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Manual for Courts-Martial; Publication of Supplementary Materials

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Information about this document as published in the Federal Register.

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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).

SUMMARY:

The JSC hereby publishes Supplementary Materials accompanying the MCM as amended by Executive Orders 13643, 13669, and 13696. The language of the Subsection or Subparagraph immediately preceding the new or amended Discussion has been inserted above each new or amended Discussion within this notice, and all new Analyses are located at the end of this notice. These changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters and Testimony,” June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency. These Supplementary Materials have been approved by the JSC and the General Counsel of the Department of Defense, and shall be applied in conjunction with the rule with which they are associated. The Discussions are effective insofar as the Rules they supplement are effective, but may not be applied earlier than the date of publication in the Federal Register.

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DATES:

The Analysis is effective as of July 8, 2015.

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FOR FURTHER INFORMATION CONTACT:

Capt. Harlye S. Carlton, USMC, (703) 963-9299 or harlye.carlton@usmc.mil. The JSC Web site is located at: http://jsc.defense.gov.

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SUPPLEMENTARY INFORMATION:

Public Comments: The JSC solicited public comments for these changes to the MCM via the Federal Register on October 3, 2014 (79 FR 59938-59959, Docket ID: DoD-2014-OS-0140), held a public meeting at the Court of Appeals for the Armed Forces on December 2, 2014, and published the JSC response to public comments via the Federal Register on February 4, 2015 (80 FR 6057-6060, Docket ID: DoD-2014-OS-0140).

The amendments to the Discussion and Analysis of the MCM are as follows:

Annex

Section 1. Part II, Rules for Courts-Martial, is Amended as Follows:

(a) The Discussion section following R.C.M. 201(a)(2) is amended to read as follows:

(2) The code applies in all places.

Discussion

“Except insofar as required by the Constitution, the Code, or the Manual, such as jurisdiction over persons listed under Article 2(a)(10), jurisdiction of courts-martial does not depend on where the offense was committed.”

(b) A new Discussion section is added immediately after R.C.M. 201(f)(2)(D) to read as follows:

(D) Certain Offenses under Articles 120, 120b, and 125. Notwithstanding subsection (f)(2)(A), special courts-martial do not have jurisdiction over offenses under Article 120(a), 120(b), 120b(a), and 120b(b), forcible sodomy under Article 125, and attempts thereof under Article 80. Such offenses shall not be referred to a special court-martial.

Discussion

“Pursuant to the National Defense Authorization Act for Fiscal Year 2014, only a general court-martial has jurisdiction over penetrative sex offenses under subsections (a) and (b) of Article 120, subsections (a) and (b) of Article 120b, Article 125, and attempts to commit such penetrative sex offenses under Article 80.”

(c) A new Discussion section is added immediately after R.C.M. 305(i)(2)(A)(iv):

(iv) Victim's right to be reasonably heard. A victim of an alleged offense committed by the prisoner has the right to reasonable, accurate, and timely notice of the 7-day review; the right to confer with the representative of the command and counsel for the government, if any, and the right to be reasonably heard during the review. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel. The victim of an alleged offense shall be notified of these rights in accordance with regulations of the Secretary concerned.

Discussion

“Personal appearance by the victim is not required. A victim's right to be reasonably heard at a 7-day review may also be accomplished telephonically, by video teleconference, or by written statement. The right to be heard under this rule includes the right to be heard through counsel.”

(d) A new Discussion section is added immediately after R.C.M. 305(j)(1)(C):

(C) The provisions of subsection (i)(1) or (2) of this rule have not been complied with and information presented to the military judge does not establish sufficient grounds for continued confinement under subsection (h)(2)(B) of this rule.

Discussion

“Upon a motion for release from pretrial confinement, a victim of an alleged offense committed by the prisoner has the right to reasonable, accurate, and timely notice of the motion and any hearing, the right to confer with counsel representing the government, and the right to be reasonably heard. Inability to reasonably afford a victim these rights shall not delay the proceedings. The right to be heard under this rule includes the right to be heard through counsel. See R.C.M. 906(b)(8).”

(e) A new Discussion section is added immediately after R.C.M. 305(n):

(n) Notice to victim of escaped prisoner. A victim of an alleged offense committed by the prisoner for which the prisoner has been placed in pretrial confinement has the right to reasonable, accurate, and timely notice of the escape of the prisoner, unless such notice may endanger the safety of any person.

Discussion

“For purposes of this rule, the term “victim of an alleged offense” means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ.”

(f) The Discussion section following R.C.M. 404(e) is amended to read as follows:

(e) Unless otherwise prescribed by the Secretary concerned, direct a preliminary hearing under R.C.M. 405, and, if appropriate, forward the report of preliminary hearing with the charges to a superior commander for disposition.

Discussion

“A preliminary hearing should be directed when it appears that the charges are of such a serious nature that trial by general court-martial may be warranted. See R.C.M. 405. If a preliminary hearing of the subject matter already has been conducted, see R.C.M. 405(b) and 405(e)(2).”

(g) A new Discussion section is added immediately after R.C.M. 404A(d):

(d) Protective order if privileged information is disclosed. If the government agrees to disclose to the accused information to which the protections afforded by Section V of Part III may apply, the convening authority, or other person designated by regulation of the Secretary concerned, may enter an appropriate protective order, in writing, to guard against the compromise of information disclosed to the accused. The terms of any such protective order may include prohibiting the disclosure of the information except as authorized by the authority issuing the protective order, as well as those terms specified by Mil. R. Evid. 505(g)(2)-(6) or 506(g)(2)-(5).

Discussion

“The purposes of this rule are to provide the accused with the documents used to make the determination to prefer charges and direct a preliminary hearing, and to allow the accused to prepare for the preliminary hearing. This rule is not intended to be a tool for discovery and does not impose the same discovery obligations found in R.C.M. 405 prior to amendments required by the National Defense Authorization Act for Fiscal Year 2014 or R.C.M. 701. Additional rules for disclosure of witnesses and other evidence in the preliminary hearing are provided in R.C.M. 405(g).”

(h) Discussions are added throughout the new R.C.M. 405 as follows:

Rule 405. Preliminary Hearing

(a) In general. Except as provided in subsection (k) of this rule, no charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing in substantial compliance with this rule. A preliminary hearing conducted under this rule is not intended to serve as a Start Printed Page 39079means of discovery and will be limited to an examination of those issues necessary to determine whether there is probable cause to conclude that an offense or offenses have been committed and whether the accused committed it; to determine whether a court-martial would have jurisdiction over the offense(s) and the accused; to consider the form of the charge(s); and to recommend the disposition that should be made of the charge(s). Failure to comply with this rule shall have no effect on the disposition of the charge(s) if the charge(s) is not referred to a general court-martial.

Discussion

“The function of the preliminary hearing is to ascertain and impartially weigh the facts needed for the limited scope and purpose of the preliminary hearing. The preliminary hearing is not intended to perfect a case against the accused and is not intended to serve as a means of discovery or to provide a right of confrontation required at trial. Determinations and recommendations of the preliminary hearing officer are advisory.

Failure to substantially comply with the requirements of Article 32, which failure prejudices the accused, may result in delay in disposition of the case or disapproval of the proceedings. See R.C.M. 905(b)(1) and 906(b)(3) concerning motions for appropriate relief relating to the preliminary hearing.

The accused may waive the preliminary hearing. See subsection (k) of this rule. In such case, no preliminary hearing need be held. However, the convening authority authorized to direct the preliminary hearing may direct that it be conducted notwithstanding the waiver.”

(b) Earlier preliminary hearing. If a preliminary hearing of the subject matter of an offense has been conducted before the accused is charged with an offense, and the accused was present at the preliminary hearing and afforded the rights to counsel, cross-examination, and presentation of evidence required by this rule, no further preliminary hearing is required.

(c) Who may direct a preliminary hearing. Unless prohibited by regulations of the Secretary concerned, a preliminary hearing may be directed under this rule by any court-martial convening authority. That authority may also give procedural instructions not inconsistent with these rules.

(d) Personnel.

(1) Preliminary hearing officer. Whenever practicable, the convening authority directing a preliminary hearing under this rule shall detail an impartial judge advocate certified under Article 27(b), not the accuser, as a preliminary hearing officer, who shall conduct the preliminary hearing and make a report that addresses whether there is probable cause to believe that an offense or offenses have been committed and that the accused committed the offense(s); whether a court-martial would have jurisdiction over the offense(s) and the accused; the form of the charges(s); and a recommendation as to the disposition of the charge(s).

When the appointment of a judge advocate as the preliminary hearing officer is not practicable, or in exceptional circumstances in which the interest of justice warrants, the convening authority directing the preliminary hearing may detail an impartial commissioned officer, who is not the accuser, as the preliminary hearing officer. If the preliminary hearing officer is not a judge advocate, an impartial judge advocate certified under Article 27(b) shall be available to provide legal advice to the preliminary hearing officer.

When practicable, the preliminary hearing officer shall be equal or senior in grade to the military counsel detailed to represent the accused and the government at the preliminary hearing. The Secretary concerned may prescribe additional limitations on the appointment of preliminary hearing officers.

The preliminary hearing officer shall not depart from an impartial role and become an advocate for either side. The preliminary hearing officer is disqualified to act later in the same case in any other capacity.

Discussion

“The preliminary hearing officer, if not a judge advocate, should be an officer in the grade of O-4 or higher. The preliminary hearing officer may seek legal advice concerning the preliminary hearing officer's responsibilities from an impartial source, but may not obtain such advice from counsel for any party or counsel for a victim.”

(2) Counsel to represent the United States. A judge advocate, not the accuser, shall serve as counsel to represent the United States, and shall present evidence on behalf of the government relevant to the limited scope and purpose of the preliminary hearing as set forth in subsection (a) of this rule.

(3) Defense counsel.

(A) Detailed counsel. Except as provided in subsection (d)(3)(B) of this rule, military counsel certified in accordance with Article 27(b) shall be detailed to represent the accused.

(B) Individual military counsel. The accused may request to be represented by individual military counsel. Such requests shall be acted on in accordance with R.C.M. 506(b).

(C) Civilian counsel. The accused may be represented by civilian counsel at no expense to the United States. Upon request, the accused is entitled to a reasonable time to obtain civilian counsel and to have such counsel present for the preliminary hearing. However, the preliminary hearing shall not be unduly delayed for this purpose. Representation by civilian counsel shall not limit the rights to military counsel under subsections (d)(3)(A) and (B) of this rule.

(4) Others. The convening authority who directed the preliminary hearing may also, as a matter of discretion, detail or request an appropriate authority to detail:

(A) A reporter; and

(B) An interpreter.

(e) Scope of preliminary hearing.

(1) The preliminary hearing officer shall limit the inquiry to the examination of evidence, including witnesses, necessary to:

(A) Determine whether there is probable cause to believe an offense or offenses have been committed and whether the accused committed it;

(B) Determine whether a court-martial would have jurisdiction over the offense(s) and the accused;

(C) Consider whether the form of the charge(s) is proper; and

(D) Make a recommendation as to the disposition of the charge(s).

(2) If evidence adduced during the preliminary hearing indicates that the accused committed any uncharged offense(s), the preliminary hearing officer may examine evidence and hear witnesses relating to the subject matter of such offense(s) and make the findings and recommendations enumerated in subsection (e)(1) of this rule regarding such offense(s) without the accused first having been charged with the offense. The accused's rights under subsection (f)(2) of this rule, and, where it would not cause undue delay to the proceedings, subsection (g) of this rule, are the same with regard to both charged and uncharged offenses. When considering uncharged offenses identified during the preliminary hearing, the preliminary hearing officer shall inform the accused of the general nature of each uncharged offense considered, and otherwise afford the accused the same opportunity for representation, cross examination, and presentation afforded during the Start Printed Page 39080preliminary hearing of any charged offense.

Discussion

“Except as set forth in subsection (h) of this rule, the Mil. R. Evid. do not apply at a preliminary hearing. Except as prohibited elsewhere in this rule, a preliminary hearing officer may consider evidence, including hearsay, which would not be admissible at trial.”

(f) Rights of the accused.

(1) Prior to any preliminary hearing under this rule the accused shall have the right to:

(A) Notice of any witnesses that the government intends to call at the preliminary hearing and copies of or access to any written or recorded statements made by those witnesses that relate to the subject matter of any charged offense;

(i) For purposes of this rule, a “written statement” is one that is signed or otherwise adopted or approved by the witness that is within the possession or control of counsel for the government; and

(ii) For purposes of this rule, a “recorded statement” is an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a digital or other recording or a transcription thereof that is within the possession or control of counsel for the government.

(B) Notice of, and reasonable access to, any other evidence that the government intends to offer at the preliminary hearing; and

(C) Notice of, and reasonable access to, evidence that is within the possession or control of counsel for the government that negates or reduces the degree of guilt of the accused for an offense charged.

(2) At any preliminary hearing under this rule the accused shall have the right to:

(A) Be advised of the charges under consideration;

(B) Be represented by counsel;

(C) Be informed of the purpose of the preliminary hearing;

(D) Be informed of the right against self-incrimination under Article 31;

(E) Except in the circumstances described in R.C.M. 804(c)(2), be present throughout the taking of evidence;

(F) Cross-examine witnesses on matters relevant to the limited scope and purpose of the preliminary hearing;

(G) Present matters in defense and mitigation relevant to the limited scope and purpose of the preliminary hearing; and

Discussion

“Unsworn statements by the accused, unlike those made under R.C.M. 1001(c)(2), shall be limited to matters in defense and mitigation.”

(H) Make a statement relevant to the limited scope and purpose of the preliminary hearing.

(g) Production of Witnesses and Other Evidence.

(1) Military Witnesses.

(A) Prior to the preliminary hearing, defense counsel shall provide to counsel for the government the names of proposed military witnesses whom the accused requests that the government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the government shall respond that either: (1) The government agrees that the witness's testimony is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and will seek to secure the witness's testimony for the hearing; or (2) the government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.

(B) If the government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing.

(C) If the government does not object to the proposed defense military witness or the preliminary hearing officer determines that the military witness is relevant, not cumulative, and necessary, counsel for the government shall request that the commanding officer of the proposed military witness make that person available to provide testimony. The commanding officer shall determine whether the individual is available based on operational necessity or mission requirements, except that a victim, as defined in this rule, who declines to testify shall be deemed to be not available. If the commanding officer determines that the military witness is available, counsel for the government shall make arrangements for that individual's testimony. The commanding officer's determination of unavailability due to operational necessity or mission requirements is final. If there is a dispute among the parties, the military witness's commanding officer shall determine whether the witness testifies in person, by video teleconference, by telephone, or by similar means of remote testimony.

Discussion

“A commanding officer's determination of whether an individual is available, as well as the means by which the individual is available, is a balancing test. The more important the testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to deny production of the witness. Based on operational necessity and mission requirements, the witness's commanding officer may authorize the witness to testify by video teleconference, telephone, or similar means of remote testimony. Factors to be considered in making this determination include the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; and the likelihood of significant interference with operational deployment, mission accomplishment, or essential training.”

(2) Civilian Witnesses.

(A) Defense counsel shall provide to counsel for the government the names of proposed civilian witnesses whom the accused requests that the government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the government shall respond that either: (1) The government agrees that the witness's testimony is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and will seek to secure the witness's testimony for the hearing; or (2) the government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.

(B) If the government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing.

(C) If the government does not object to the proposed civilian witness or the preliminary hearing officer determines that the civilian witness's testimony is relevant, not cumulative, and necessary, counsel for the government shall invite the civilian witness to provide Start Printed Page 39081testimony and, if the individual agrees, shall make arrangements for that witness's testimony. If expense to the government is to be incurred, the convening authority who directed the preliminary hearing, or the convening authority's delegate, shall determine whether the witness testifies in person, by video teleconference, by telephone, or by similar means of remote testimony.

Discussion

“Factors to be considered in making this determination include the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; the willingness of the witness to testify in person; and, for child witnesses, the traumatic effect of providing in-person testimony. Civilian witnesses may not be compelled to provide testimony at a preliminary hearing. Civilian witnesses may be paid for travel and associated expenses to testify at a preliminary hearing. See Department of Defense Joint Travel Regulations.”

(3) Other evidence.

(A) Evidence under the control of the government.

(i) Prior to the preliminary hearing, defense counsel shall provide to counsel for the government a list of evidence under the control of the government the accused requests the government produce to the defense for introduction at the preliminary hearing. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the government shall respond that either: (1) The government agrees that the evidence is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and shall make reasonable efforts to obtain the evidence; or (2) the government objects to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.

(ii) If the government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. The preliminary hearing officer shall determine whether the evidence is relevant, not cumulative, and necessary based on the limited scope and purpose of the hearing. If the preliminary hearing officer determines that the evidence shall be produced, counsel for the government shall make reasonable efforts to obtain the evidence.

(B) Evidence not under the control of the government.

(i) Evidence not under the control of the government may be obtained through noncompulsory means or by subpoenas duces tecum issued by counsel for the government in accordance with the process established by R.C.M. 703.

(ii) Prior to the preliminary hearing, defense counsel shall provide to counsel for the government a list of evidence not under the control of the government that the accused requests the government obtain. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the government shall respond that either: (1) the government agrees that the evidence is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and shall issue subpoenas duces tecum for the evidence; or (2) the government objects to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.

(iii) If the government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. If the preliminary hearing officer determines that the evidence is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing and that the issuance of subpoenas duces tecum would not cause undue delay to the preliminary hearing, the preliminary hearing officer shall direct counsel for the government to issue subpoenas duces tecum for the defense-requested evidence. The preliminary hearing officer shall note in the report of preliminary hearing any failure on the part of counsel for the government to issue subpoenas duces tecum directed by the preliminary hearing officer.

Discussion

“A subpoena duces tecum to produce books, papers, documents, data, electronically stored information, or other objects for a preliminary hearing pursuant to Article 32 may be issued by counsel for the government. The preliminary hearing officer has no authority to issue a subpoena duces tecum. However, the preliminary hearing officer may direct counsel for the government to issue a subpoena duces tecum for defense-requested evidence.”

(h) Military Rules of Evidence. The Military Rules of Evidence do not apply in preliminary hearings under this rule except as follows:

(1) Mil. R. Evid. 301-303 and 305 shall apply in their entirety.

(2) Mil. R. Evid. 412 shall apply in any case that includes a charge defined as a sexual offense in Mil. R. Evid. 412(d), except that Mil. R. Evid. 412(b)(1)(C) shall not apply.

(3) Mil. R. Evid., Section V, Privileges, shall apply, except that Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k), and (m); and 514(d)(6) shall not apply.

(4) In applying these rules to a preliminary hearing, the term “military judge,” as used in these rules, shall mean the preliminary hearing officer, who shall assume the military judge's authority to exclude evidence from the preliminary hearing, and who shall, in discharging this duty, follow the procedures set forth in the rules cited in subsections (h)(1)-3) of this rule. However, the preliminary hearing officer is not authorized to order production of communications covered by Mil. R. Evid. 513 and 514.

Discussion

“The prohibition against ordering production of evidence does not preclude a preliminary hearing officer from considering evidence offered by the parties under Mil. R. Evid. 513 or 514.”

(5) Failure to meet the procedural requirements of the applicable rules of evidence shall result in exclusion of that evidence from the preliminary hearing, unless good cause is shown.

Discussion

“Before considering evidence offered under subsection (h)(2), the preliminary hearing officer must determine that the evidence offered is relevant for the limited scope and purpose of the hearing, that the evidence is proper under subsection (h)(2), and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy. The preliminary hearing officer shall set forth any limitations on the scope of such evidence. Evidence offered under subsection (h)(2) must be protected pursuant to the Privacy Act of 1974, 5 U.S.C. 552a. Although Mil. R. Evid. 412(b)(1)(C) allows admission of evidence of the victim's sexual behavior or predisposition at trial when it is constitutionally required, there is no constitutional requirement at an Article 32 hearing. There is likewise no constitutional requirement for a preliminary hearing officer to consider evidence under Mil. R. Evid. 514(d)(6) Start Printed Page 39082at an Article 32 hearing. Evidence deemed admissible by the preliminary hearing officer should be made a part of the report of preliminary hearing. See subsection (j)(2)(C), of this Rule. Evidence not considered, and the testimony taken during a closed hearing, should not be included in the report of preliminary hearing but should be appropriately safeguarded or sealed. The preliminary hearing officer and counsel representing the government are responsible for careful handling of any such evidence to prevent unauthorized viewing or disclosure.”

(i) Procedure.

(1) Generally. The preliminary hearing shall begin with the preliminary hearing officer informing the accused of the accused's rights under subsection (f) of this rule. Counsel for the government will then present evidence. Upon the conclusion of counsel for the government's presentation of evidence, defense counsel may present matters in defense and mitigation consistent with subsection (f) of this rule. For the purposes of this rule, “matters in mitigation” are defined as matters that may serve to explain the circumstances surrounding a charged offense. Both counsel for the government and defense shall be afforded an opportunity to cross-examine adverse witnesses. The preliminary hearing officer may also question witnesses called by the parties. If the preliminary hearing officer determines that additional evidence is necessary to satisfy the requirements of subsection (e) of this rule, the preliminary hearing officer may provide the parties an opportunity to present additional testimony or evidence relevant to the limited scope and purpose of the preliminary hearing. The preliminary hearing officer shall not consider evidence not presented at the preliminary hearing. The preliminary hearing officer shall not call witnesses sua sponte.

Discussion

“A preliminary hearing officer may only consider evidence within the limited purpose of the preliminary hearing and shall ensure that the scope of the hearing is limited to that purpose. When the preliminary hearing officer finds that evidence offered by either party is not within the scope of the hearing, he shall inform the parties and halt the presentation of that information.”

(2) Notice to and presence of the victim(s).

(A) The victim(s) of an offense under the UCMJ has the right to reasonable, accurate, and timely notice of a preliminary hearing relating to the alleged offense and the reasonable right to confer with counsel for the government. For the purposes of this rule, a “victim” is a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.

(B) A victim of an offense under consideration at the preliminary hearing is not required to testify at the preliminary hearing.

(C) A victim has the right not to be excluded from any portion of a preliminary hearing related to the alleged offense, unless the preliminary hearing officer, after receiving clear and convincing evidence, determines the testimony by the victim would be materially altered if the victim heard other testimony at the proceeding.

(D) A victim shall be excluded if a privilege set forth in Mil. R. Evid. 505 or 506 is invoked or if evidence is offered under Mil. R. Evid. 412, 513, or 514, for charges other than those in which the victim is named.

(3) Presentation of evidence.

(A) Testimony. Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. All testimony shall be taken under oath, except that the accused may make an unsworn statement. The preliminary hearing officer shall only consider testimony that is relevant to the limited scope and purpose of the preliminary hearing.

Discussion

“The following oath may be given to witnesses:

“Do you (swear) (affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth (so help you God)?”

The preliminary hearing officer is required to include in the report of the preliminary hearing, at a minimum, a summary of the substance of all testimony. See subsection (j)(2)(B) of this rule.

All preliminary hearing officer notes of testimony and recordings of testimony should be preserved until the end of trial.

If during the preliminary hearing any witness subject to the Code is suspected of an offense under the Code, the preliminary hearing officer should comply with the warning requirements of Mil. R. Evid. 305(c), (d), and, if necessary, (e).

Bearing in mind that counsel are responsible for preparing and presenting their cases, the preliminary hearing officer may ask a witness questions relevant to the limited scope and purpose of the hearing. When questioning a witness, the preliminary hearing officer may not depart from an impartial role and become an advocate for either side.”

(B) Other evidence. If relevant to the limited scope and purpose of the preliminary hearing, and not cumulative, a preliminary hearing officer may consider other evidence, in addition to or in lieu of witness testimony, including statements, tangible evidence, or reproductions thereof, offered by either side, that the preliminary hearing officer determines is reliable. This other evidence need not be sworn.

(4) Access by spectators. Preliminary hearings are public proceedings and should remain open to the public whenever possible. The convening authority who directed the preliminary hearing or the preliminary hearing officer may restrict or foreclose access by spectators to all or part of the proceedings if an overriding interest exists that outweighs the value of an open preliminary hearing. Examples of overriding interests may include: preventing psychological harm or trauma to a child witness or an alleged victim of a sexual crime, protecting the safety or privacy of a witness or alleged victim, protecting classified material, and receiving evidence where a witness is incapable of testifying in an open setting. Any closure must be narrowly tailored to achieve the overriding interest that justified the closure. Convening authorities or preliminary hearing officers must conclude that no lesser methods short of closing the preliminary hearing can be used to protect the overriding interest in the case. Convening authorities or preliminary hearing officers must conduct a case-by-case, witness-by-witness, circumstance-by-circumstance analysis of whether closure is necessary. If a convening authority or preliminary hearing officer believes closing the preliminary hearing is necessary, the convening authority or preliminary hearing officer must make specific findings of fact in writing that support the closure. The written findings of fact must be included in the report of preliminary hearing.

(5) Presence of accused. The further progress of the taking of evidence shall not be prevented and the accused shall be considered to have waived the right to be present whenever the accused:

(A) After being notified of the time and place of the proceeding is voluntarily absent; orStart Printed Page 39083

(B) After being warned by the preliminary hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct that is such as to justify exclusion from the proceeding.

(6) Recording of the preliminary hearing. Counsel for the government shall ensure that the preliminary hearing is recorded by a suitable recording device. A victim, as defined by subsection (i)(2)(A) of this rule, may request access to, or a copy of, the recording of the proceedings. Upon request, counsel for the government shall provide the requested access to, or a copy of, the recording to the victim not later than a reasonable time following dismissal of the charges, unless charges are dismissed for the purpose of re-referral, or court-martial adjournment. A victim is not entitled to classified information or access to or a copy of a recording of closed sessions that the victim did not have the right to attend under subsections (i)(2)(C) or (i)(2)(D) of this rule.

Discussion

“Counsel for the government shall provide victims with access to, or a copy of, the recording of the proceedings in accordance with such regulations as the Secretary concerned may prescribe.”

(7) Objections. Any objection alleging a failure to comply with this rule shall be made to the convening authority via the preliminary hearing officer.

(8) Sealed exhibits and proceedings. The preliminary hearing officer has the authority to order exhibits, proceedings, or other matters sealed as described in R.C.M. 1103A.

(j) Report of preliminary hearing.

(1) In general. The preliminary hearing officer shall make a timely written report of the preliminary hearing to the convening authority who directed the preliminary hearing.

Discussion

“If practicable, the charges and the report of preliminary hearing should be forwarded to the general court-martial convening authority within 8 days after an accused is ordered into arrest or confinement. See Article 33. “

(2) Contents. The report of preliminary hearing shall include:

(A) A statement of names and organizations or addresses of defense counsel and whether defense counsel was present throughout the taking of evidence, or, if not present, the reason why;

(B) The substance of the testimony taken on both sides;

(C) Any other statements, documents, or matters considered by the preliminary hearing officer, or recitals of the substance or nature of such evidence;

(D) A statement that an essential witness may not be available for trial;

(E) An explanation of any delays in the preliminary hearing;

(F) A notation if counsel for the government failed to issue a subpoena duces tecum that was directed by the preliminary hearing officer;

(G) The preliminary hearing officer's determination as to whether there is probable cause to believe the offense(s) listed on the charge sheet or otherwise considered at the preliminary hearing occurred;

(H) The preliminary hearing officer's determination as to whether there is probable cause to believe the accused committed the offense(s) listed on the charge sheet or otherwise considered at the preliminary hearing;

(I) The preliminary hearing officer's determination as to whether a court-martial has jurisdiction over the offense(s) and the accused;

(J) The preliminary hearing officer's determination as to whether the charge(s) and specification(s) are in proper form; and

(K) The preliminary hearing officer's recommendations regarding disposition of the charge(s).

Discussion

“The preliminary hearing officer may include any additional matters useful to the convening authority in determining disposition. The preliminary hearing officer may recommend that the charges and specifications be amended or that additional charges be preferred. See R.C.M. 306 and 401 concerning other possible dispositions.”

(3) Sealed exhibits and proceedings. If the report of preliminary hearing contains exhibits, proceedings, or other matters ordered sealed by the preliminary hearing officer in accordance with R.C.M. 1103A, counsel for the government shall cause such materials to be sealed so as to prevent unauthorized viewing or disclosure.

(4) Distribution of the report. The preliminary hearing officer shall cause the report to be delivered to the convening authority who directed the preliminary hearing. That convening authority shall promptly cause a copy of the report to be delivered to each accused.

(5) Objections. Any objection to the report shall be made to the convening authority who directed the preliminary hearing, via the preliminary hearing officer. Upon receipt of the report, the accused has 5 days to submit objections to the preliminary hearing officer. The preliminary hearing officer will forward the objections to the convening authority as soon as practicable. This subsection does not prohibit a convening authority from referring the charge(s) or taking other action within the 5-day period.

(k) Waiver. The accused may waive a preliminary hearing under this rule. However, the convening authority authorized to direct the preliminary hearing may direct that it be conducted notwithstanding the waiver. Failure to make a timely objection under this rule, including an objection to the report, shall constitute waiver of the objection. Relief from the waiver may be granted by the convening authority who directed the preliminary hearing, a superior convening authority, or the military judge, as appropriate, for good cause shown.

Discussion

See also R.C.M. 905(b)(1); 906(b)(3).

The convening authority who receives an objection may direct that the preliminary hearing be reopened or take other action, as appropriate.”

(i) A new Discussion section is added immediately after R.C.M. 601(g):

(g) Parallel convening authorities. If it is impracticable for the original convening authority to continue exercising authority over the charges, the convening authority may cause the charges, even if referred, to be transmitted to a parallel convening authority. This transmittal must be in writing and in accordance with such regulations as the Secretary concerned may prescribe. Subsequent actions taken by the parallel convening authority are within the sole discretion of that convening authority.”

Discussion

“Parallel convening authorities are those convening authorities that possess the same court-martial jurisdiction authority. Examples of permissible transmittal of charges under this rule include the transmittal from a general court-martial convening authority to another general court-martial convening authority, or from one special court-martial convening authority to another special court-martial convening authority. It would be impracticable for an original convening authority to continue exercising authority over the charges, for example, when a command is being decommissioned or inactivated, or when deploying or redeploying and the accused is remaining behind. If charges have been referred, there is no requirement that the charges be Start Printed Page 39084withdrawn or dismissed prior to transfer. See R.C.M. 604. In the event that the case has been referred, the receiving convening authority may adopt the original court-martial convening order, including the court-martial panel selected to hear the case as indicated in that convening order. When charges are transmitted under this rule, no recommendation as to disposition may be made.”

(j) The first sentence of the third paragraph of the Discussion section immediately after R.C.M. 702(a) is deleted.

(k) The Discussion section immediately following R.C.M. 702(c)(3)(A) is deleted.

(l) New Discussions sections are added throughout R.C.M. 801(a)(6) as follows:

(6) In the case of a victim of an offense under the UCMJ who is under 18 years of age and not a member of the armed forces, or who is incompetent, incapacitated, or deceased, designate in writing a family member, a representative of the estate of the victim, or another suitable individual to assume the victim's rights under the UCMJ.

(A) For the purposes of this rule, the individual is designated for the sole purpose of assuming the legal rights of the victim as they pertain to the victim's status as a victim of any offense(s) properly before the court.

Discussion

“The rights that a designee may exercise on behalf of a victim include the right to receive notice of public hearings in the case; the right to be reasonably heard at such hearings, if permitted by law; and the right to confer with counsel representing the government at such hearings. The designee may also be the custodial guardian of the child.

When determining whom to appoint under this rule, the military judge may consider the following: the age and maturity, relationship to the victim, and physical proximity of any proposed designee; the costs incurred in effecting the appointment; the willingness of the proposed designee to serve in such a role; the previous appointment of a guardian by another court of competent jurisdiction; the preference of the victim; any potential delay in any proceeding that may be caused by a specific appointment; and any other relevant information.”

(B) Procedure to determine appointment of designee.

(i) As soon as practicable, trial counsel shall notify the military judge, counsel for the accused, and the victim(s) of any offense(s) properly before the court when there is an apparent requirement to appoint a designee under this rule.

Discussion

“In the event a case involves multiple victims who are entitled to notice under this rule, each victim is only entitled to notice relating to his or her own designated representative.”

(ii) The military judge will determine if the appointment of a designee is required under this rule.

(iii) At the discretion of the military judge, victim(s), trial counsel, and the accused may be given the opportunity to recommend to the military judge individual(s) for appointment.

(iv) The military judge is not required to hold a hearing before determining whether a designation is required or making such an appointment under this rule.

(v) If the military judge determines a hearing pursuant to Article 39(a), UCMJ, is necessary, the following shall be notified of the hearing and afforded the right to be present at the hearing: trial counsel, accused, and the victim(s).

(vi) The individual designated shall not be the accused.

(C) At any time after appointment, a designee shall be excused upon request by the designee or a finding of good cause by the military judge.

(D) If the individual appointed to assume the victim's rights is excused, the military judge shall appoint a successor consistent with this rule.

Discussion

“The term “victim of an offense under the UCMJ” means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ. “Good Cause” means adequate or reasonable grounds to believe that the individual appointed to assume the victim's rights is not acting or does not intend to act in the best interest of the victim.”

(m) The Discussion section following R.C.M. 806(b)(1) is amended to read as follows:

(b) Control of spectators and closure.

(1) Control of spectators. In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, and exclude specific persons from the courtroom. When excluding specific persons, the military judge must make findings on the record establishing the reason for the exclusion, the basis for the military judge's belief that exclusion is necessary, and that the exclusion is as narrowly tailored as possible.

Discussion

“The military judge must ensure that the dignity and decorum of the proceedings are maintained and that the other rights and interests of the parties and society are protected. Public access to a session may be limited, specific persons may be excluded from the courtroom, and, under unusual circumstances, a session may be closed.

Exclusion of specific persons, if unreasonable under the circumstances, may violate the accused's right to a public trial, even though other spectators remain. Whenever specific persons or some members of the public are excluded, exclusion must be limited in time and scope to the minimum extent necessary to achieve the purpose for which it is ordered. Prevention of over-crowding or noise may justify limiting access to the courtroom. Disruptive or distracting appearance or conduct may justify excluding specific persons. Specific persons may be excluded when necessary to protect witnesses from harm or intimidation. Access may be reduced when no other means is available to relieve a witness' inability to testify due to embarrassment or extreme nervousness. Witnesses will ordinarily be excluded from the courtroom so that they cannot hear the testimony of other witnesses. See Mil. R. Evid. 615.

For purposes of this rule, the term “victim of an alleged offense” means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ.”

(n) The Discussion section following R.C.M. 807(b)(1)(B) is amended to read as follows:

(B) Witnesses. Each witness before a court-martial shall be examined on oath.

Discussion

See R.C.M. 307 concerning the requirement for an oath in preferral of charges. See R.C.M. 405 and 702 concerning the requirements for an oath in Article 32 preliminary hearings and depositions.

An accused making an unsworn statement is not a “witness.” See R.C.M. 1001(c)(2)(C).

A victim of an offense for which the accused has been found guilty is not a “witness” when making an unsworn statement during the presentencing phase of a court-martial. See R.C.M. 1001A.”

(o) The Discussion section following R.C.M. 906(b)(9) is amended to read as follows:Start Printed Page 39085

(9) Severance of multiple accused, if it appears that an accused or the Government is prejudiced by a joint or common trial. In a common trial, a severance shall be granted whenever any accused, other than the moving accused, faces charges unrelated to those charged against the moving accused.

Discussion

“A motion for severance is a request that one or more accused against whom charges have been referred to a joint or common trial be tried separately. Such a request should be granted if good cause is shown. For example, a severance may be appropriate when: the moving party wishes to use the testimony of one or more of the coaccused or the spouse of a coaccused; a defense of a coaccused is antagonistic to the moving party; or evidence as to any other accused will improperly prejudice the moving accused.

If a severance is granted by the military judge, the military judge will decide which accused will be tried first. See R.C.M. 801(a)(1). In the case of joint charges, the military judge will direct an appropriate amendment of the charges and specifications.

See also R.C.M. 307(c)(5); 601(e)(3); 604; 812.”

(p) A new Discussion section is added immediately after R.C.M. 1001(g):

(g) Argument. After introduction of matters relating to sentence under this rule, counsel for the prosecution and defense may argue for an appropriate sentence. Trial counsel may not in argument purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than that court-martial may adjudge. Trial counsel may, however, recommend a specific lawful sentence and may also refer to generally accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution. Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection.

Discussion

“A victim, victims' counsel, or designee has no right to present argument under this rule.”

(q) Discussions are inserted throughout R.C.M. 1001A(e)(1) as follows:

Rule 1001A. Crime victims and Presentencing

(a) In general. A crime victim of an offense of which the accused has been found guilty has the right to be reasonably heard at a sentencing hearing relating to that offense. A victim under this rule is not considered a witness for purposes of Article 42(b). Trial counsel shall ensure the victim is aware of the opportunity to exercise that right. If the victim exercises the right to be reasonably heard, the victim shall be called by the court-martial. This right is independent of whether the victim testified during findings or is called to testify under R.C.M. 1001.

(b) Definitions.

(1) Crime victim. For purposes of this rule, a “crime victim” is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty.

(2) Victim Impact. For the purposes of this rule, “victim impact” includes any financial, social, psychological, or medical impact on the victim directly relating to or arising from the offense of which the accused has been found guilty.

(3) Mitigation. For the purposes of this rule, “mitigation” includes a matter to lessen the punishment to be adjudged by the court-martial or to furnish grounds for a recommendation of clemency.

(4) Right to be reasonably heard.

(A) Capital cases. In capital cases, for purposes of this rule, the “right to be reasonably heard” means the right to make a sworn statement.

(B) Non-capital cases. In non-capital cases, for purposes of this rule, the “right to be reasonably heard” means the right to make a sworn or unsworn statement.

(c) Content of statement. The content of statements made under subsections (d) and (e) of this rule may include victim impact or matters in mitigation.

(d) Sworn statement. The victim may give a sworn statement under this rule and shall be subject to cross-examination concerning the statement by the trial counsel or defense counsel or examination on the statement by the court-martial, or all or any of the three. When a victim is under 18 years of age, incompetent, incapacitated, or deceased, the sworn statement may be made by the victim's designee appointed under R.C.M. 801(a)(6). Additionally, a victim under 18 years of age may elect to make a sworn statement.

(e) Unsworn statement. The victim may make an unsworn statement and may not be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial. The prosecution or defense may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both. When a victim is under 18 years of age, incompetent, incapacitated, or deceased, the unsworn statement may be made by the victim's designee appointed under R.C.M. 801(a)(6). Additionally, a victim under 18 years of age may elect to make an unsworn statement.

(1) Procedure for presenting unsworn statement. After the announcement of findings, a victim who would like to present an unsworn statement shall provide a copy to the trial counsel, defense counsel, and military judge. The military judge may waive this requirement for good cause shown.

Discussion

“When the military judge waives the notice requirement under this rule, the military judge may conduct a session under Article 39(a) to ascertain the content of the victim's anticipated unsworn statement.”

(2) Upon good cause shown, the military judge may permit the victim's counsel to deliver all or part of the victim's unsworn statement.

Discussion

“If there are numerous victims, the military judge may reasonably limit the form of the statements provided.

A victim's unsworn statement should not exceed what is permitted under R.C.M. 1001A(c) and may not include a recommendation of a specific sentence. Upon objection by either party or sua sponte, a military judge may stop or interrupt a victim's unsworn statement that includes matters outside the scope of R.C.M. 1001A(c). A victim, victim's counsel, or designee has no separate right to present argument under R.C.M. 1001(g).”

(r) A new Discussion section is added immediately after R.C.M. 1103A(b)(3):

(3) Authentication through action. After authentication and prior to disposition of the record of trial pursuant to Rule for Courts-Martial 1111, sealed materials may not be examined in the absence of an order from the military judge upon a showing of good cause at a post-trial Article 39a session directed by the Convening Authority.

Discussion

“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 Start Printed Page 39086the sealed materials when providing a written explanation of the reason for such action, as directed under R.C.M. 1107.”

(s) The Discussion section following R.C.M. 1106(d)(3) is amended to read as follows:

(3) Required contents. Except as provided in subsection (e), the staff judge advocate or legal advisor shall provide the convening authority with a copy of the report of results of the trial, setting forth the findings, sentence, and confinement credit to be applied; a copy or summary of the pretrial agreement, if any; a copy of any statement submitted by a crime victim pursuant to R.C.M. 1l05A; any recommendation for clemency by the sentencing authority made in conjunction with the announced sentence; and the staff judge advocate's concise recommendation.

Discussion

“The recommendation required by this rule need not include information regarding other recommendations for clemency. It may include a summary of clemency actions authorized under R.C.M. 1107. See R.C.M. 1105(b)(2)(D) (pertaining to clemency recommendations that may be submitted by the accused to the convening authority).”

(t) The Discussion section immediately following R.C.M. 1107(c) is deleted.

(u) The Discussion section immediately following R.C.M. 1107(d)(1) is deleted.

(v) Discussions are inserted throughout R.C.M. 1107(d)(1) as follows:

(1) In general.

(A) The convening authority may not disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence of confinement for more than six months.

(B) The convening authority may not disapprove, commute, or suspend that portion of an adjudged sentence that includes a dismissal, dishonorable discharge, or bad-conduct discharge.

(C) The convening authority may disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence when doing so is not explicitly prohibited by this Rule. Actions affecting reduction in pay grade, forfeitures of pay and allowances, fines, reprimands, restrictions, and hard labor without confinement are not explicitly prohibited by this Rule.

(D) The convening authority shall not disapprove, commute, or suspend any mandatory minimum sentence of dismissal or dishonorable discharge except in accordance with subsection (E) of this rule.

(E) Exceptions.

(i) Trial counsel recommendation. Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this section shall have the authority to disapprove, commute, or suspend the adjudged sentence, in whole or in part, even with respect to an offense for which a mandatory minimum sentence exists.

Discussion

“The phrase “investigation or prosecution of another person who has committed an offense” includes offenses under the UCMJ or other Federal, State, local, or foreign criminal statutes.”

(ii) Pretrial agreement. If a pretrial agreement has been entered into by the convening authority and the accused as authorized by R.C.M. 705, the convening authority shall have the authority to approve, disapprove, commute, or suspend a sentence, in whole or in part, pursuant to the terms of the pretrial agreement. The convening authority may commute a mandatory sentence of a dishonorable discharge to a bad-conduct discharge pursuant to the terms of the pretrial agreement.

(F) If the convening authority acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense, the convening authority shall provide, at the same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of trial and action thereon.”

Discussion

“A sentence adjudged by a court-martial may be approved if it was within the jurisdiction of the court-martial to adjudge (see R.C.M. 201(f)) and did not exceed the maximum limits prescribed in Part IV and Chapter X of this Part for the offense(s) of which the accused legally has been found guilty.

When mitigating forfeitures, the duration and amounts of forfeiture may be changed as long as the total amount forfeited is not increased and neither the amount nor duration of the forfeitures exceeds the jurisdiction of the court-martial. When mitigating confinement or hard labor without confinement, the convening authority should use the equivalencies at R.C.M. 1003(b)(5)-(6), as appropriate.

Unless prohibited by this rule, the convening authority may disapprove, mitigate, or change to a less severe punishment any individual component of a sentence. For example, if an accused is found guilty of assault consummated by a battery and sentenced to a bad-conduct discharge, three months of confinement, and reduction to E-1, without a pre-trial agreement and without being able to apply the substantial assistance exception, the convening authority may disapprove or reduce any part of the sentence except the bad-conduct discharge.”

(w) The Discussion section following R.C.M. 1107(d)(2) is amended to read as follows:

(2) Determining what sentence should be approved. The convening authority shall, subject to the limitations in subsection (d)(1) above, approve that sentence that is warranted by the circumstances of the offense and appropriate for the accused.”

Discussion

“In determining what sentence should be approved, the convening authority should consider all relevant and permissible factors including the possibility of rehabilitation, the deterrent effect of the sentence, and all matters relating to clemency, such as pretrial confinement. See also R.C.M. 1001-1004.

When an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay for any month as a result of one or more sentences by court-martial and other stoppages or involuntary deductions, unless requested by the accused. Since court-martial forfeitures constitute a loss of entitlement of the pay concerned, they take precedence over all debts.”

(x) The Discussion section immediately following R.C.M. 1107(e)(1)(C) is deleted.

(y) A new Discussion section is added immediately after R.C.M. 1301(c)(2):

(2) Notwithstanding subsection (c)(1) of this rule, summary courts-martial do not have jurisdiction over offenses under Articles 120(a), 120(b), 120b(a), 120b(b), forcible sodomy under Article 125, and attempts thereof under Article 80. Such offenses shall not be referred to a summary court-martial.

Discussion

“Pursuant to the National Defense Authorization Act for Fiscal Year 2014, only a general court-martial has jurisdiction to try penetrative sex offenses under subsections (a) and (b) of Article 120, subsections (a) and (b) of Article 120b, Article 125, and attempts to commit such penetrative sex offenses under Article 80.”

(z) The Discussion sections to R.C.M. 406(b)(4), R.C.M. 503(a)(1), and Start Printed Page 39087707(c)(1) are amended by changing “investigating officer” to “preliminary hearing officer” for preliminary hearings occurring on or after 26 December 2014.

(aa) The Discussion section to R.C.M. 701(a)(6)(c) is amended by changing “report of Article 32 investigation” to “report of Article 32 preliminary hearing” for preliminary hearings occurring on or after 26 December 2014.

(bb) The Discussion sections to R.C.M. 705(d)(2) and R.C.M. 919(b) are amended by changing “Article 32 investigation” to “Article 32 preliminary hearing” for preliminary hearings occurring on or after 26 December 2014.

Section 2. Part IV, Punitive Articles, is Amended as Follows:

A new Discussion section is added immediately after Paragraph 16, Article 92—Failure to obey order or regulation, subsection subparagraph e(3)(d):

[Note: In cases where the dereliction of duty resulted in death or grievous bodily harm, add the following as applicable]

(d) That such dereliction of duty resulted in death or grievous bodily harm to a person other than the accused.

Discussion

“If the dereliction of duty resulted in death, the accused may also be charged under Article 119 or Article 134 (negligent homicide), as applicable.”

Section 3. Appendix 21, Analysis of the Rules for Courts-Martial, is Amended as Follows:

(a) The Analysis for Rule 201 is amended by inserting the following at the end:

2015 Amendment: The discussion was amended in light of Solorio v. United States, 483 U.S. 435 (1987). Solorio overruled O'Callahan v. Parker, 395 U.S. 258 (1969), which had held that an offense under the Code could not be tried by court-martial unless the offense was “service connected.” Solorio overruled O'Callahan. The amendment strikes language that was inadvertently left in prior revisions of the Manual.”

(b) The Analysis for Rule 201(f) is amended by inserting the following at the end:

“(f) 2015 Amendment: R.C.M. 201(f)(2)(D) was created to implement Section 1705(c) of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014.”

(c) The Analysis for Rule 305 is amended by inserting the following at the end:

“(i) 2015 Amendment: R.C.M. 305(i)(2) was revised to implement Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

(d) The Analysis for Rule 305 is amended by inserting the following at the end:

“(n) 2015 Amendment: R.C.M. 305(n) was created to implement Article 6b(a)(2)(E), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

(e) A new Analysis section is inserted for Rule 404A and reads as follows:

2015 Amendment: This is a new rule created to implement Section 1702(a) of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to preliminary hearings occurring on or after 26 December 2014.

(f) The Analysis to Rule 405 is amended to read as follows:

2015 Amendment: This rule was created to implement Section 1702(a) of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013. This new rule took effect on 26 December 2014 pursuant to Section 531(g)(1) of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014, and applies to preliminary hearings occurring on or after 26 December 2014.”

(g) The Analysis to Rule 601 is amended in paragraph (f) by removing the word “new” before “provision.”

(h) The Analysis to Rule 601 is amended by inserting the following at the end:

2015 Amendment: (g) Parallel convening authorities. The intent of this new provision is to allow a successor convening authority to exercise full authority over charges, without having to effectuate re-referral or potentially a new trial. The subsection incorporates a recommendation of the May 2013 report of the Defense Legal Policy Board (DLPB), Report of the Subcommittee on Military Justice in Combat Zones. The DLPB is a Federal Advisory Committee established to provide independent advice to the Secretary of Defense. The DLPB found that an inhibition to retaining cases in an area of operations is the inability of a convening authority to transmit a case to another convening authority after referral of charges without having to withdraw the charges.”

(i) The Analysis to Rule 702 is amended by inserting the following at the end:

2015 Amendment: This rule was revised to implement Article 49, UCMJ, as amended by Section 532 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.”

(j) The Analysis to Rule 801(a) is amended by inserting the following at the end:

2015 Amendment: R.C.M. 801(a)(6) was created to implement Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

(k) The Analysis to Rule 806(b) is amended by inserting the following at the end:

2015 Amendment: R.C.M. 806(b)(2) was revised to implement Article 6b(a)(2), Article 6b(a)(3), and Article 6b(a)(5), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

(l) The Analysis to Rule 906(b) is amended by inserting the following at the end:

2015 Amendment: R.C.M. 906(b)(8) was revised to implement Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

(m) The Analysis to Rule 1001(a) is amended by inserting the following at the end:

2015 Amendment: R.C.M. 1001(a)(1) was revised to implement Article 6b(a)(4)(B), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

(n) A new Analysis section is inserted for Rule 1001A and reads as follows:

2015 Amendment: R.C.M. 1001A was added to implement Article 6b(a)(4)(B), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, concerning the right of a victim to be reasonably heard at a sentencing hearing relating to the offense. It is consistent with the principles of law and federal practice prescribed in 18 U.S.C. 3771(a)(4) and Federal Rule of Criminal Procedure 32(i)(4)(B), which requires the court to “address any victim of the crime who is present at sentencing” and “permit the victim to be reasonably heard.” See 10 U.S.C. 836(a). Additionally, the June 2014 report of the Response Systems to Adult Sexual Assault Crimes Panel (RSP) recommended that the President prescribe appropriate regulations to provide victims the right to make an unsworn victim impact statement, not subject to cross examination, during the Start Printed Page 39088presentencing proceeding. 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.”

(o) The Analysis to Rule 1103A is amended by inserting the following at the end:

2015 Amendment: This rule shall be implemented in a manner consistent with Executive Order 13526, as amended, concerning classified national security information.”

(p) The Analysis to Rule 1105(b) is amended by inserting the following at the end:

2015 Amendment: R.C.M. 1105(b) was revised to implement Section 1706 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014.”

(q) The Analysis to Rule 1107(b) is amended by inserting the following at the end:

“2015 Amendment: This subsection was revised to implement Article 60(c), UCMJ, as amended by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, as well as Section 1706 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. For offenses occurring prior to 24 June 2014, refer to prior versions of R.C.M. 1107(b).”

(r) The Analysis to Rule 1107(c) is amended to read as follows:

2015 Amendment: This subsection was substantially revised to implement Article 60(c), UCMJ, as amended by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. For offenses occurring prior to 24 June 2014, refer to prior versions of R.C.M. 1107(c).”

(s) The Analysis to Rule 1107(d) is removed and new analysis is amended to read as follows:

2015 Amendment: This subsection was substantially revised to implement Article 60(c), UCMJ, as amended by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. For offenses occurring prior to 24 June 2014, refer to prior versions of R.C.M. 1107(d).”

(t) The Analysis to Rule 1107(f) is amended by inserting the following at the end:

2015 Amendment: This subsection was revised to implement Article 60(c), UCMJ, as amended by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. For offenses occurring prior to 24 June 2014, refer to prior versions of R.C.M. 1107(f).”

(u) The Analysis to Rule 1108(b) is amended by inserting the following at the end:

2015 Amendment: This subsection was revised to implement Article 60(c), UCMJ, as amended by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. For offenses occurring prior to 24 June 2014, refer to prior versions of R.C.M. 1108(b).”

(v) The Analysis to Rule 1301(c) is amended by inserting the following at the end:

2015 Amendment: This subsection was revised to implement Section 1705 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014.”

Section 4. Appendix 22, Analysis of the Military Rules of Evidence, is Amended as Follows:

(a) The Analysis to Rule 404 is amended by inserting the following at the end:

2015 Amendment: This rule was revised to implement Section 536 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.”

(b) The Analysis to Rule 412 is amended by inserting the following at the end:

2015 Amendment: Rule 412(c)(2) was revised in accordance with LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.”

(c) The Analysis to Rule 513 is amended by inserting the following at the end:

2015 Amendment: Rule 513(e)(2) was revised in accordance with LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Sections 534(c) and 537 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.”

(d) The Analysis to Rule 514 is amended by inserting the following at the end:

2015 Amendment: Rule 514(e)(2) was revised in accordance with LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 514 was also revised to protect communications made to the Department of Defense Safe Helpline, which is a crisis support service for victims of sexual assault in the Department of Defense. The Department of Defense Safe Helpline was established in 2011 under a contract with the Rape, Abuse & Incest National Network. Rule 514(e) was amended to adopt a legal threshold that must be satisfied before a military judge may order an in camera review of records or communications falling within the privilege. While not required by Section 537 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, the Rule 514 threshold was modeled after the Rule 513 threshold required by that Section.”

(e) The Analysis to Rule 615 is amended by inserting the following at the end:

2015 Amendment: Rule 615(e) was revised to implement Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.”

Section 5. Appendix 23, Analysis of Punitive Articles, is Amended as Follows:

Paragraph 16, Article 92—Failure to obey order or regulation, is amended by inserting the following at the end:

2015 Amendment: Subparagraph b(3) was amended to increase the punishment for dereliction of duty when such dereliction results in grievous bodily harm or death. Subsection b(3)(d) incorporates a recommendation of the May 2013 report of the Defense Legal Policy Board (DLPB), Report of the Subcommittee on Military Justice in Combat Zones. The DLPB is a Federal Advisory Committee established to provide independent advice to the Secretary of Defense. The DLPB subcommittee primarily focused on civilian casualties in a deployed environment, and the DLPB found that the maximum punishment for dereliction of duty was not commensurate with the potential consequences of dereliction resulting in civilian casualties. The DLPB also found that the available punishment did not make alternative dispositions to court-martial a practical option because there was little incentive for an accused to accept these alternatives. This rule expands on the recommendation of the Start Printed Page 39089DLPB and includes elevated maximum punishment for dereliction of duty that results in death or grievous bodily harm suffered by any person.”

Start Signature

Dated: July 2, 2015.

Aaron Siegel,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

End Signature End Supplemental Information

[FR Doc. 2015-16696 Filed 7-7-15; 8:45 am]

BILLING CODE 5001-06-P