[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Notices]
[Pages 85939-85943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28630]


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

DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DOD-2016-OS-0113]


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of proposed amendments to the Manual for Courts-Martial, 
United States (2012 ed.) and notice of public meeting.

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

SUMMARY: The Department of Defense requests comments on proposed 
changes to the Manual for Courts-Martial, United States (2012 ed.) 
(MCM). The proposed changes concern the rules of procedure and evidence 
applicable in trials by courts-martial. The approval authority for 
these changes is the President. These proposed changes have not been 
coordinated within the Department of Defense under DoD Directive 
5500.01, ``Preparing, 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.
    The proposed changes also concern supplementary materials that 
accompany the rules of procedure and evidence and punitive articles. 
The Department of Defense, in conjunction with the Department of 
Homeland Security, publishes these supplementary materials to accompany 
the Manual for Courts-Martial. Supplementary materials consist of 
Discussions (accompanying the Preamble, the Rules for Courts-Martial, 
the Military Rules of Evidence, and the Punitive Articles), Analyses, 
and various appendices. The approval authority for changes to the 
supplementary materials is the General Counsel, Department of Defense; 
changes to these items do not require Presidential approval.

DATES: Comments on the proposed changes must be received no later than 
January 30, 2017. A public meeting for comments will be held on 
December 15, 2016, at 10 a.m. in the United States Court of Appeals for 
the Armed Forces building, 450 E Street NW., Washington, DC 20442-0001.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Major Harlye S.M. Carlton, USMC, 
Executive Secretary, JSC, (703) 693-9299, [email protected]. The 
JSC website is located at http://jsc.defense.gov.

[[Page 85940]]


SUPPLEMENTARY INFORMATION: This notice is provided in accordance with 
DoD Directive 5500.17, ``Role and Responsibilities of the Joint Service 
Committee (JSC) on Military Justice,'' May 3, 2003.
    The JSC invites members of the public to comment on the proposed 
changes; such comments should address specific recommended changes and 
provide supporting rationale.
    This notice also sets forth the date, time, and location for a 
public meeting of the JSC to discuss the proposed changes.
    This notice is intended only to improve the internal management of 
the Federal Government. It is not intended to create any right or 
benefit, substantive or procedural, enforceable at law by any party 
against the United States, its agencies, its officers, or any person.
    The proposed amendments to the MCM are as follows:

Section 1. Part II of the Manual for Courts-Martial, United States, is 
amended as follows:

(a) 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, and civilian counsel, who, in 
accordance with 10 U.S.C. 1044e, are designated as Special Victims' 
Counsel.''

(b) R.C.M. 601(d)(2)(B) is amended to read as follows:

    ``The convening authority has received the advice of the staff 
judge advocate required under Article 34.''

(c) R.C.M. 701(g)(2) is amended to read as follows:

    ``(2) Protective and modifying orders. Upon a sufficient showing 
the military judge may at any time order that the discovery or 
inspection be denied, restricted, or deferred, or make such other order 
as is appropriate. If any rule requires, or upon motion by a party, the 
military judge may review any materials in camera, and permit the party 
to make such showing, in whole or in part, in writing to be inspected 
only by the military judge in camera. If the military judge reviews any 
materials in camera, the entirety of any materials not ordered 
disclosed by the military judge shall be sealed and attached to the 
record of trial as an appellate exhibit. Such material may only be 
examined by reviewing or appellate authorities in accordance with 
R.C.M. 1103A.''

(d) R.C.M. 704(c) is amended to read as follows:

    ``(c) Authority to grant immunity. A general court-martial 
convening authority, or designee, may grant immunity, and may do so 
only in accordance with this rule.''

(e) R.C.M. 704(c)(1) is amended to read as follows:

    ``(1) Persons subject to the code. A general court-martial 
convening authority, or designee, may grant immunity to a person 
subject to the code. However, a general court-martial convening 
authority, or designee, may grant immunity to a person subject to the 
code extending to a prosecution in a United States District Court only 
when specifically authorized to do so by the Attorney General of the 
United States or other authority designated under chapter 601 of title 
18 of the U.S. Code.''

(f) R.C.M. 704(c)(2) is amended to read as follows:

    ``(2) Persons not subject to the code. A general court-martial 
convening authority, or designee, may grant immunity to persons not 
subject to the code only when specifically authorized to do so by the 
Attorney General of the United States or other authority designated 
under chapter 601 of title 18 of the U.S. Code.''

(g) R.C.M. 704(c)(3) is amended to read as follows:

    ``(3) Other limitations. Subject to Service regulations, the 
authority to grant immunity under this rule may be delegated in writing 
at the discretion of the general court-martial convening authority to a 
subordinate special court-martial convening authority. Further 
delegation is not permitted. The authority to grant or delegate 
immunity may be limited by superior authority.''

(h) The first sentence of R.C.M. 704(e) is amended to read as follows:

    ``(e) Decision to grant immunity. Unless limited by superior 
competent authority, the decision to grant immunity is a matter within 
the sole discretion of the general court-martial convening authority, 
or designee.''

(i) The header for R.C.M. 1103(b) is amended to read as follows:

    ``(b) General and special courts-martial.''

(j) R.C.M. 1103(b)(2)(A) is amended to read as follows:

    ``(A) In general. The record of trial in each general and special 
court-martial shall be separate, complete, and independent of any other 
document.''

(k) R.C.M. 1103(b)(3)(G) is amended to read as follows:

    ``(G) Any post-trial recommendation of the staff judge advocate or 
legal officer and proof of service on defense counsel in accordance 
with R.C.M. 1106(f)(1);''

(l) R.C.M. 1103(b)(3)(H) is amended to read as follows:

    ``(H) Any response by defense counsel to any post-trial review;''

(m) R.C.M. 1103(b)(3)(J) is amended to read as follows:

    ``(J) Any statement as to why it is impracticable for the convening 
authority to act;''

(n) R.C.M. 1103(c) is amended to read as follows:

    ``(c) [DELETED]''

(o) R.C.M. 1103A is amended to read as follows:

    ``(a) In general. If the report of preliminary hearing or record of 
trial contains exhibits, proceedings, or other materials ordered sealed 
by the preliminary hearing officer or military judge, counsel for the 
government or trial counsel shall cause such materials to be sealed so 
as to prevent unauthorized examination or disclosure. Counsel for the 
government or trial counsel shall ensure that such materials are 
properly marked, including an annotation that the material was sealed 
by order of the preliminary hearing officer or military judge, and 
inserted at the appropriate place in the original record of trial. 
Copies of the report of preliminary hearing or record of trial shall 
contain appropriate annotations that materials were sealed by order of 
the preliminary hearing officer or military judge and have been 
inserted in the report of preliminary hearing or original record of 
trial. This Rule shall be implemented in a manner consistent with 
Executive Order 13526, concerning classified national security 
information.
    (b) Examination and disclosure of sealed materials. Except as 
provided in the following subsections to this rule, sealed materials 
may not be examined or disclosed.
    (1) Prior to referral. Prior to referral of charges, the following 
individuals may examine and disclose sealed materials only if necessary 
for proper fulfillment of their responsibilities under the Code, this 
Manual, governing directives, instructions, regulations, applicable 
rules for practice and procedure, or rules of professional 
responsibility: The

[[Page 85941]]

judge advocate advising the convening authority who directed the 
Article 32 preliminary hearing; the convening authority who directed 
the Article 32 preliminary hearing; the staff judge advocate to the 
general court-martial convening authority; and the general court-
martial convening authority.
    (2) Referral through authentication. Prior to authentication of the 
record by the military judge, sealed materials may not be examined or 
disclosed in the absence of an order from the military judge based upon 
good cause.
    (3) Authentication through action. After authentication and prior 
to disposition of the record of trial pursuant to R.C.M. 1111, sealed 
materials may not be examined or disclosed in the absence of an order 
from the military judge upon a showing of good cause at a post-trial 
Article 39(a) session directed by the convening authority.
    (4) After action.
    (A) Examination by reviewing and appellate authorities. Reviewing 
and appellate authorities may examine sealed materials when those 
authorities determine that examination is reasonably necessary to a 
proper fulfillment of their responsibilities under the Code, this 
Manual, governing directives, instructions, regulations, applicable 
rules for practice and procedure, or rules of professional 
responsibility.
    (B) Examination by appellate counsel. Appellate counsel may examine 
sealed materials subject to the following procedures:
    (i) Sealed materials released to trial government or defense 
counsel. Materials presented or reviewed at trial and subsequently 
sealed, as well as materials reviewed in camera, released to trial 
government or defense counsel, and subsequently sealed, may be examined 
by appellate counsel upon a colorable showing to the reviewing or 
appellate authority that examination is reasonably necessary to a 
proper fulfillment of their responsibilities under the Code, this 
Manual, governing directives, instructions, regulations, applicable 
rules for practice and procedure, or rules of professional 
responsibility.
    (ii) Sealed materials reviewed in camera but not released to trial 
government or defense counsel. Materials reviewed in camera by a 
military judge, not released to trial government or defense counsel, 
and subsequently sealed may be examined by reviewing or appellate 
authorities. After examination of said materials, the reviewing or 
appellate authority may permit examination by appellate counsel for 
good cause.
    (C) Disclosure. Appellate counsel shall not disclose sealed 
material in the absence of:
    (i) Prior authorization of the Judge Advocate General in the case 
of review under R.C.M. 1201(b) or 1112; or
    (ii) Prior authorization of the appellate court before which a case 
is pending review under R.C.M. 1203 and 1204.
    (D) For purposes of this rule, reviewing and appellate authorities 
are limited to:
    (i) Judge advocates reviewing records pursuant to R.C.M. 1112;
    (ii) Officers and attorneys in the office of the Judge Advocate 
General reviewing records pursuant to R.C.M. 1201(b);
    (iii) Appellate judges of the Courts of Criminal Appeals and their 
professional staffs;
    (iv) The judges of the United States Court of Appeals for the Armed 
Forces and their professional staffs;
    (v) The Justices of the United States Supreme Court and their 
professional staffs; and
    (vi) Any other court of competent jurisdiction.
    (5) Examination of sealed materials. For purposes of this rule, 
``examination'' includes reading, inspecting, and viewing.
    (6) Disclosure of sealed materials. For purposes of this rule, 
``disclosure'' includes photocopying, photographing, disseminating, 
releasing, manipulating, or communicating the contents of sealed 
materials in any way.''

Section 2. Part III of the Manual for Courts-Martial, United States, is 
amended as follows:

(a) Mil. R. Evid. 311(c)(4) is amended to read as follows:

    ``(4) Reliance on Statute or Binding Precedent. Evidence that was 
obtained as a result of an unlawful search or seizure may be used when 
the official seeking the evidence acted in objectively reasonable 
reliance on a statute or on binding precedent later held violative of 
the Fourth Amendment.''

(b) 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 or on binding precedent 
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.''

(c) Mil. R. Evid. 505(l) is amended to read as follows:

    ``(l) Record of Trial. If under this rule any information is 
reviewed in camera by the military judge and withheld from the accused, 
the accused objects to such withholding, and the trial continues to an 
adjudication of guilt of the accused, the entire unaltered text of the 
relevant documents as well as any motions and any materials submitted 
in support thereof must be sealed in accordance with R.C.M. 701(g)(2) 
and 1103A and attached to the record of trial as an appellate exhibit. 
Such material will be made available to reviewing and appellate 
authorities in accordance with R.C.M. 1103A. The record of trial with 
respect to any classified matter will be prepared under R.C.M. 1103(h) 
and 1104(b)(1)(D).''

(d) Mil. R. Evid. 506(m) is amended to read as follows:

    ``(m) Record of Trial. If under this rule any information is 
reviewed in camera by the military judge and withheld from the accused, 
the accused objects to such withholding, and the trial continues to an 
adjudication of guilt of the accused, the entire unaltered text of the 
relevant documents as well as any motions and any materials submitted 
in support thereof must be sealed in accordance with R.C.M. 701(g)(2) 
and 1103A and attached to the record of trial as an appellate exhibit. 
Such material will be made available to reviewing and appellate 
authorities in accordance with R.C.M. 1103A.''

(e) Mil. R. Evid. 513(e)(6) is amended to read as follows:

    ``(6) The motion, related papers, and the record of the hearing 
must be sealed in accordance with R.C.M. 701(g)(2) or 1103A.''

(f) Mil. R. Evid. 514(e)(6) is amended to read as follows:

    ``(6) The motion, related papers, and the record of the hearing 
must be sealed

[[Page 85942]]

in accordance with R.C.M. 701(g)(2) or 1103A.''

Section 3. Appendix 21, Analysis of Rules for Courts-Martial is amended 
as follows:

(a) R.C.M. 704(c) is amended by inserting the following at the end:

    ``2017 Amendment: A new second paragraph was added to the 
Discussion after R.C.M. 704(c). The Response Systems to Adult Sexual 
Assault Crimes Panel's (RSP) June 2014 report recommended a study into 
grants of immunity for victim collateral misconduct in sexual assault 
cases. This new paragraph encourages convening authorities to respond 
to requests for immunity as soon as practicable if an expedited 
response is requested by the victim of an alleged offense. The RSP was 
a congressionally mandated panel tasked to conduct an independent 
review and assessment of the systems used to investigate, prosecute, 
and adjudicate crimes involving adult sexual assault and related 
offenses.''

(b) R.C.M. 704 is amended by inserting the following at the end:

    ``2017 Amendment: Modifications were made throughout R.C.M. 704. 
The Response Systems to Adult Sexual Assault Crimes Panel's (RSP) June 
2014 report recommended a study into grants of immunity for victim 
collateral misconduct in sexual assault cases. Subject to Service 
regulations, these modifications permit general court-martial convening 
authorities to delegate the authority to grant immunity to subordinate 
special court-martial convening authorities and no further. The RSP was 
a congressionally mandated panel tasked to conduct an independent 
review and assessment of the systems used to investigate, prosecute, 
and adjudicate crimes involving adult sexual assault and related 
offenses.''

(c) R.C.M. 1103A is amended by inserting the following at the end:

    ``2017 Amendment: The Rule was reorganized and revised. It better 
addresses the two types of sealed materials commonly found in records 
of trial: Those materials that had been disclosed to trial government 
and defense counsel prior to sealing and those materials that were not 
disclosed to trial government or defense counsel prior to sealing. The 
changes also maintain consistency with R.C.M. 701(g)(2), United States 
v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 
M.J. 434 (C.A.A.F. 1998), by requiring the appellate court or reviewing 
authority to conduct a review of sealed materials on appeal which had 
been reviewed in camera, not disclosed to trial government or defense 
counsel, and subsequently sealed prior to permitting appellate counsel 
the opportunity to examine such sealed matters. Finally, the rule 
better defines the difference between ``examination'' and 
``disclosure'' of sealed materials and the additional authorization 
needed prior to disclosure by appellate counsel.''

Section 4. Appendix 22, Analysis of the Military Rules of Evidence is 
amended as follows:

(a) Mil. R. Evid. 311 is amended by inserting the following at the end:

    ``2017 Amendment: The change to (c)(4) and(d)(5)(A) incorporates 
the Supreme Court's holding in Davis v. United States, 564 U.S. 229 
(2011). In Davis, the Supreme Court found that the exclusionary rule 
did not apply because the police officer acted in objectively 
reasonable reliance on precedent that was binding on the officer at the 
time of the search. Id.''

Section 5. The Discussion to Part II of the Manual for Courts-Martial, 
United States, is amended as follows:

(a) A new Discussion is inserted immediately after R.C.M. 104(b)(1)(B) 
and before R.C.M. 104(b)(2) and reads as follows:

    ``This rule applies when the counsel in question has been detailed, 
assigned, or authorized to represent the client as a defense or special 
victims' counsel. Nothing in this rule prohibits supervisors from 
taking appropriate action for violations of ethical, procedural, or 
other rules, or for conduct outside the scope of representation.
    ``Special Victims' Counsel,'' as used in this rule, includes 
Victims' Legal Counsel within the Navy and Marine Corps.''

(b) The Discussion immediately following R.C.M. 308(a) and before 
R.C.M. 308(b) is amended to read as follows:

    ``When notice is given, a certificate to that effect on the Charge 
Sheet should be completed. See Appendix 4. However, in cases where 
charges are immediately referred after preferral, service of referred 
charges under R.C.M. 602 fulfills the notice requirement of this rule. 
In those cases, the notice certificate on the Charge Sheet need not be 
completed and should be lined out.''

(c) A new paragraph is added at the end of the Discussion immediately 
following R.C.M. 601(d)(2)(B) and before R.C.M. 601(e) and reads as 
follows:

    ``A specification under a charge may not be referred to a general 
court-martial unless the advice of the staff judge advocate concludes 
the specification alleges an offense under the Code, is warranted by 
the evidence, and a court-martial would have jurisdiction over the 
accused and the offense. See Article 34 and R.C.M. 406.''

(d) The first sentence of the Discussion immediately following R.C.M. 
704(c) is amended to read as follows:

    ``Only general court-martial convening authorities or their 
designees are authorized to grant immunity.''

(e) The Discussion immediately following R.C.M. 704(c) is amended by 
inserting a new paragraph in between the first and second paragraphs, 
which reads as follows:

    ``When the victim of an alleged offense requests an expedited 
response to a request for immunity for misconduct that is collateral to 
the underlying offense, the convening authority should respond to the 
request as soon as practicable.''

(f) A new Discussion paragraph is inserted immediately prior to the 
existing paragraph following R.C.M. 704(c)(3) and reads as follows:

    ``A general court-martial convening authority has wide latitude 
under this section to exercise his or her discretion in delegating 
immunity authority. For example, a general court-martial convening 
authority may decide to delegate only the authority for a designee to 
grant immunity for certain offenses, such as a list of specific 
offenses or any offense not warranting a punitive discharge, while 
withholding authority to grant immunity for all others. A general 
court-martial convening authority may also delegate only authority for 
certain categories of grantees, such as victims of alleged sex-related 
offenses.''

(g) A new Discussion is inserted immediately following R.C.M. 1103A(a) 
and prior to R.C.M. 1103A(b) and reads as follows:

    ``Upon request or otherwise for good cause, a military judge may 
seal matters at his or her discretion.
    The terms ``examination'' and ``disclosure'' are defined in (b)(5) 
and (6) of this rule.''

[[Page 85943]]

(h) A Discussion is re-inserted immediately following R.C.M. 
1103A(b)(3) and prior to R.C.M. 1103A(b)(4) and reads as follows:

    ``A convening authority who has granted clemency based upon review 
of sealed materials in the record of trial is not permitted to disclose 
the contents of the sealed materials when providing a written 
explanation of the reason for such action, as directed under R.C.M. 
1107.''

(i) A new Discussion is inserted immediately following R.C.M. 
1103A(b)(4)(B)(ii) and prior to R.C.M. 1103A(b)(4)(C) and reads as 
follows:

    ``For disclosure procedures, see (b)(4)(C) of this rule.''

(j) A new Discussion is inserted immediately following R.C.M. 
1103A(b)(4)(C)(ii) and prior to R.C.M. 1103A(b)(4)(D) and reads as 
follows:

    ``In general, the Judge Advocate General or an appellate court 
should authorize disclosure of sealed material when such disclosure is 
necessary for review. Authorizations may place conditions on 
disclosure.''

Section 6. The Discussion to Part III of the Manual for Courts-Martial, 
United States, is amended as follows:

(a) A new Discussion is inserted immediately after Mil. R. Evid. 506(b) 
and before Mil. R. Evid. 506(c) and reads as follows:

    ``For additional procedures concerning information contained in 
safety investigations, consult Service regulations and DoD Instruction 
6055.07, ``Mishap Notification, Investigation, Reporting, and Record 
Keeping.'' ''

    Dated: November 22, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-28630 Filed 11-28-16; 8:45 am]
 BILLING CODE 5001-06-P