[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)]
[Notices]
[Pages 15278-15289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06403]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Amendments to Appendix 22

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

ACTION: Publication of Discussion and Analysis (Supplementary 
Materials) accompanying the Manual for Courts-Martial, United States 
(2012 ed.) (MCM).

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SUMMARY: The JSC hereby publishes Supplementary Materials accompanying 
the MCM as amended by Executive Orders 13643, 13669, and 13696. These 
changes have not been coordinated within the Department of Defense 
under DoD Directive 5500.1, ``Preparation,

[[Page 15279]]

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. These 
Supplementary Materials have been approved by the JSC and the Acting 
General Counsel of the Department of Defense.

DATES: The Supplementary Materials are effective as of March 22, 2016.

FOR FURTHER INFORMATION CONTACT: Major Harlye S.M. Carlton, USMC, (703) 
963-9299 or [email protected]. The JSC Web site is located at: 
http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION:

Annex

    Section 1: The Discussion to Part IV of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) A new Discussion is inserted immediately after Paragraph 
40.c.1. and reads as follows:
    ``Bona fide suicide attempts should not be charged as criminal 
offenses. When making a determination whether the injury by the service 
member was a bona fide suicide attempt, the convening authority should 
consider factors including, but not limited to, health conditions, 
personal stressors, and DoD policy related to suicide prevention.''
    (b) A new Discussion is inserted immediately after Paragraph 
103a.c.1. and reads as follows:
    ``Bona fide suicide attempts should not be charged as criminal 
offenses. When making a determination whether the injury by the service 
member was a bona fide suicide attempt, the convening authority should 
consider factors including, but not limited to, health conditions, 
personal stressors, and DoD policy related to suicide prevention.''
    Sec. 2: Appendix 22 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) The Note at the beginning of the first paragraph, Section I, 
General Provisions, is deleted.
    (b) Section I, General Provisions, is amended by adding the 
following after the final paragraph:
    ``2013 Amendment. On December 1, 2011, the Federal Rules of 
Evidence were amended by restyling the rules, making them simpler to 
understand and use, without changing the substantive meaning of any 
rule.
    In light of the amendments to the Federal Rules of Evidence, 
significant changes to the Military Rules of Evidence (Mil. R. Evid.) 
were implemented by Executive Order 13643, dated May 15, 2013. In 
addition to stylistic changes that harmonize the Mil. R. Evid. with the 
Federal Rules, the changes also ensure that the rules address the 
admissibility of evidence, rather than the conduct of the individual 
actors. Like the Federal Rules of Evidence, these rules ultimately 
dictate whether evidence is admissible and, therefore, it is 
appropriate to phrase the rules with admissibility as the focus, rather 
than a focus on the actor (i.e., the commanding officer, military 
judge, accused, etc.).
    The rules were also reformatted, and the new format achieves a 
clearer presentation. This was accomplished by indenting paragraphs 
with headings and hanging indents to allow the practitioner to 
distinguish between different subsections of the rules. The restyled 
rules also reduce the use of inconsistent terms that are intended to 
mean the same thing but may, because of the inconsistent use, be 
misconstrued by the practitioner to mean something different.
    While most of the changes avoid any style improvement that might 
result in a substantive change in the application of the rule, some of 
those changes to the rules were proposed with the express purpose of 
changing the substantive content of the rule in order to affect the 
application of the rule in practice. The analysis of each rule clearly 
indicates whether the drafters intended the changes to be substantive 
or merely stylistic. The reader is encouraged to consult the analysis 
of each rule if he or she has questions as to whether the drafters 
intended a change to the rule to have an effect on a ruling of 
admissibility.''
    (c) The analysis following Mil. R. Evid. 101 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. In subsection (a), the phrase ``including summary 
courts-martial'' was removed. The drafters recommended removing this 
phrase because Rule 1101 already addresses the applicability of these 
rules to summary courts-martial. In subsection (b), the word ``shall'' 
was changed to ``will'' in accordance with the approach of the Advisory 
Committee on Evidence Rules to minimize the use of words such as 
``shall'' and ``should'' because of the potential disparity in 
application and interpretation of whether the word is precatory or 
prescriptive. See Fed. R. Evid. 101, Restyled Rules Committee Note. The 
drafters did not intend this amendment to change any result in any 
ruling on evidence admissibility.
    The discussion sections do not have the force of law and may be 
changed without an Executive Order, as warranted by changes in 
applicable case law. The discussion sections should be considered 
treatise material and are non-binding on the practitioner.
    This revision is stylistic and aligns this rule with the Federal 
Rules of Evidence. The drafters did not intend to change any result in 
any ruling on evidence admissibility.''
    (d) The analysis following Mil. R. Evid. 103 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (e) The analysis following Mil. R. Evid. 104 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (f) The title of the analysis section of Mil. R. Evid. 105 is 
changed to ``Limiting evidence that is not admissible against other 
parties or for other purposes.''
    (g) The analysis following Mil. R. Evid. 105 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (h) The analysis following Mil. R. Evid. 106 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (i) The analysis following Mil. R. Evid. 201 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. Former subsection (d) was subsumed 
into subsection (c) and the remaining subsections were renumbered 
accordingly. The drafters did not intend to change any result in any 
ruling on evidence admissibility.''
    (j) The numbering and title of the analysis section of Mil. R. 
Evid. 201A is

[[Page 15280]]

changed to ``Rule 202 Judicial notice of law.''
    (k) The analysis following Mil. R. Evid. 202 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Former Rule 201A was renumbered so that it now 
appears as Rule 202. In previous editions, Rule 202 did not exist and 
therefore no other rules were renumbered as a result of this change. 
The phrase ``in accordance with Mil. R. Evid. 104'' was added to 
subsection (b). This amendment clarifies that Rule 104 controls the 
military judge's relevancy determination.
    This revision is stylistic and aligns this rule with the Federal 
Rules of Evidence. The drafters did not intend to change any result in 
any ruling on evidence admissibility.''
    (l) The analysis following Mil. R. Evid. 301 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. In subsection (d), the word ``answer'' should be 
defined as ``a witness's . . . response to a question posed.'' Black's 
Law Dictionary 100 (8th ed. 2004). Subsection (d) only applies when the 
witness's response to the question posed may be incriminating. It does 
not apply when the witness desires to make a statement that is 
unresponsive to the question asked for the purpose of gaining 
protection from the privilege.
    Former subsections (d) and (f)(2) were combined; this change makes 
the rule easier to use. The issues typically arise chronologically in 
the course of a trial, because a witness often testifies on direct 
without asserting the privilege and then, during the ensuing cross-
examination, asserts the privilege.
    Former subsection (b)(2) was moved to a discussion section; the 
drafters recommended this change because subsection (b)(2) addresses 
conduct rather than the admissibility of evidence. See supra, General 
Provisions Analysis. The word ``should'' was changed to ``may;'' the 
drafters proposed this recommendation in light of CAAF's holding in 
United States v. Bell, 44 M.J. 403 (C.A.A.F. 1996). In that case, CAAF 
held that Congress did not intend for Article 31(b) warnings to apply 
at trial, and noted that courts have the discretion, but not an 
obligation, to warn witnesses on the stand. Id. at 405-06. If a member 
testifies at an Article 32 hearing or court-martial without receiving 
Article 31(b) warnings, his or her Fifth Amendment rights have not been 
violated and those statements can be used against him or her at 
subsequent proceedings. Id.
    In subsection (e), the phrase ``concerning the issue of guilt or 
innocence'' was removed; the drafters recommended this change because 
this subsection applies to the presentencing phase of the trial as well 
as the merits phase. The use of the term ``concerning the issue of 
guilt or innocence'' incorrectly implied that the subsection only 
referred to the merits phase. The rule was renamed ``Limited Waiver,'' 
changed from ``Waiver by the accused''; the drafters recommended this 
change to indicate that when an accused who is on trial for two or more 
offenses testifies on direct as to only one of the offenses, he or she 
has only waived his or her rights with respect to that offense and no 
other. This subsection was moved earlier in the rule and renumbered; 
the drafters recommended this change to address the issue of limited 
waivers earlier because of the importance of preserving the accused's 
right against self-incrimination.
    The remaining subsections were renumbered as appropriate. This 
revision is stylistic and aligns this rule with the Federal Rules of 
Evidence. The drafters did not intend to change any result in any 
ruling on evidence admissibility.''
    (m) The analysis following Mil. R. Evid. 302 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (n) The analysis following Mil. R. Evid. 303 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and addresses 
admissibility rather than conduct. See supra, General Provisions 
Analysis. The drafters did not intend to change any result in any 
ruling on evidence admissibility.''
    (o) The analysis following Mil. R. Evid. 304 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Former subsection (c), which contains definitions 
of words used throughout the rule, was moved; it now immediately 
follows subsection (a) and is highly visible to the practitioner. 
Former subsection (h)(3), which discusses denials, was moved to 
subsection (a)(2); it is now included near the beginning of the rule 
and highlights the importance of an accused's right to remain silent. 
The remaining subsections were moved and renumbered; the rule now 
generally follows the chronology of how the issues might arise at 
trial. The drafters did not intend to change any result in any ruling 
on evidence admissibility.
    In subsection (b), the term ``allegedly'' was added. The term 
references derivative evidence and clarifies that evidence is not 
derivative unless a military judge finds, by a preponderance of the 
evidence, that it is derivative.
    In subsections (c)(5), (d), (f)(3)(A), and (f)(7), the word 
``shall'' was replaced with ``will'' or ``must.'' The drafters agree 
with the approach of the Advisory Committee on Evidence Rules to 
minimize the use of words such as ``shall'' because of the potential 
disparity in application and interpretation of whether the word is 
precatory or prescriptive.
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (p) The analysis following Mil. R. Evid. 305 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The definition of ``person subject to the code'' 
was revised. The change clarifies that the rule includes a person 
acting as a knowing agent only in subsection (c). Subsection (c) covers 
the situation where a person subject to the code is interrogating an 
accused, and therefore an interrogator would include a knowing agent of 
a person subject to the code, such as local law enforcement acting at 
the behest of a military investigator. The term ``person subject to the 
code'' is also used in subsection (f), which discusses a situation in 
which a person subject to the code is being interrogated. If an agent 
of a person subject to the code is being interrogated, subsection (f) 
is inapplicable, unless that agent himself or herself is subject to the 
code and is suspected of an offense.
    The definition of ``custodial interrogation'' was moved to 
subsection (b) from subsection (d) and the definitions are now co-
located. The definition is derived from Miranda v. Arizona, 384 U.S. 
436, 444-45 (1966), and Berkemer v. McCarty, 468 U.S. 420, 442 (1984).
    ``Accused'' is defined as ``[a] person against whom legal 
proceedings have been initiated.'' Black's Law Dictionary 23 (8th ed. 
2004). ``Suspect'' is defined as ``[a] person believed to have 
committed a crime or offense.'' Id. at 1486. In subsection (c)(1), the 
drafters recommended using the word ``accused'' in the first sentence 
because the rule generally addresses the

[[Page 15281]]

admissibility of a statement at a court-martial at which legal 
proceedings have been initiated against the individual. Throughout the 
remainder of the rule, the drafters recommended using ``accused'' and 
``suspect'' together to elucidate that an interrogation that triggers 
the need for Article 31 warnings will often take place before the 
individual has become an accused and is still considered only a 
suspect.
    Although not specifically outlined in subsection (c), interrogators 
and investigators should fully comply with the requirements of Miranda. 
When a suspect is subjected to custodial interrogation, the prosecution 
may not use statements stemming from that custodial interrogation 
unless it demonstrates that the suspect was warned of his or her 
rights. 384 U.S. at 444. At a minimum, Miranda requires that ``the 
person must be warned that he has a right to remain silent, that any 
statement he does make may be used as evidence against him, and that he 
has a right to the presence of an attorney, either retained or 
appointed. The defendant may waive effectuation of these rights, 
provided the waiver is made voluntarily, knowingly and intelligently.'' 
Id. A person subject to the code who is being interrogated may be 
entitled to both Miranda warnings and Article 31(b) warnings, depending 
on the circumstances.
    The titles of subsections (c)(2) and (c)(3) were changed to ``Fifth 
Amendment Right to Counsel'' and ``Sixth Amendment Right to Counsel'' 
respectively; the drafters recommended this change because 
practitioners are more familiar with those terms. In previous editions, 
the subsections did not expressly state which right was implicated. 
Although the rights were clear from the text of the former rules, the 
new titles will allow practitioners to quickly find the desired rule.
    Subsection (c)(3) is entitled ``Sixth Amendment Right to Counsel'' 
even though the protections of subsection (c)(3) exceed the 
constitutional minimal standard established by the Sixth Amendment as 
interpreted by the Supreme Court in Montejo v. Louisiana, 556 U.S. 778 
(2009). In Montejo, the Court overruled its holding in Michigan v. 
Jackson, 475 U.S. 625 (1986), and held that a defendant's request for 
counsel at an arraignment or similar proceeding or an appointment of 
counsel by the court does not give rise to the presumption that a 
subsequent waiver by the defendant during a police-initiated 
interrogation is invalid. 556 U.S. at 797-98. In the military system, 
defense counsel is detailed to a court-martial. R.C.M. 501(b). The 
accused need not affirmatively request counsel. Under the Supreme 
Court's holding in Montejo, the detailing of defense counsel would not 
bar law enforcement from initiating an interrogation with the accused 
and seeking a waiver of the right to have counsel present. However, 
subsection (c)(3) provides more protection than the Supreme Court 
requires. Under this subsection, if an accused is represented by 
counsel, either detailed or retained, he or she may not be interrogated 
without the presence of counsel. This is true even if, during the 
interrogation, the accused waives his or her right to have counsel 
present. If charges have been preferred but counsel has not yet been 
detailed or retained, the accused may be interrogated if he or she 
voluntarily waives his or her right to have counsel present.
    The words ``after such request'' were added to subsection (c)(2) 
and elucidate that any statements made prior to a request for counsel 
are admissible, assuming, of course, that Article 31(b) rights were 
given. Without that phrase, the rule could be read to indicate that all 
statements made during the interview, even those made prior to the 
request, were inadmissible. The drafters did not intend such a meaning, 
leading to this recommended change.
    The drafters recommended changing the word ``shall'' to ``will'' in 
subsections (a), (d), and (f). The drafters agree with the approach of 
the Advisory Committee on Evidence Rules to minimize the use of 
``shall'' because of the potential disparity in application and 
interpretation of whether the word is precatory or prescriptive.
    In subsection (e)(1), the requirement that the accused's waiver of 
the privilege against self-incrimination and the waiver of the right to 
counsel must be affirmative was retained. This rule exceeds the minimal 
constitutional requirement. In Berghuis v. Thompkins, 560 U.S. 370 
(2010), the defendant remained mostly silent during a three-hour 
interrogation and never verbally stated that he wanted to invoke his 
rights to counsel and to remain silent. The Supreme Court held that the 
prosecution did not need to show that the defendant expressly waived 
his rights, and that an implicit waiver is sufficient. Id. at 384. 
Despite the Supreme Court's holding, under this rule, in order for a 
waiver to be valid, the accused or suspect must actually take 
affirmative action to waive his or her rights. This rule places a 
greater burden on the government to show that the waiver is valid, and 
provides more protection to the accused or suspect than is required 
under the Berghuis holding.
    In subsection (f)(2), the word ``abroad'' was replaced with 
``outside of a state, district, commonwealth, territory, or possession 
of the United States.'' This change clearly defines where the rule 
regarding foreign interrogations applies.
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (q) The analysis following Mil. R. Evid. 311 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The definition of ``unlawful'' was moved from 
subsection (c) to subsection (b) and now immediately precedes the 
subsection in which the term is first used in the rule. Other 
subsections were moved and now generally follow the order in which the 
issues described in the subsections arise at trial. The subsections 
were renumbered and titled; this change makes it easier for the 
practitioner to find the relevant part of the rule. Former subsection 
(d)(2)(c), addressing a motion to suppress derivative evidence, was 
subsumed into subsection (d)(1). This change reflects how a motion to 
suppress seized evidence must follow the same procedural requirements 
as a motion to suppress derivative evidence.
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (r) The analysis following Mil. R. Evid. 312 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The last sentence of former subsection (b)(2) was 
moved to a discussion paragraph; the drafters recommended this change 
because it addresses the conduct of the examiner rather than the 
admissibility of evidence. See supra, General Provisions Analysis. 
Failure to comply with the requirement that a person of the same sex 
conduct the examination does not make the examination unlawful or the 
evidence inadmissible.
    In subsection (c)(2)(a), the words ``clear indication'' were 
replaced with ``probable cause.'' ``Clear indication'' was not well-
understood by practitioners nor properly defined in case law, whereas 
``probable cause'' is a recognized Fourth Amendment term. The use of 
the phrase ``clear indication'' likely came from the Supreme Court's

[[Page 15282]]

holding in Schmerber v. California, 384 U.S. 757 (1966). In that case, 
the Court stated: ``In the absence of a clear indication that in fact 
such evidence will be found, these fundamental human interests require 
law officers to suffer the risk that such evidence may disappear unless 
there is an immediate search.'' Id. at 770. However, in United States 
v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court 
clarified that it did not intend to create a separate Fourth Amendment 
standard when it used the words ``clear indication.'' Id. at 540 
(``[W]e think that the words in Schmerber were used to indicate the 
necessity for particularized suspicion that the evidence sought might 
be found within the body of the individual, rather than as enunciating 
still a third Fourth Amendment threshold between `reasonable suspicion' 
and `probable cause.' ''). The appropriate standard for a search under 
subsection (c)(2)(a) is probable cause. The President's adoption of the 
probable cause standard raised the level of suspicion required to 
perform a search under this subsection beyond that which was required 
in previous versions of this rule. The same reasoning applies to the 
change in subsection (d), where the words ``clear indication'' were 
replaced with ``probable cause.'' This approach is consistent with the 
Court of Military Appeals' opinion in United States v. Bickel, 30 M.J. 
277, 279 (C.M.A. 1990) (``We have no doubt as to the constitutionality 
of such searches and seizures based on probable cause'').
    In subsection (d), the term ``involuntary'' was replaced with 
``nonconsensual'' for the sake of consistency and uniformity throughout 
the subsection; the drafters did not intend to change the rule in any 
practical way by using ``nonconsensual'' in the place of 
``involuntary.''
    A discussion paragraph was added following subsection (e) to 
address a situation in which a person is compelled to ingest a 
substance in order to locate property within that person's body. This 
paragraph was previously found in subsection (e); the drafters 
recommended removing it from the rule itself because it addresses 
conduct rather than the admissibility of evidence. See supra, General 
Provisions Analysis.
    The last line of subsection (f) was added; this change conforms the 
rule with CAAF's holding in United States v. Stevenson, 66 M.J. 15 
(C.A.A.F. 2008). In Stevenson, the court held that any additional 
intrusion, beyond what is necessary for medical treatment, is a search 
within the meaning of the Fourth Amendment. Id. at 19 (``the Supreme 
Court has not adopted a de minimis exception to the Fourth Amendment's 
warrant requirement''). The drafters recommended moving the first line 
of former subsection (f) to a discussion paragraph because it addresses 
conduct rather than the admissibility of evidence, and is therefore 
more appropriately addressed in a discussion paragraph. See supra, 
General Provisions Analysis.
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (s) The analysis following Mil. R. Evid. 313 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The definition of ``inventory was added to 
subsection (c) and further distinguishes inventories from inspections. 
This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (t) The analysis following Mil. R. Evid. 314 is amended by adding 
the following language after subparagraph (k):
    ``2013 Amendment. Language was added to subsection (a). This 
language elucidates that the rules as written afford at least the 
minimal amount of protection required under the Constitution as applied 
to service members. If new case law is developed after the publication 
of these rules which raises the minimal constitutional standards for 
the admissibility of evidence, that standard will apply to evidence 
admissibility, rather than the standard established under these rules.
    Subsection (c) limits the ability of a commander to search persons 
or property upon entry to or exit from the installation alone, rather 
than anywhere on the installation, despite the indication of some 
courts in dicta that security personnel can search a personally owned 
vehicle anywhere on a military installation based on no suspicion at 
all. See, e.g., United States v. Rogers, 549 F.2d 490, 493-94 (8th Cir. 
1976). Allowing suspicionless searches anywhere on a military 
installation too drastically narrows an individual's privacy interest. 
Although individuals certainly have a diminished expectation of privacy 
when they are on a military installation, they do not forgo their 
privacy interest completely.
    A Discussion section was added below subsection (c) to address 
searches conducted contrary to a treaty or agreement. That material was 
previously located in subsection (c). The drafters recommended moving 
it to the Discussion because it addresses conduct rather than the 
admissibility of evidence. See supra, General Provisions Analysis.
    Although not explicitly stated in subsection (e)(2), the Supreme 
Court's holding in Georgia v. Randolph, 547 U.S. 103 (2006), applies to 
this subsection. See id. at 114-15 (holding that a warrantless search 
was unreasonable if a physically present co-tenant expressly refused to 
give consent to search, even if another co-tenant had given consent).
    In subsection (f)(2), the phrase ``reasonably believed'' was 
changed to ``reasonably suspected.'' This change aligns the rule with 
recent case law and alleviates any confusion that ``reasonably 
believed'' established a higher level of suspicion required to conduct 
a stop-and-frisk than required by the Supreme Court in Terry v. Ohio, 
392 U.S. 1 (1968). The ``reasonably suspected'' standard conforms to 
the language of the Supreme Court in Arizona v. Johnson, 555 U.S. 323, 
326 (2009), in which the Court stated: ``To justify a pat down of the 
driver or a passenger during a traffic stop, however, just as in the 
case of a pedestrian reasonably suspected of criminal activity, the 
police must harbor reasonable suspicion that the person subjected to 
the frisk is armed and dangerous.'' This standard, and not a higher 
one, is required before an individual can be stopped and frisked under 
this subsection. Additionally, a discussion paragraph was added 
following this subsection to further expound on the nature and scope of 
the search, based on case law. See, e.g., Terry, 392 U.S. at 30-31; 
Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977).
    In subsection (f)(3), the drafters recommended changing the phrase 
``reasonable belief'' to ``reasonable suspicion'' for the same reasons 
discussed above. The discussion section was added to provide more 
guidance on the nature and scope of the search, based on case law. See, 
e.g., Michigan v. Long, 463 U.S. 1032, 1049 (1983) (``the search of the 
passenger compartment of an automobile, limited to those areas in which 
a weapon may be placed or hidden, is permissible if the police officer 
possesses a reasonable belief based on `specific and articulable facts 
which, taken together with the rational inferences from those facts, 
reasonably warrant' the officers in believing that the suspect is 
dangerous and the suspect may gain immediate control of

[[Page 15283]]

weapons''); Mimms, 434 U.S. at 111 (no Fourth Amendment violation when 
the driver was ordered out of the car after a valid traffic stop but 
without any suspicion that he was armed and dangerous because ``what is 
at most a mere inconvenience cannot prevail when balanced against 
legitimate concerns for the officer's safety''); Maryland v. Wilson, 
519 U.S. 408 (1997) (extending the holding in Mimms to passengers as 
well as drivers).
    The language from former subsection (g)(2), describing the search 
of an automobile incident to a lawful arrest of an occupant, was moved 
to the discussion paragraph immediately following subsection (f)(3). 
The drafters recommended this change because it addresses conduct 
rather than the admissibility of evidence. See supra, General 
Provisions Analysis. The discussion section is based on the Supreme 
Court's holding in Arizona v. Gant, 556 U.S. 332, 351 (2009) (``Police 
may search a vehicle incident to a recent occupant's arrest only if the 
arrestee is within reaching distance of the passenger compartment at 
the time of the search or it is reasonable to believe the vehicle 
contains evidence of the offense of arrest'').
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (t) The analysis following Mil. R. Evid. 315 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Former subsection (h) was moved so that it 
immediately follows subsection (a). The drafters recommended changing 
this language to a discussion paragraph because it generally applies to 
the entire rule, rather than any particular subsection and also because 
it addresses conduct rather than the admissibility of evidence. See 
supra, General Provisions Analysis.
    In subsection (b), the term ``authorization to search'' was changed 
to ``search authorization.'' This amendment aligns the rule with the 
term more commonly used by practitioners and law enforcement. The 
drafters recommended moving former subsection (c)(4) to a discussion 
paragraph immediately following subsection (c) because it addresses 
conduct rather than the admissibility of evidence. See supra, General 
Provisions Analysis.
    The second sentence in former subsection (d)(2) was moved to 
subsection (d). This change elucidates that its content applies to both 
commanders under subsection (d)(1) and military judges or magistrates 
under subsection (d)(2). The drafters made this recommendation in 
reliance on CAAF's decision in United States v. Huntzinger, 69 M.J. 1 
(C.A.A.F. 2010), which held that a commander is not per se disqualified 
from authorizing a search under this rule even if he or she has 
participated in investigative activities in furtherance of his or her 
command responsibilities.
    Former subsection (h)(4), entitled, ``Search warrants,'' was moved 
to subsection (e), now entitled ``Who May Search.'' This change co-
locates it with the subsection discussing the execution of search 
authorizations.
    In subsection (f)(2), the word ``shall'' was changed to ``will.'' 
This change brings the rule in conformance with the approach of the 
Advisory Committee on Evidence Rules to minimize the use of words such 
as ``shall'' and ``should'' because of the potential disparity in 
application and interpretation of whether the word is precatory or 
prescriptive. In recommending this amendment, the drafters did not 
intend to change any result in any ruling on evidence admissibility.
    Subsection (g) was revised. The drafters' intent behind this 
revision was to include a definition of exigency rather than to provide 
examples that may not encompass the wide range of situations where 
exigency might apply. The definition is derived from Supreme Court 
jurisprudence. See Kentucky v. King, 563 U.S. 452 (2011). The drafters 
recommended retaining language concerning military operational 
necessity as an exigent circumstance because this rule may be applied 
to a unique military context where it might be difficult to communicate 
with a person authorized to issue a search authorization. See, e.g., 
United States v. Rivera, 10 M.J. 55 (C.M.A. 1980) (noting that exigency 
might exist because of difficulties in communicating with an 
authorizing official, although the facts of that case did not support 
such a conclusion). Nothing in this rule would prohibit a law 
enforcement officer from entering a private residence without a warrant 
to protect the individuals inside from harm, as that is not a search 
under the Fourth Amendment. See, e.g., Brigham City v. Stuart, 547 U.S. 
398 (2006) (holding that, regardless of their subjective motives, 
police officers were justified in entering a home without a warrant, 
under exigent circumstances exception to warrant requirement, as they 
had an objectively reasonable basis for believing that an occupant was 
seriously injured or imminently threatened with injury).
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (u) The analysis following Mil. R. Evid. 316 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. In subsection (a), the word ``reasonable'' was 
added and aligns the rule with the language found in the Fourth 
Amendment of the U.S. Constitution and Mil. R. Evid. 314 and 315.
    In subsection (c)(5)(C), the drafters intended the term 
``reasonable fashion'' to include all action by law enforcement that 
the Supreme Court has established as lawful in its plain view doctrine. 
See, e.g., Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (holding that 
there was no search when an officer merely recorded serial numbers that 
he saw on a piece of stereo equipment, but that the officer did conduct 
a search when he moved the equipment to access serial numbers on the 
bottom of the turntable); United States v. Lee, 274 U.S. 559, 563 
(1927) (use of a searchlight does not constitute a Fourth Amendment 
violation). The drafters did not intend to establish a stricter 
definition of plain view than that required by the Constitution, as 
interpreted by the Supreme Court. An officer may seize the item only if 
his or her conduct satisfies the three-part test prescribed by the 
Supreme Court: (1) He or she does not violate the Fourth Amendment by 
arriving at the place where the evidence could be plainly viewed; (2) 
its incriminating character is ``readily apparent''; and (3) he or she 
has a lawful right of access to the object itself. Horton v. 
California, 496 U.S. 128, 136-37 (1990).
    This revision is stylistic and addresses admissibility rather than 
conduct. See supra, General Provisions Analysis. The drafters did not 
intend to change any result in any ruling on evidence admissibility.''
    (v) The analysis following Mil. R. Evid. 317 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Former subsections (b) and (c)(3) were moved to a 
discussion paragraph. The drafters recommended this change because they 
address conduct rather than the admissibility of evidence. See supra, 
General Provisions Analysis.

[[Page 15284]]

    This revision is stylistic. The drafters had no intent to change 
any result in any ruling on evidence admissibility.''
    (w) The analysis following Mil. R. Evid. 321 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (x) The title of the analysis section of Mil. R. Evid. 401 is 
changed to ``Test for relevant evidence.''
    (y) The analysis following Mil. R. Evid. 401 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (z) The title of the analysis section of Mil. R. Evid. 402 is 
changed to ``General admissibility of relevant evidence.''
    (aa) The analysis following Mil. R. Evid. 402 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (bb) The analysis following Mil. R. Evid. 403 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (cc) The title of the analysis section of Mil. R. Evid. 404 is 
changed to ``Character evidence; crime or other acts.''
    (dd) The analysis following Mil. R. Evid. 404 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The word ``alleged'' was added to references to 
the victim throughout this rule. This revision is stylistic and aligns 
this rule with the Federal Rules of Evidence. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (ee) The analysis following Mil. R. Evid. 405 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (ff) The analysis following Mil. R. Evid. 406 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (gg) The analysis following Mil. R. Evid. 407 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (hh) The title of the analysis section of Mil. R. Evid. 408 is 
changed to ``Compromise offers and negotiations.''
    (ii) The analysis following Mil. R. Evid. 408 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (jj) The title of the analysis section of Mil. R. Evid. 409 is 
changed to ``Offers to pay medical and similar expenses.''
    (kk) The analysis following Mil. R. Evid. 409 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (ll) The title of the analysis section of Mil. R. Evid. 410 is 
changed to ``Pleas, plea discussions, and related statements.''
    (mm) The analysis following Mil. R. Evid. 410 is amended by adding 
the following language after the last paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (nn) The analysis following Mil. R. Evid. 411 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (oo) The title of the analysis section of Mil. R. Evid. 413 is 
changed to ``Similar crimes in sexual offense cases.''
    (pp) The analysis following Mil. R. Evid. 413 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The time requirement in subsection (b) was 
changed and aligns with the time requirements in Mil. R. Evid. 412 and 
the Federal Rules of Evidence. This change is also in conformity with 
military practice in which the military judge may accept pleas shortly 
after referral and sufficiently in advance of trial. Additionally, 
subsection (d) was revised and aligns with the Federal Rules of 
Evidence.
    This revision is stylistic. The drafters had no intent to change 
any result in any ruling on evidence admissibility.''
    (qq) The title of the analysis section of Mil. R. Evid. 414 is 
changed to ``Similar crimes in child-molestation cases.''
    (rr) The analysis following Mil. R. Evid. 414 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. The time requirement in subsection (b) was 
changed and aligns with the time requirements in Mil. R. Evid. 412 and 
the Federal Rules of Evidence. This change is also in conformity with 
military practice in which the military judge may accept pleas shortly 
after referral and sufficiently in advance of trial. Additionally, 
subsection (d) was revised and aligns with the Federal Rules of 
Evidence.
    This revision is stylistic. The drafters had no intent to change 
any result in any ruling on evidence admissibility.''
    (ss) The title of the analysis section of Mil. R. Evid. 501 is 
changed to ``Privilege in general.''
    (tt) The analysis following Mil. R. Evid. 501 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (uu) The analysis following Mil. R. Evid. 502 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (vv) The analysis following Mil. R. Evid. 503 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''

[[Page 15285]]

    (ww) The analysis following Mil. R. Evid. 504 is amended by adding 
the following language after the final paragraph:
    ``2011 Amendment. Subsection (c)(2)(D) was added pursuant to 
Executive Order 13593 of December 13, 2011.
    2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (xx) The analysis following Mil. R. Evid. 505 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This rule was significantly restructured. These 
changes bring greater clarity and regularity to military practice. The 
changes focus primarily on expanding the military judge's explicit 
authority to conduct ex parte pretrial conferences in connection with 
classified information and detailing when the military judge is 
required to do so, limiting the disclosure of classified information 
per order of the military judge, specifically outlining the process by 
which the accused gains access to and may request disclosure of 
classified information, and the procedures for using classified 
material at trial. The drafters intended that the changes ensure 
classified information is not needlessly disclosed while at the same 
time ensure that the accused's right to a fair trial is maintained. The 
drafters adopted some of the language from the Military Commissions 
Rules of Evidence and the Classified Information Procedures Act.''
    (yy) The analysis following Mil. R. Evid. 506 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This rule was significantly revised. These 
changes bring greater clarity to the rule and align it with changes 
made to Mil. R. Evid. 505.''
    (zz) The title of the analysis section of Mil. R. Evid. 507 is 
changed to ``Identity of informants.''
    (aaa) The analysis following Mil. R. Evid. 507 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Subsection (b) was added to define terms that are 
used throughout the rule and adding subsection (e)(1) to permit the 
military judge to hold an in camera review upon request by the 
prosecution. This revision is stylistic. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (bbb) The analysis following Mil. R. Evid. 509 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. The language ``courts-martial, military judges'' 
was added to this rule, which now conforms to CAAF's holding in United 
States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009). In that case, CAAF held 
that this rule as it was previously written created an implied 
privilege that protected the deliberative process of a military judge 
from disclosure and that testimony that revealed the deliberative 
thought process of the military judge is inadmissible. Matthews, 68 
M.J. at 38-43. The changes simply express what the court found had 
previously been implied.''
    (ccc) The analysis following Mil. R. Evid. 511 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Titles were added to the subsections of this 
rule, improving the rule's clarity and ease of use.''
    (ddd) The analysis following Mil. R. Evid. 513 is amended by adding 
the following language after the final paragraph:
    ``2011 Amendment. In Executive Order 13593 of December 13, 2011, 
the President removed communications about spouse abuse as an exception 
to the spousal privilege by deleting the words ``spouse abuse'' and 
``the person of the other spouse or'' from Mil. R. Evid. 513(d)(2), 
thus expanding the overall scope of the privilege. The privilege is now 
consistent with Mil. R. Evid. 514 in that spouse victim communications 
to a provider who qualifies as both a psychotherapist for purposes of 
Mil. R. Evid. 513 or as a victim advocate for purposes of Mil. R. Evid. 
514 are covered.
    2013 Amendment. The amendment to subsection (e)(3) further expands 
the military judge's authority and discretion to conduct in camera 
reviews. This revision is stylistic. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (eee) The analysis following Mil. R. Evid. 514 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. Like the psychotherapist-patient privilege 
created by Mil. R. Evid. 513, Mil. R. Evid. 514 establishes a victim 
advocate-victim privilege for investigations or proceedings authorized 
under the Uniform Code of Military Justice. Implemented as another 
approach to improving the military's overall effectiveness in 
addressing the crime of sexual assault, facilitating candor between 
victims and victim advocates, and mitigating the impact of the court-
martial process on victims, the rule was developed in response to 
concerns raised by members of Congress, community groups, and the 
Defense Task Force on Sexual Assault in the Military Services 
(DTFSAMS). In its 2009 report, DTFSAMS noted that: 35 States had a 
privilege for communications between victim advocates and victims of 
sexual assault; victims did not believe they could communicate 
confidentially with medical and psychological support service personnel 
provided by DoD; there was interference with the victim-victim advocate 
relationship and continuing victim advocate services when the victim 
advocate was identified as a potential witness in a court-martial; and 
service members reported being ``re-victimized'' when their prior 
statements to victim advocates were used to cross-examine them in 
court-martial proceedings. Report of the Defense Task Force on Sexual 
Assault in the Military Services, at 69 (Dec. 2009). DTFSAMS 
recommended that Congress ``enact a comprehensive military justice 
privilege for communications between a Victim Advocate and a victim of 
sexual assault.'' Id. at ES-4. The JSC chose to model a proposed Mil. 
R. Evid. 514 on Mil. R. Evid. 513, including its various exceptions, in 
an effort to balance the privacy of the victim's communications with a 
victim advocate against the accused's legitimate needs.
    Under subsection (a) of Mil. R. Evid. 514, the words ``under the 
Uniform Code of Military Justice'' mean that the privilege only applies 
to alleged misconduct that could result in UCMJ proceedings. It does 
not apply in situations in which the alleged offender is not subject to 
UCMJ jurisdiction. The drafters did not intend Mil. R. Evid. 514 to 
apply in any proceeding other than those authorized under the UCMJ. 
However, service regulations dictate how the privilege is applied to 
non-UCMJ proceedings. Furthermore, this rule only applies to 
communications between a victim advocate and the victim of an alleged 
sexual or violent offense.
    Under subsection (b), the definition of ``victim advocate'' 
includes, but is not limited to, personnel performing victim advocate 
duties within the DoD Sexual Assault Prevention and Response Office 
(such as a Sexual Assault Response Coordinator), and the DoD Family 
Advocacy Program (such as a domestic abuse victim advocate). To 
determine whether an official's duties encompass victim advocate 
responsibilities, DoD and military service regulations should be 
consulted. A victim liaison

[[Page 15286]]

appointed pursuant to the Victim and Witness Assistance Program is not 
a ``victim advocate'' for purposes of this rule, nor are personnel 
working within an Equal Opportunity or Inspector General office. For 
purposes of this rule, ``violent offense'' means an actual or attempted 
murder, manslaughter, rape, sexual assault, aggravated assault, 
robbery, assault consummated by a battery, or similar offense. A simple 
assault may be a violent offense where violence has been physically 
attempted or menaced. A mere threatening in words is not a violent 
offense. This rule will apply in situations where there is a factual 
dispute as to whether a sexual or violent offense occurred and whether 
a person actually suffered direct physical or emotional harm from such 
an offense. The fact that such findings have not been judicially 
established shall not prevent application of this rule to alleged 
victims reasonably intended to be covered by this rule.
    Under subsection (d), the exceptions to Mil. R. Evid. 514 are 
similar to the exceptions found in Mil. R. Evid. 513, and the drafters 
intended them to be applied in the same manner. Mil. R. Evid. 514 does 
not include comparable exceptions found within Mil. R. Evid. 513(d)(2) 
and 513(d)(7). Under the ``constitutionally required'' exception, 
communications covered by the privilege would be released only in the 
narrow circumstances where the accused could show harm of 
constitutional magnitude if such communication was not disclosed. The 
drafters intended this relatively high standard of release to preclude 
fishing expeditions for possible statements made by the victim; the 
drafters did not intend it to be an exception that effectively renders 
the privilege meaningless. If a military judge finds that an exception 
to this privilege applies, special care should be taken to narrowly 
tailor the release of privileged communications to only those 
statements that are relevant and whose probative value outweighs unfair 
prejudice. The fact that otherwise privileged communications are 
admissible pursuant to an exception of Mil. R. Evid. 514 does not 
prohibit a military judge from imposing reasonable limitations on 
cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 
(1986); United States v. Gaddis, 70 M.J. 248, 256-57 (C.A.A.F. 2011); 
United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011).''
    (fff) The title of the analysis section of Mil. R. Evid. 601 is 
changed to ``Competency to testify in general.''
    (ggg) The analysis following Mil. R. Evid. 601 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (hhh) The title of the analysis section of Mil. R. Evid. 602 is 
changed to ``Need for personal knowledge.''
    (iii) The analysis following Mil. R. Evid. 602 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (jjj) The title of the analysis section of Mil. R. Evid. 603 is 
changed to ``Oath or affirmation to testify truthfully.''
    (kkk) The analysis following Mil. R. Evid. 603 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (lll) The title of the analysis section of Mil. R. Evid. 604 is 
changed to ``Interpreter.''
    (mmm) The analysis following Mil. R. Evid. 604 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This rule was revised to match the Federal Rules 
of Evidence. However, the word ``qualified'' is undefined both in these 
rules and in the Federal Rules of Evidence. R.C.M. 502(e)(1) states 
that the Secretary concerned may prescribe qualifications for 
interpreters. Practitioners should therefore refer to the Secretary's 
guidance to determine if an interpreter is qualified under this rule. 
This revision is stylistic and aligns this rule with the Federal Rules 
of Evidence. The drafters had no intent to change any result in any 
ruling on evidence admissibility.''
    (nnn) The title of the analysis section of Mil. R. Evid. 605 is 
changed to ``Military judge's competency as a witness.''
    (ooo) The analysis following Mil. R. Evid. 605 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (ppp) The title of the analysis section of Mil. R. Evid. 606 is 
changed to ``Member's competency as a witness.''
    (qqq) The analysis following Mil. R. Evid. 606 is amended by adding 
the following language:
    ``2013 Amendment. The amendment to subsection (b) aligns this rule 
with the Federal Rules of Evidence. This revision is stylistic. The 
drafters had no intent to change any result in any ruling on evidence 
admissibility.''
    (rrr) The title of the analysis section of Mil. R. Evid. 607 is 
changed to ``Who may impeach a witness.''
    (sss) The analysis following Mil. R. Evid. 607 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (ttt) The title of the analysis section of Mil. R. Evid. 608 is 
changed to ``A witness's character for truthfulness or 
untruthfulness.''
    (uuu) The analysis following Mil. R. Evid. 608 is amended by adding 
the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (vvv) The title of the analysis section of Mil. R. Evid. 609 is 
changed to ``Impeachment by evidence of a criminal conviction.''
    (www) The analysis following Mil. R. Evid. 609 is amended by adding 
the following language after the final paragraph:
    ``2011 Amendment. Executive Order 13593 of December 13, 2011, 
amended this rule to conform the rule with the Federal Rules of 
Evidence.
    2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (xxx) The analysis following Mil. R. Evid. 610 is amended by adding 
the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (yyy) The title of the analysis section of Mil. R. Evid. 611 is 
changed to ``Mode and order of examining witnesses and presenting 
evidence.''
    (zzz) The analysis following Mil. R. Evid. 611 is amended by adding 
the following language after the final paragraph:

[[Page 15287]]

    ``2013 Amendment. The amendment to subsection (d)(3) conforms the 
rule with the United States Supreme Court's holding in Maryland v. 
Craig, 497 U.S. 836 (1990), and the Court of Appeals for the Armed 
Forces' holding in United States v. Pack, 65 M.J. 381 (C.A.A.F. 2007). 
In Craig, the Supreme Court held that, in order for a child witness to 
be permitted to testify via closed-circuit one-way video, three factors 
must be met: (1) The trial court must determine that it ``is necessary 
to protect the welfare of the particular child witness''; (2) the trial 
court must find ``that the child witness would be traumatized, not by 
the courtroom generally, but by the presence of the defendant''; and 
(3) the trial court must find ``that the emotional distress suffered by 
the child witness in the presence of the defendant is more than de 
minimis.'' Craig, 497 U.S. at 855-56. In Pack, CAAF held that, despite 
the Supreme Court's decision in Crawford v. Washington, the Supreme 
Court did not implicitly overrule Craig and that all three factors must 
be present in order to permit a child witness to testify remotely. 
Pack, 65 M.J. at 384-85. This rule as previously written contradicted 
these cases because it stated that any one of four factors, rather than 
all three of those identified in Craig, would be sufficient to allow a 
child to testify remotely. The changes ensured that this subsection 
aligned with the relevant case law.
    The drafters took the language for the change to subsection (5) 
from 18 U.S.C. 3509(b)(1)(C), which covers child victims' and child 
witnesses' rights. There is no comparable Federal Rule of Evidence but 
a military judge may find that an Article 39(a) session outside the 
presence of the accused is necessary to make a decision regarding 
remote testimony. The drafters of the change intended to limit the 
number of people present at the Article 39(a) session in order to make 
the child feel more at ease, which is why they recommended adding 
language limiting those present to ``a representative'' of the defense 
and prosecution, rather than multiple representatives.
    This revision is stylistic. The drafters had no intent to change 
any result in any ruling on evidence admissibility.''
    (aaaa) The title of the analysis section of Mil. R. Evid. 612 is 
changed to ``Writing used to refresh a witness's memory.''
    (bbbb) The analysis following Mil. R. Evid. 612 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. The revision to Subsection (b) of this rule is 
stylistic and aligns this rule with the Federal Rules of Evidence. The 
drafters had no intent to change any result in any ruling on evidence 
admissibility.''
    (cccc) The title of the analysis section of Mil. R. Evid. 613 is 
changed to ``Witness's prior statement.''
    (dddd) The analysis following Mil. R. Evid. 613 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (eeee) The title of the analysis section of Mil. R. Evid. 614 is 
changed to ``Court-martial's calling or examining a witness.''
    (ffff) The analysis following Mil. R. Evid. 614 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. In subsection (a), the word ``relevant'' was 
substituted for ``appropriate.'' Relevance is the most accurate 
threshold for admissibility throughout these rules. Additionally, the 
phrase ``Following the opportunity for review by both parties'' was 
added to subsection (b); this change aligns it with the standard 
military practice to allow the counsel for both sides to review a 
question posed by the members and to voice objections before the 
military judge rules on the propriety of the question. This revision is 
stylistic and aligns this rule with the Federal Rules of Evidence. The 
drafters had no intent to change any result in any ruling on evidence 
admissibility.''
    (gggg) The title of the analysis section of Mil. R. Evid. 615 is 
changed to ``Excluding witnesses.''
    (hhhh) The analysis following Mil. R. Evid. 615 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (iiii) The analysis following Mil. R. Evid. 701 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (jjjj) The title of the analysis section of Mil. R. Evid. 702 is 
changed to ``Testimony by expert witnesses.''
    (kkkk) The analysis following Mil. R. Evid. 702 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (llll) The title of the analysis section of Mil. R. Evid. 703 is 
changed to ``Bases of an expert's opinion testimony.''
    (mmmm) The analysis following Mil. R. Evid. 703 is amended by 
adding the following language:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (nnnn) The analysis following Mil. R. Evid. 704 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (oooo) The title of the analysis section of Mil. R. Evid. 705 is 
changed to ``Disclosing the facts or data underlying an expert's 
opinion.''
    (pppp) The analysis following Mil. R. Evid. 705 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (qqqq) The title of the analysis section of Mil. R. Evid. 706 is 
changed to ``Court-appointed expert witnesses.''
    (rrrr) The analysis following Mil. R. Evid. 706 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. Former subsection (b) was removed. The authority 
of the military judge to tell members that he or she has called an 
expert witness is implicit in his or her authority to obtain the 
expert, and therefore the language was unnecessary. Although the 
language has been removed, the military judge may, in the exercise of 
discretion, notify the members that he or she called the expert. This 
revision is stylistic. The drafters had no intent to change any result 
in any ruling on evidence admissibility.''
    (ssss) The analysis following Mil. R. Evid. 707 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic. The drafters had no 
intent to change any result in any ruling on evidence admissibility.''
    (tttt) The title of the analysis section to Mil. R. Evid. 801 is 
changed to

[[Page 15288]]

``Definitions that apply to this section; exclusions from hearsay.''
    (uuuu) The analysis following Mil. R. Evid. 801 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. The title of subsection (d)(2) was changed from 
``Admission by party-opponent'' to ``An Opposing Party's Statement.'' 
This change conforms the rule with the Federal Rules of Evidence. The 
term ``admission'' is misleading because a statement falling under this 
exception need not be an admission and also need not be against the 
party's interest when spoken. In recommending this change, the drafters 
did not intend to change any result in any ruling on evidence 
admissibility.''
    (vvvv) The title of the analysis section of Mil. R. Evid. 802 is 
changed to ``The rule against hearsay.''
    (wwww) The analysis following Mil. R. Evid. 802 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (xxxx) The title of the analysis section of Mil. R. Evid. 803 is 
changed to ``Exceptions to the rule against hearsay--regardless of 
whether the declarant is available as a witness.''
    (yyyy) The analysis following Mil. R. Evid. 803 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. Subsection (24), which stated: ``Other 
Exceptions: [Transferred to Mil. R. Evid. 807]'' was removed. 
Practitioners are generally aware that Mil. R. Evid. 807 covers 
statements not specifically covered in this rule, and therefore the 
subsection was unnecessary. This revision is stylistic and aligns this 
rule with the Federal Rules of Evidence. The drafters had no intent to 
change any result in any ruling on evidence admissibility.''
    (zzzz) The title of the analysis section of Mil. R. Evid. 804 is 
changed to ``Exceptions to the rule against hearsay--when the declarant 
is unavailable as a witness.''
    (aaaaa) The analysis following Mil. R. Evid. 804 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. In subsection (b)(3)(B), the phrase ``and is 
offered to exculpate the accused,'' was left despite the fact that it 
is not included in the current or former versions of the Federal Rules 
of Evidence. While subsection (24) in Mil. R. Evid. 803 was not 
removed, subsection (5) of Mil. R. Evid. 804, which directs 
practitioners to the residual exception in Mil. R. Evid. 807, was not 
removed. Leaving subsection (5) in place avoids having to renumber the 
remaining subsections. Although subsection (5) is not necessary, 
renumbering the subsections within this rule would have a detrimental 
effect on legal research and also would lead to inconsistencies in 
numbering between these rules and the Federal Rules. This revision is 
stylistic and aligns this rule with the Federal Rules of Evidence. The 
drafters did not intend to change any result in any ruling on evidence 
admissibility.''
    (bbbbb) The analysis following Mil. R. Evid. 805 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (ccccc) The title of the analysis section of Mil. R. Evid. 806 is 
changed to ``Attacking and supporting the declarant's credibility.''
    (ddddd) The analysis following Mil. R. Evid. 806 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (eeeee) The analysis following Mil. R. Evid. 807 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (fffff) The title of the analysis section of Mil. R. Evid. 901 is 
changed to ``Authenticating or identifying evidence.''
    (ggggg) The analysis following Mil. R. Evid. 901 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (hhhhh) The title of the analysis section of Mil. R. Evid. 902 is 
changed to ``Evidence that is self-authenticating.''
    (iiiii) The analysis following Mil. R. Evid. 902 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. Language was added to subsection (11) and permits 
the military judge to admit non-noticed documents even after the trial 
has commenced if the offering party shows good cause to do so. This 
revision is stylistic and aligns this rule with the Federal Rules of 
Evidence. The drafters did not intend to change any result in any 
ruling on evidence admissibility.''
    (jjjjj) The title of the analysis section of Mil. R. Evid. 903 is 
changed to ``Subscribing witness's testimony.''
    (kkkkk) The analysis following Mil. R. Evid. 903 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (lllll) The title of the analysis section of Mil. R. Evid. 1001 is 
changed to ``Definitions that apply to this section.''
    (mmmmm) The analysis following Mil. R. Evid. 1001 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (nnnnn) The analysis following Mil. R. Evid. 1002 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (ooooo) The analysis following Mil. R. Evid. 1003 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (ppppp) The title of the analysis section of Mil. R. Evid. 1004 is 
changed to ``Admissibility of other evidence of content.''
    (qqqqq) The analysis following Mil. R. Evid. 1004 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. ''
    (rrrrr) The title of the analysis section of Mil. R. Evid. 1005 is 
changed to ``Copies of public records to prove content.''
    (sssss) The analysis following Mil. R. Evid. 1005 is amended by 
adding the

[[Page 15289]]

following language in a new paragraph following the current paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (ttttt) The title of the analysis section of Mil. R. Evid. 1006 is 
changed to ``Summaries to prove content.''
    (uuuuu) The analysis following Mil. R. Evid. 1006 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (vvvvv) The title of the analysis section of Mil. R. Evid. 1007 is 
changed to ``Testimony or statement of a party to prove content.''
    (wwwww) The analysis following Mil. R. Evid. 1007 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (xxxxx) The title of the analysis section of Mil. R. Evid. 1008 is 
changed to ``Functions of the military judge and the members.''
    (yyyyy) The analysis following Mil. R. Evid. 1008 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (zzzzz) The title of the analysis section of Mil. R. Evid. 1101 is 
changed to ``Applicability of these rules.''
    (aaaaaa) The analysis following Mil. R. Evid. 1101 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (bbbbbb) The analysis following Mil. R. Evid. 1102 is amended by 
adding the following language after the final paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''
    (cccccc) The analysis following Mil. R. Evid. 1103 is amended by 
adding the following language in a new paragraph following the current 
paragraph:
    ``2013 Amendment. This revision is stylistic and aligns this rule 
with the Federal Rules of Evidence. The drafters did not intend to 
change any result in any ruling on evidence admissibility.''

    Dated: March 17, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-06403 Filed 3-21-16; 8:45 am]
 BILLING CODE 5001-06-P