'' is defined as
an individual who has suffered direct physical, emotional, or pecuniary
harm as a result of the commission of an offense.''
(yy) A new R.C.M. 1203(g) is inserted and reads as follows:
``(g) Article 6b(e) petition for writ of mandamus. The Judge
Advocates General shall establish the means by which the petitions for
writs of mandamus described in Article 6b(e) are forwarded to the
Courts of Criminal Appeals in accordance with their rule-making
functions of Article 66(f).''
Sec. 2. Part III of the Manual for Courts-Martial, United States,
is amended as follows:
(a) Mil. R. Evid. 304(c) is amended to read as follows:
[[Page 15277]]
``(c) Corroboration of a Confession or Admission.
(1) An admission or a confession of the accused may be considered
as evidence against the accused on the question of guilt or innocence
only if independent evidence, either direct or circumstantial, has been
admitted into evidence that would tend to establish the trustworthiness
of the admission or confession.
(2) Other uncorroborated confessions or admissions of the accused
that would themselves require corroboration may not be used to supply
this independent evidence. If the independent evidence raises an
inference of the truth of the admission or confession, then it may be
considered as evidence against the accused. Not every element or fact
contained in the confession or admission must be independently proven
for the confession or admission to be admitted into evidence in its
entirety.
(3) Corroboration is not required for a statement made by the
accused before the court by which the accused is being tried, for
statements made prior to or contemporaneously with the act, or for
statements offered under a rule of evidence other than that pertaining
to the admissibility of admissions or confessions.
(4) Quantum of Evidence Needed. The independent evidence necessary
to establish corroboration need not be sufficient of itself to
establish beyond a reasonable doubt the truth of facts stated in the
admission or confession. The independent evidence need raise only an
inference of the truth of the admission or confession. The amount and
type of evidence introduced as corroboration is a factor to be
considered by the trier of fact in determining the weight, if any, to
be given to the admission or confession.
(5) Procedure. The military judge alone is to determine when
adequate evidence of corroboration has been received. Corroborating
evidence must be introduced before the admission or confession is
introduced unless the military judge allows submission of such evidence
subject to later corroboration.''
(b) Mil. R. Evid. 311(a) is amended to read as follows:
``(a) General rule. Evidence obtained as a result of an unlawful
search or seizure made by a person acting in a governmental capacity is
inadmissible against the accused if:
(1) the accused makes a timely motion to suppress or an objection
to the evidence under this rule;
(2) the accused had a reasonable expectation of privacy in the
person, place or property searched; the accused had a legitimate
interest in the property or evidence seized when challenging a seizure;
or the accused would otherwise have grounds to object to the search or
seizure under the Constitution of the United States as applied to
members of the Armed Forces; and
(3) exclusion of the evidence results in appreciable deterrence of
future unlawful searches or seizures and the benefits of such
deterrence outweigh the costs to the justice system.''
(c) A new Mil. R. Evid. 311(c)(4) is inserted and reads as follows:
``(4) Reliance on Statute. Evidence that was obtained as a result
of an unlawful search or seizure may be used when the official seeking
the evidence acts in objectively reasonable reliance on a statute later
held violative of the Fourth Amendment.''
(d) Mil. R. Evid. 311(d)(5)(A) is amended to read as follows:
``(A) In general. When the defense makes an appropriate motion or
objection under subdivision (d), the prosecution has the burden of
proving by a preponderance of the evidence that the evidence was not
obtained as a result of an unlawful search or seizure, that the
evidence would have been obtained even if the unlawful search or
seizure had not been made, that the evidence was obtained by officials
who reasonably and with good faith relied on the issuance of an
authorization to search, seize, or apprehend or a search warrant or an
arrest warrant; that the evidence was obtained by officials in
objectively reasonable reliance on a statute later held violative of
the Fourth Amendment; or that the deterrence of future unlawful
searches or seizures is not appreciable or such deterrence does not
outweigh the costs to the justice system of excluding the evidence.''
(e) Mil. R. Evid. 414(d)(2)(A) is amended to read as follows:
``(A) any conduct prohibited by Article 120 and committed with a
child, or prohibited by Article 120b.''
(f) Mil. R. Evid. 504 is amended to read as follows:
``Rule 504. Marital privilege
(a) Spousal Incapacity. A person has a privilege to refuse to
testify against his or her spouse. There is no privilege under
subdivision (a) when, at the time of the testimony, the parties are
divorced, or the marriage has been annulled.
(b) Confidential Communication Made During the Marriage.
(1) General Rule. A person has a privilege during and after the
marital relationship to refuse to disclose, and to prevent another from
disclosing, any confidential communication made to the spouse of the
person while they were married and not separated as provided by law.
(2) Who May Claim the Privilege. The privilege may be claimed by
the spouse who made the communication or by the other spouse on his or
her behalf. The authority of the latter spouse to do so is presumed in
the absence of evidence of a waiver. The privilege will not prevent
disclosure of the communication at the request of the spouse to whom
the communication was made if that spouse is an accused regardless of
whether the spouse who made the communication objects to its
disclosure.
(c) Exceptions.
(1) To Confidential Communications Only. Where both parties have
been substantial participants in illegal activity, those communications
between the spouses during the marriage regarding the illegal activity
in which they have jointly participated are not marital communications
for purposes of the privilege in subdivision (b) and are not entitled
to protection under the privilege in subdivision (b).
(2) To Spousal Incapacity and Confidential Communications. There is
no privilege under subdivisions (a) or (b):
(A) In proceedings in which one spouse is charged with a crime
against the person or property of the other spouse or a child of
either, or with a crime against the person or property of a third
person committed in the course of committing a crime against the other
spouse;
(B) When the marital relationship was entered into with no
intention of the parties to live together as spouses, but only for the
purpose of using the purported marital relationship as a sham, and with
respect to the privilege in subdivision (a), the relationship remains a
sham at the time the testimony or statement of one of the parties is to
be introduced against the other; or with respect to the privilege in
subdivision (b), the relationship was a sham at the time of the
communication; or
(C) In proceedings in which a spouse is charged, in accordance with
Article 133 or 134, with importing the other spouse as an alien for
prostitution or other immoral purpose in violation of 8 U.S.C. 1328;
with transporting the other spouse in interstate commerce for
prostitution, immoral purposes, or another offense in violation of 18
U.S.C. 2421-2424; or with violation of such other similar statutes
under which such privilege may not be claimed in the trial of criminal
cases in the United States district courts.
(d) Definitions. As used in this rule:
[[Page 15278]]
(1) ``A child of either'' means a biological child, adopted child,
or ward of one of the spouses and includes a child who is under the
permanent or temporary physical custody of one of the spouses,
regardless of the existence of a legal parent-child relationship. For
purposes of this rule only, a child is:
(A) An individual under the age of 18; or
(B) an individual with a mental handicap who functions under the
age of 18.
(2) ``Temporary physical custody'' means a parent has entrusted his
or her child with another. There is no minimum amount of time necessary
to establish temporary physical custody, nor is a written agreement
required. Rather, the focus is on the parent's agreement with another
for assuming parental responsibility for the child. For example,
temporary physical custody may include instances where a parent
entrusts another with the care of his or her child for recurring care
or during absences due to temporary duty or deployments.
(3) As used in this rule, a communication is ``confidential'' if
made privately by any person to the spouse of the person and is not
intended to be disclosed to third persons other than those reasonably
necessary for transmission of the communication.''
(g) Mil. R. Evid. 505(e)(2) is amended by replacing ``investigating
officer'' with ``preliminary hearing officer.''
(h) Mil. R. Evid. 801(d)(1)(B) is amended to read as follows:
``(B) is consistent with the declarant's testimony and is offered:
(i) to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper influence or
motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when
attacked on another ground; or''
(i) The first sentence of Mil. R. Evid. 803(6)(E) is amended to
read as follows:
``(E) the opponent does not show that the source of information or
the method or circumstance of preparation indicate a lack of
trustworthiness.''
(j) Mil. R. Evid. 803(7)(C) is amended to read as follows:
``(C) the opponent does not show that the possible source of the
information or other circumstances indicate a lack of
trustworthiness.''
(k) The first sentence of Mil. R. Evid. 803(8)(B) is amended to
read as follows:
``(B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.''
(l) Mil. R. Evid. 803(10)(B) is amended to read as follows:
``(B) a counsel for the government who intends to offer a
certification provides written notice of that intent at least 14 days
before trial, and the accused does not object in writing within 7 days
of receiving the notice--unless the military judge sets a different
time for the notice or the objection.''
(m) Mil. R. Evid. 804(b)(1)(B) is amended by replacing ``pretrial
investigation'' with ``preliminary hearing.''
(n) Mil. R. Evid. 1101(d)(2) is amended by replacing ``pretrial
investigations'' with ``preliminary hearings.''
Sec. 3. Part IV of the Manual for Courts-Martial, United States, is
amended as follows:
(a) Paragraph 4, Article 80--Attempts, subparagraph e. is amended
to read as follows:
``e. Maximum punishment. Any person subject to the code who is
found guilty of an attempt under Article 80 to commit any offense
punishable by the code shall be subject to the same maximum punishment
authorized for the commission of the offense attempted, except that in
no case shall the death penalty be adjudged, and in no case, other than
attempted murder, shall confinement exceeding 20 years be adjudged.
Except in the cases of attempts of Article 120(a) or (b), rape or
sexual assault of a child under Article 120b(a) or (b), and forcible
sodomy under Article 125, mandatory minimum punishment provisions shall
not apply.''
(b) Paragraph 57, Article 131--Perjury, subparagraph c.(1) is
amended by replacing ``an investigation'' with ``a preliminary
hearing.''
(c) Paragraph 57, Article 131--Perjury, subparagraph c.(3) is
amended by replacing ``investigation'' with ``preliminary hearing.''
(d) Paragraph 96, Article 134--Obstructing justice, subparagraph f.
is amended to read as follows:
``f. Sample specification. In that (personal jurisdiction data),
did, (at/on board--location) (subject-matter jurisdiction data, if
required), on or about 20, wrongfully (endeavor to) (impede (a trial by
court-martial) (an investigation) (a preliminary hearing) (__))
[influence the actions of __, (a trial counsel of the court-martial) (a
defense counsel of the court-martial) (an officer responsible for
making a recommendation concerning disposition of charges) (__)]
[(influence) (alter) the testimony of __as a witness before a (court-
martial) (an investigating officer) (a preliminary hearing) (__)] in
the case of __by [(promising) (offering) (giving) to the said, (the sum
of $) (__, of a value of about $)] [communicating to the said __a
threat to __] [__], (if) (unless) he/she, the said __, would [recommend
dismissal of the charges against said __] [(wrongfully refuse to
testify) (testify falsely concerning __) (__)] [(at such trial) (before
such investigating officer) (before such preliminary hearing officer)]
[__].''
(e) Paragraph 108, Testify: Wrongful refusal, subparagraph f. is
amended by replacing ``officer conducting an investigation under
Article 32, Uniform Code of Military Justice'' with ``officer
conducting a preliminary hearing under Article 32, Uniform Code of
Military Justice.''
(f) Paragraph 110, Article 134--Threat, communicating, subparagraph
c. is amended to read as follows:
``c. Explanation. For purposes of this paragraph, to establish that
the communication was wrongful it is necessary that the accused
transmitted the communication for the purpose of issuing a threat, with
the knowledge that the communication would be viewed as a threat, or
acted recklessly with regard to whether the communication would be
viewed as a threat. However, it is not necessary to establish that the
accused actually intended to do the injury threatened. Nor is the
offense committed by the mere statement of intent to commit an unlawful
act not involving injury to another. See also paragraph 109, Threat or
hoax designed or intended to cause panic or public fear.''
Dated: March 17, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-06393 Filed 3-21-16; 8:45 am]
BILLING CODE 5001-06-P