[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