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 and the punitive articles 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. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, and the Punitive Articles), an Analysis, 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.

The proposed amendments would change military justice practice by implementing recommendations made by the Response Systems to Adult Sexual Assault Crimes Panel, incorporating recent amendments to the Federal Rules of Evidence into the Military Rules of Evidence, and modifying the Rules for Courts-Martial, Military Rules of Evidence, and Punitive Articles explanation to reflect recent statutory amendments and developments in case law.

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.

DATES:

Comments on the proposed changes must be received no later than December 18, 2015. A public meeting for comments will be held on November 5, 2015, 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 of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

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:

Captain Harlye S. Carlton, USMC, Executive Secretary, JSC, (703) 693-9299, harlye.carlton@usmc.mil. The JSC Web site is located at http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION:

The proposed amendments to the MCM are as follows:

Annex

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

(a) A new R.C.M. 103(22) is inserted and reads as follows:

“(22) The definition of “signature” below includes a digital or electronic signature.”

(b) The title of R.C.M. 104(b)(1) is amended to read as follows:

“(1) Evaluation of member, defense counsel, or special victims' counsel.”

(c) R.C.M. 104(b)(1)(B) is amended to read as follows:

“(B) Give a less favorable rating or evaluation of any defense counsel or special victims' counsel because of the zeal with which such counsel represented any client. As used in this rule, “special victims' counsel” are judge advocates who, in accordance with 10 U.S.C. 1044e, are designated as Special Victims' Counsel by the Judge Advocate General of the armed force in which the judge advocates are members, and within the Marine Corps, by the Staff Judge Advocate to the Commandant of the Marine Corps.”

(d) A new R.C.M. 305(i)(2)(A)(v) is inserted and reads as follows:

“(v) Victim's right to be reasonably protected from the prisoner. A victim of an alleged offense committed by the prisoner has the right to be reasonably protected from the prisoner.”

(e) R.C.M. 306(b) is amended to read as follows:

“(b) Policy.

(1) Generally. Allegations of offenses should be disposed of in a timely manner at the lowest appropriate level of disposition listed in subsection (c) of this rule.”

(f) A new R.C.M. 306(b)(2) is inserted and reads as follows:

“(2) Victims of a sex-related offense.

(A) For purposes of this subsection, a “sex-related offense” means any allegation of a violation of Article 120, 120a, 120b, 120c, or 125 or any attempt thereof under Article 80, UCMJ.

(B) Under such regulations as the Secretary concerned may prescribe, for alleged sex-related offenses committed in the United States, the victim of the sex-related offense shall be provided an opportunity to express views as to whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense. The commander shall consider such views as to the victim's preference for jurisdiction, if available, prior to making an initial disposition decision. For purposes of this rule, “victim” is defined as an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an alleged sex-related offense as defined in subsection (A).

(C) Under such regulations as the Secretary concerned may prescribe, if the victim of an alleged sex-related offense expresses a preference for prosecution of the offense in a civilian court, the convening authority shall ensure that the civilian authority with jurisdiction over the offense is notified of the victim's preference for civilian prosecution. If the convening authority learns of any decision by the civilian authority to prosecute or not prosecute the offense in civilian court, the convening authority shall ensure the victim is notified.”

(g) R.C.M. 405(i)(2)(A) is amended to read as follows:

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

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

(h) R.C.M. 705(c)(2)(A) is amended to read as follows:

“(A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered;”

(i) A new R.C.M. 705(d)(3) is inserted and reads as follows:

“(3) Victim consultation. Whenever practicable, prior to the convening authority accepting a pretrial agreement the victim shall be provided an opportunity to express views concerning the pretrial agreement terms and conditions in accordance with regulations prescribed by the Secretary concerned. The convening authority shall consider any such views provided prior to accepting a pretrial agreement. For purposes of this rule, a “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”

(j) R.C.M. 705(d)(3) is renumbered as R.C.M. 705(d)(4).

(k) R.C.M. 705(d)(4) is renumbered as R.C.M. 705(d)(5).

(l) A new R.C.M. 806(b)(2) is inserted and reads as follows:

“(2) Right of victim to notice. A victim of an alleged offense committed by the accused has the right to reasonable, accurate, and timely notice of court-martial proceedings relating to the offense.”

(m) R.C.M. 806(b)(2) is renumbered as R.C.M. 806(b)(3).

(n) R.C.M. 806(b)(3) is renumbered as R.C.M. 806(b)(4).

(o) R.C.M. 806(b)(4) is renumbered as R.C.M. 806(b)(5).

(p) A new R.C.M. 806(b)(6) is inserted and reads as follows:

“(b)(6) Right of victim to be reasonably protected from the accused. A victim of an alleged offense committed by the accused has the right to be reasonably protected from the accused.”

(q) R.C.M. 907(b)(1) is amended to read as follows:

“(1) Nonwaivable grounds. A charge or specification shall be dismissed at any stage of the proceedings if the court-martial lacks jurisdiction to try the accused for the offense.”

(r) R.C.M. 907(b)(1)(A)-(B) is deleted.

(s) R.C.M. 907(b)(3) is amended to read as follows:

“(3) Permissible grounds. A specification may be dismissed upon timely motion by the accused if:

(A) The specification is so defective that it substantially misled the accused, and the military judge finds that, in the interest of justice, trial should proceed on remaining charges and specifications without undue delay;

(B) The specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice; or

(C) The specification fails to state an offense.”

(t) R.C.M. 910(f)(4) is amended to read as follows:

“(4) Inquiry. The military judge shall inquire to ensure:

(A) That the accused understands the agreement;

(B) That the parties agree to the terms of the agreement; and

(C) That the victim was provided an opportunity to express views as to the terms and conditions of the agreement as provided in R.C.M. 705.”

(u) R.C.M. 1002 is amended to read as follows:

“(a) Generally. Subject to limitations in this Manual, the sentence to be adjudged is a matter within the discretion of the court-martial; except when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual, including the maximum punishment or any lesser punishment, or may adjudge a sentence of no punishment.

(b) Unitary Sentencing. Sentencing by a court-martial is unitary. The court will adjudge a single sentence for all the offenses of which the accused was found guilty. A court-martial may not impose separate sentences for each finding of guilty, but may impose only a single, unitary sentence covering all of the guilty findings in their entirety.”

(v) R.C.M. 1103(b)(2)(B)(i) is amended to read as follows:

“(i) Any part of the sentence adjudged exceeds twelve months confinement, forfeiture of pay greater than two-thirds pay per month, or any forfeiture of pay for more than twelve months or other punishments that may be adjudged by a special court-martial; or”

(w) The Note currently located immediately following the title of R.C.M. 1107 and prior to R.C.M. 1107(a) is amended to read as follows:

“[Note: R.C.M. 1107(b)-(f) apply to offenses committed on or after 24 June 2014; however, if at least one offense resulting in a finding of guilty in a case occurred prior to 24 June 2014, then the prior version of R.C.M. 1107 applies to all offenses in the case, except that mandatory minimum sentences under Article 56(b) and applicable rules under R.C.M. 1107(d)(1)(D)-(E) still apply.]”

(x) R.C.M. 1107(b)(5) is amended to remove the last sentence starting with “Nothing” and ending with “sentence.”

(y) R.C.M. 1107(c) is amended to read as follows:

“(c) Action on findings. Action on the findings is not required. However, the convening authority may take action subject to the following limitations:

(1) Where a court-martial includes a finding of guilty for an offense listed in (c)(1)(A), the convening authority may not take the actions listed in subsection (c)(1)(B):

(A) Offenses

(i) Article 120(a) or (b), Article 120b, or Article 125;

(ii) Offenses for which the maximum sentence of confinement that may be adjudged exceeds two years without regard to the jurisdictional limits of the court; or

(iii) Offenses where the adjudged sentence for the case includes dismissal, dishonorable discharge, bad-conduct discharge, or confinement for more than six months.

(B) Prohibited actions

(i) Dismiss a charge or specification by setting aside a finding of guilty thereto; or

(ii) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

(2) The convening authority may direct a rehearing in accordance with subsection (e) of this rule.

(3) For offenses other than those listed in subsection (c)(1)(A):

(A) The convening authority may change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification; or

(B) Set aside any finding of guilty and:

(i) Dismiss the specification and, if appropriate, the charge; or

(ii) Direct a rehearing in accordance with subsection (e) of this rule.

(4) If the convening authority acts to dismiss or change any charge or specification for an offense, the convening authority shall provide, at the same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of trial and action thereon.”

(z) R.C.M. 1107(d) is amended to read as follows:

“(d) Action on the sentence.

(1) The convening authority shall take action on the sentence subject to the following :

(A) The convening authority may disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence not explicitly prohibited by this rule, to include reduction in pay grade, forfeitures of pay and allowances, fines, reprimands, restrictions, and hard labor without confinement.

(B) Except as provided in subsection (d)(1)(C), the convening authority may not disapprove, commute, or suspend, in whole or in part, that portion of an adjudged sentence that includes:

(i) confinement for more than six months; or

(ii) dismissal, dishonorable discharge, or bad-conduct discharge.

(C) Exceptions

(i) Trial counsel recommendation. Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this 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.

(ii) Pretrial agreement. If a pretrial agreement has been entered into by the convening authority and the accused, as authorized by R.C.M. 705, the convening authority or another person authorized to act under this section shall have the authority to approve, disapprove, commute, or suspend a sentence, in whole or in part, pursuant to the terms of the pretrial agreement. However, if a mandatory minimum sentence of a dishonorable discharge applies to an offense for which an accused has been convicted, the convening authority or another person authorized to act under this section may commute the dishonorable discharge to a bad-conduct discharge pursuant to the terms of the pretrial agreement.

(D) If the convening authority acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense listed in subsection (c)(1)(A), 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.”

(aa) R.C.M. 1107(e) is amended to read as follows:

“(e) Ordering rehearing or other trial.

(1) Rehearings not permitted. A rehearing may not be ordered by the convening authority where the adjudged sentence for the case includes a sentence of dismissal, dishonorable discharge, or bad-conduct discharge or confinement for more than six months.

(2) Rehearings permitted.

(A) In general. Subject to subsection (e)(1) and subsections (e)(2)(B) through (e)(2)(E) of this rule, the convening authority may in the convening authority's discretion order a rehearing. A rehearing may be ordered as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only.

(B) When the convening authority may order a rehearing. The convening authority may order a rehearing:

(i) When taking action on the court-martial under this rule. Prior to ordering a rehearing on a finding, the convening authority must disapprove the applicable finding and the sentence and state the reasons for disapproval of said finding. Prior to ordering a rehearing on the sentence, the convening authority must disapprove the sentence.

(ii) When authorized to do so by superior competent authority. If the convening authority finds a rehearing as to any offenses impracticable, the convening authority may dismiss those specifications and, when appropriate, charges.

(iii) Sentence reassessment. If a superior competent authority has approved some of the findings of guilty and has authorized a rehearing as to other offenses and the sentence, the convening authority may, unless otherwise directed, reassess the sentence based on the approved findings of guilty and dismiss the remaining charges. Reassessment is appropriate only where the convening authority determines that the accused's sentence would have been at least of a certain magnitude had the prejudicial error not been committed and the reassessed sentence is appropriate in relation to the affirmed findings of guilty.”

(C) Limitations.

(i) Sentence approved. A rehearing shall not be ordered if, in the same action, a sentence is approved.

(ii) Lack of sufficient evidence. A rehearing may not be ordered as to findings of guilty when there is a lack of sufficient evidence in the record to support the findings of guilty of the offense charged or of any lesser included offense. A rehearing may be ordered, however, if the proof of guilt consisted of inadmissible evidence for which there is available an admissible substitute. A rehearing may be ordered as to any lesser offense included in an offense of which the accused was found guilty, provided there is sufficient evidence in the record to support the lesser included offense.

(iii) Rehearing on sentence only. A rehearing on sentence only shall not be referred to a different kind of court-martial from that which made the original findings. If the convening authority determines a rehearing on sentence is impracticable, the convening authority may approve a sentence of no punishment without conducting a rehearing.

(D) Additional charges. Additional charges may be referred for trial together with charges as to which a rehearing has been directed.

(E) Lesser included offenses. If at a previous trial the accused was convicted of a lesser included offense, a rehearing may be ordered only as to that included offense or as to an offense included in that found. If, however, a rehearing is ordered improperly on the original offense charged and the accused is convicted of that offense at the rehearing, the finding as to the lesser included offense of which the accused was convicted at the original trial may nevertheless be approved.

(3) “Other” trial. The convening or higher authority may order an “other” trial if the original proceedings were invalid because of lack of jurisdiction or failure of a specification to state an offense. The authority ordering an “other” trial shall state in the action the basis for declaring the proceedings invalid.”

(bb) The Note currently located immediately following the title of R.C.M. 1108(b) and prior to the first line, “The convening authority may. . .” is amended to read as follows:

“[Note: R.C.M. 1108(b) applies to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of R.C.M. 1108(b) applies to all offenses in the case.]”

(cc) R.C.M. 1109(a) is amended to read as follows:

_“(a) In general. Suspension of execution of the sentence of a court-martial may be vacated for violation of any condition of the suspension as provided in this rule.”

(dd) R.C.M. 1109(c)(4)(A) is amended to read as follows:

“(A) Rights of probationer. Before the preliminary hearing, the probationer shall be notified in writing of:”

(ee) R.C.M. 1109(c)(4)(C) is amended to read as follows:

“(C) Decision. The hearing officer shall determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension. If the hearing officer determines that probable cause is lacking, the hearing officer shall issue a written order directing that the probationer be released from confinement. If the hearing officer determines that there is probable cause to believe that the probationer violated a condition of suspension, the hearing officer shall set forth this determination in a written memorandum that details therein the evidence relied upon and reasons for making the decision. The hearing officer shall forward the original memorandum or release order to the probationer's commander and forward a copy to the probationer and the officer in charge of the confinement facility.”

(ff) A new sentence is added to the end of R.C.M. 1109(d)(1)(A) and reads as follows:

“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated a condition of the probationer's suspension.”

(gg) R.C.M. 1109(d)(1)(C) is amended to read as follows:

“(C) Hearing. The procedure for the vacation hearing shall follow that prescribed in subsection (h) of this rule.”

(hh) A new sentence is added to the end of R.C.M. 1109(d)(1)(D) and reads as follows:

“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”

(ii) R.C.M. 1109(d)(2)(A) is amended to read as follows:

“(A) In general. The officer exercising general court-martial jurisdiction over the probationer shall review the record produced by and the recommendation of the officer exercising special court-martial jurisdiction over the probationer, decide whether there is probable cause to believe that the probationer violated a condition of the probationer's suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising general court-martial jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence.”

(jj) A new sentence is added to the end of R.C.M. 1109(e)(1) and reads as follows:

“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension.”

(kk) R.C.M. 1109(e)(3) is amended to read as follows:

“(3) Hearing. The procedure for the vacation hearing shall follow that prescribed in subsection (h) of this rule.”

(ll) A new sentence is added to the end of R.C.M. 1109(e)(5) and reads as follows:

“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”

(mm) R.C.M. 1109(e)(6) is amended to read as follows:

“(6) Decision. The special court-martial convening authority shall review the record produced by and the recommendation of the person who conducted the vacation proceeding, decide whether there is probable cause to believe that the probationer violated a condition of the probationer's suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence.”

(nn) A new sentence is added to the end of R.C.M. 1109(g)(1) and reads as follows:

“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension.”

(oo) R.C.M. 1109(g)(3) is amended to read as follows:

“(3) Hearing. The procedure for the vacation hearing shall follow that prescribed in subsection (h) of this rule.”

(pp) A new sentence is added to the end of R.C.M. 1109(g)(5) and reads as follows:

“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”

(qq) R.C.M. 1109(g)(6) is amended to read as follows:

“(6) Decision. A commander with authority to vacate the suspension shall review the record produced by and the recommendation of the person who conducted the vacation proceeding, decide whether there is probable cause to believe that the probationer violated a condition of the probationer's suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence.”

(rr) A new R.C.M. 1109(h) is inserted and reads as follows:

“(h) Hearing procedure

(1) Generally. The hearing shall begin with the hearing officer informing the probationer of the probationer's rights. The government will then present evidence. Upon the conclusion of the government's presentation of evidence, the probationer may present evidence. The probationer shall have full opportunity to present any matters in defense, extenuation, or mitigation. Both the government and probationer shall be afforded an opportunity to cross-examine adverse witnesses. The hearing officer may also question witnesses called by the parties.

(2) Rules of evidence. The Military Rules of Evidence—other than Mil. R. Evid. 301, 302, 303, 305, 412, and Section V—shall not apply. Nor shall Mil. R. Evid. 412(b)(1)(C) apply. In applying these rules to a vacation hearing, the term “military judge,” as used in these rules, shall mean the hearing officer, who shall assume the military judge's authority to exclude evidence from the hearing, and who shall, in discharging this duty, follow the procedures set forth in these rules. However, the hearing officer is not authorized to order production of communications covered by Mil. R. Evid. 513 or 514.

(3) Production of witnesses and other evidence. The procedure for the production of witnesses and other evidence shall follow that prescribed in R.C.M. 405(g), except that R.C.M. 405(g)(3)(B) shall not apply. The hearing officer shall only consider testimony and other evidence that is relevant to the limited purpose of the hearing.

(4) Presentation of testimony. Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. All testimony shall be taken under oath, except that the probationer may make an unsworn statement.

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

(6) Presence of probationer. The taking of evidence shall not be prevented and the probationer shall be considered to have waived the right to be present whenever the probationer:

(i) After being notified of the time and place of the proceeding is voluntarily absent; or

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

(7) Objections. Any objection alleging failure to comply with these rules shall be made to the convening authority via the hearing officer. The hearing officer shall include a record of all objections in the written recommendations to the convening authority.

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

(9) Victim's rights. Any victim of the underlying offense for which the probationer received the suspended sentence, or any victim of the alleged offense that is the subject of the vacation hearing, has the right to reasonable, accurate, and timely notice of the vacation hearing. For purposes of this rule, the term “victim” is defined as an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense.”

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

(a) Mil. R. Evid. 304(c) is amended to read as follows:

“(c) Corroboration of a Confession or Admission.

(1) An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.

(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of the admission or confession, then it may be considered as evidence against the accused. Not every element or fact contained in the confession or admission must be independently proven for the confession or admission to be admitted into evidence in its entirety.

(3) Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.

(4) Quantum of Evidence Needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the admission or confession. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.

(5) Procedure. The military judge alone is to determine when adequate evidence of corroboration has been received. Corroborating evidence must be introduced before the admission or confession is introduced unless the military judge allows submission of such evidence subject to later corroboration.”

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

“(a) General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(1) The accused makes a timely motion to suppress or an objection to the evidence under this rule;

(2) the accused had a reasonable expectation of privacy in the person, place or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and

(3) exclusion of the evidence results in appreciable deterrence for future Fourth Amendment violations and the benefits of such deterrence outweigh the costs to the justice system.”

(c) A new Mil. R. Evid. 311(c)(4) is inserted and reads as follows:

“(4) Reliance on Statute. Evidence that was obtained as a result of an unlawful search or seizure may be used when the official seeking the evidence acts in objectively reasonable reliance on a statute later held violative of the Fourth Amendment.”

(d) Mil. R. Evid. 414(d)(2)(A) is amended to read as follows:

“(A) any conduct prohibited by Article 120 and committed with a child, or prohibited by Article 120b.”

(e) Mil. R. Evid. 504 is amended to read as follows:

“Rule 504. Marital privilege

(a) Spousal Incapacity. A person has a privilege to refuse to testify against his or her spouse. There is no privilege under subdivision (a) when, at the time of the testimony, the parties are divorced, or the marriage has been annulled.

(b) Confidential Communication Made During the Marriage.

(1) General Rule. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were married and not separated as provided by law.

(2) Who May Claim the Privilege. The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.

(c) Exceptions.

(1) To Confidential Communications Only. Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b) and are not entitled to protection under the privilege in subdivision (b).

(2) To Spousal Incapacity and Confidential Communications. There is no privilege under subdivisions (a) or (b):

(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;

(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or

(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 8 U.S.C. 1328; with transporting the other spouse in interstate commerce for prostitution, immoral purposes, or another offense in violation of 18 U.S.C. 2421-2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.

(d) Definitions. As used in this rule:

(1) “A child of either” means a biological child, adopted child, or ward of one of the spouses and includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is:

(A) an individual under the age of 18; or

(B) an individual with a mental handicap who functions under the age of 18.

(2) “Temporary physical custody” means a parent has entrusted his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody, nor is a written agreement required. Rather, the focus is on the parent's agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of his or her child for recurring care or during absences due to temporary duty or deployments.

(3) As used in this rule, a communication is “confidential” if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.”

(f) Mil. R. Evid. 801(d)(1)(B) is amended to read as follows:

“(B) is consistent with the declarant's testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or”

(g) The first sentence of Mil. R. Evid. 803(6)(E) is amended to read as follows:

“(E) the opponent does not show that the source of information or the method or circumstance of preparation indicate a lack of trustworthiness.”

(h) Mil. R. Evid. 803(7)(C) is amended to read as follows

“(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.”

(i) The first sentence of Mil. R. Evid. 803(8)(B) is amended to read as follows:

“(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”

(j) Mil. R. Evid. 803(10)(B) is amended to read as follows:

“(B) a counsel for the government who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the accused does not object in writing within 7 days of receiving the notice—unless the military judge sets a different time for the notice or the objection.”

Section 3. Part IV of the Manual for Courts-Martial, United States, is amended as follows: Paragraph 110, Article 134—Threat, communicating, subparagraph c. is amended to read as follows:

“c. Explanation. For purposes of this paragraph, to establish that the communication was wrongful it is necessary that the accused transmitted the communication for the purpose of issuing a threat, with the knowledge that the communication would be viewed as a threat, or acted recklessly with regard to whether the communication would be viewed as a threat. However, it is not necessary to establish that the accused actually intended to do the injury threatened. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving injury to another. See also paragraph 109, Threat or hoax designed or intended to cause panic or public fear.”

Section 4. Appendix 21, Analysis of Rules for Courts-Martial is amended as follows:

(a) Rule 306 is amended by inserting the following at the end:

“2016 Amendment: R.C.M. 306(b)(2) was added to implement Section 534(b) of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.”

(b) Rule 401 is amended by inserting the following at the end:

“2016 Amendment: The first paragraph of the R.C.M. 401(c) Discussion was added in light of the recommendation in the Response Systems to Adult Sexual Assault Crimes Panel's (RSP) June 2014 report for trial counsel to convey victims' preferences as to disposition to the convening authority. This discussion implements this recommendation by allowing Service regulations to determine the appropriate authority responsible for communicating the victims' views to the convening authority. 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) Rule 604 is amended by inserting the following at the end:

“2016 Amendment: The fourth paragraph of the R.C.M. 604(a) Discussion was added to align the Discussion with R.C.M. 705(d)(3).”

(d) Rule 907 is amended inserting the following at the end:

“2016 Amendment: R.C.M. 907(b) was amended in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), where the court held that a defective specification does not constitute structural error or warrant automatic dismissal.”

(e) Rule 910 is amended by inserting the following at the end:

“2016 Amendment: R.C.M. 910(f)(4)(C) was added in light of the recommendation in the Response Systems to Adult Sexual Assault Crimes Panel's (RSP) June 2014 report for victims to be consulted regarding a pretrial agreement. 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.”

(f) Rule 1002 is amended by inserting the following at the end:

“2016 Amendment: R.C.M. 1002(b) was added to clarify the military's unitary sentencing concept. See United States v. Gutierrez, 11 M.J. 122, 123 (C.M.A. 1981). See generally Jackson v. Taylor, 353 U.S. 569 (1957).”

(g) Rule 1103(b) is amended by inserting the following immediately before the paragraph beginning with “Subsection 2(C)”:

“2016 Amendment: R.C.M. 1103(b)(2)(B)(i) was amended to align the requirement for a verbatim transcript with special courts-martial jurisdictional maximum punishments.”

(h) Rule 1108 is amended by inserting the following at the end:

“2016 Amendment: The R.C.M. 1107(b) Discussion was amended to clarify that the limitations contained in Article 60 apply to the convening authority or other commander acting under Article 60.”

(i) Rule 1109 is amended by inserting the following at the end:

“2016 Amendment: R.C.M. 1109 was revised in light of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, amendments to Article 32 and the resulting changes to R.C.M. 405 as promulgated by Executive Order 13696. It was further revised to clarify throughout the rule that the purpose of vacation hearings is to determine whether there is probable cause that the probationer violated any condition of the probationer's suspension.”

Section 5. Appendix 22, Analysis of the Military Rules of Evidence is amended as follows:

(a) Rule 304(c) is amended by inserting the following at the end:

“2016 Amendment: This change was adopted to bring military practice in line with federal practice. See Opper v. United States, 348 U.S. 84 (1954), and Smith v. United States, 348 U.S. 147 (1954).”

(b) Rule 311 is amended by inserting the following at the end:

“2016 Amendment: Rule 311(a)(3) was added to incorporate the balancing test limiting the application of the exclusionary rule set forth in Herring v. United States, 555 U.S. 135 (2009), where the Supreme Court held that to trigger the exclusionary rule, “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” Id. at 147; see also United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (“The exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs” (internal quotation marks omitted)).

Rule 311(c)(4) was added to adopt the expansion of the “good faith” exception to the exclusionary rule set forth in Illinois v. Krull, 480 U.S. 340 (1987), where the Supreme Court held that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the Fourth Amendment.”

(c) Rule 504 is amended by inserting the following at the end:

“2016 Amendment: References to gender were removed throughout the Rule. Rule 504(c)(1) was amended to make clear that the exception only applies to confidential communications. The definition of “confidential communications” was moved to Rule 504(d).”

(d) Rule 801 is amended by inserting the following at the end:

“2016 Amendment. Rule 801(d)(1)(B)(ii) was added in accordance with an identical change to Federal Rule of Evidence 801(d)(1)(B). The amendment retains the requirement set forth in Tome v. United States, 513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication of improper influence or motive must have been made before the alleged fabrication or improper inference or motive arose. The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness—such as the charges of inconsistency or faulty memory. The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.”

(e) The fourth paragraph of Rule 803(6), beginning with, “Paragraph 144 d” is amended to read as follows:

“Paragraph 144 d prevented a record “made principally with a view to prosecution, or other disciplinary or legal action;” from being admitted as a business record.”

(f) Rule 803(6) is amended by inserting the following at the end:

“2016 Amendment: Rule 803(6)(E) was modified based on the amendment to Fed. R. Evid. 803(6), effective 1 December 2014. It clarifies that if the proponent of a record has established the requirements of the exception, then the burden is on the opponent to show a lack of trustworthiness. In meeting its burden, the opponent is not necessarily required to introduce affirmative evidence of untrustworthiness. It is appropriate to impose the burden of proving untrustworthiness on the opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.”

(g) Rule 803(7) is amended by inserting the following at the end:

“2016 Amendment: Rule 803(7)(C) was modified based on the amendment to Fed. R. Evid. 803(7), effective 1 December 2014. It clarifies that if the proponent has established the stated requirements of the exception then the burden is on the opponent to show a lack of trustworthiness.”

(h) Rule 803(8) is amended by inserting the following at the end:

“2016 Amendment: Rule 803(8)(B) was modified based on the amendment to Fed. R. Evid. 803(8)(B), effective 1 December 2014. The amendment clarifies that if the proponent has established that the record meets the stated requirements of the exception then the burden is on the opponent to show a lack of trustworthiness as public records have justifiably carried a presumption of reliability. The opponent, in meeting its burden is not necessarily required to introduce affirmative evidence of untrustworthiness. A determination of untrustworthiness necessarily depends on the circumstances.”

(i) Rule 803(8) is amended by deleting the following:

“Rule 803(8)(C) makes admissible, but only against the Government, “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” This provision will make factual findings made, for example, by an Article 32 Investigating Officer or by a Court of Inquiry admissible on behalf of an accused. Because the provision applies only to “factual findings,” great care must be taken to distinguish such factual determinations from opinions, recommendations, and incidental inferences.”

(j) Rule 803(10) is amended by inserting the following at the end:

“2016 Amendment: Rule 803(10) was modified based on the amendment to Fed. R. Evid. 803(10), effective 1 December 2013. The amendment of the Federal Rules was in response to Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Melendez-Diaz Court declared that a testimonial certificate could be admitted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment to Rule 803(10) is taken largely from the amendment to the Fed. R. Evid. 803(10) but has been modified to adapt it to the military environment.”

Section 6. Appendix 23, Analysis of Punitive Articles is amended as follows:

Paragraph 110, Article 134—Threat, communicating, is amended by inserting the following at the end:

“2016 Amendment: Subparagraph (c) was amended in light of Elonis v. United States, 135 S. Ct. 2001 (2015).

Section 7. The Discussion to Part II of the Manual for Courts-Martial, United States, is amended as follows:

(a) A new Discussion is inserted after R.C.M. 306(b)(2)(B) and before R.C.M. 306(b)(2)(C) and reads as follows:

“Any preferences as to disposition expressed by the victim regarding jurisdiction, while not binding, should be considered by the cognizant commander prior to making initial disposition.

The cognizant commander should continue to consider the views of the victim as to jurisdiction until final disposition of the case.”

(b) Section (H)(ii) of the Discussion immediately following 307(c)(3) is amended to read as follows:

“(ii) Victim. In the case of an offense against the person or property of a person, the first name, middle initial, and last name or first, middle, and last initials of such person should be alleged, if known. If the name of the victim is unknown, a general physical description may be used. If this cannot be done, the victim may be described as “a person whose name is unknown.” Military rank or grade should be alleged, and must be alleged if an element of the offense, as in an allegation of disobedience of the command of a superior officer. If the person has no military position, it may otherwise be necessary to allege the status as in an allegation of using provoking words toward a person subject to the code. See paragraph 42 of Part IV. Counsel for the government should be aware that if initials of victims are used, additional notice of the identity of victims will be required.”

(c) The Discussion immediately following R.C.M. 401(c) is amended by inserting the following new paragraph at the beginning of the Discussion:

“When an alleged offense involves a victim, the victim should, whenever practicable, be provided an opportunity to express views regarding the disposition of the charges. The commander with authority to dispose of charges should consider such views of the victim prior to deciding how to dispose of the charges and should continue to consider the views of the victim until final disposition of the case. A “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”

(d) The Discussion immediately after R.C.M. 604(a) is amended by inserting the following new paragraph between the third and fourth paragraphs:

“When an alleged offense involves a victim, the victim should, whenever practicable, be provided an opportunity to express views regarding the withdrawal of any charges or specifications in which the victim is named. The convening authority or other individual authorized to act on the charges should consider such views of the victim prior to withdrawing said charges or specifications and should continue to consider the views of the victim until final disposition of the case. A “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”

(e) A new Discussion section is inserted immediately following R.C.M. 705(c)(2)(C) and reads as follows:

“A promise to provide restitution includes restitution to a victim of an alleged offense committed by the accused in accordance with Article 6b(a)(6).”

(f) The Discussion section following R.C.M. 907(b)(1)(B) is deleted.

(g) The Discussion section following R.C.M. 910(f)(4) is amended to read as follows:

“If the plea agreement contains any unclear or ambiguous terms, the military judge should obtain clarification from the parties. If there is doubt about the accused's understanding of any terms in the agreement, the military judge should explain those terms to the accused. See also subsection (e) of this rule. The victim is not a party to the agreement.”

(h) The Discussion immediately after the sole paragraph in R.C.M. 1002 is moved to immediately after R.C.M. 1002(b).

(i) The Discussion section following R.C.M. 1105(b)(2)(C) is amended to read as follows:

“For example, post-trial conduct of the accused, such as providing restitution to the victim of the accused's offense in accordance with Article 6b(a)(6), or exemplary behavior, might be appropriate.”

(j) The Discussion section following R.C.M. 1107(b)(1) is amended to read as follows:

“The action is taken in the interests of justice, discipline, mission requirements, clemency, and other appropriate reasons. If errors are noticed by the convening authority, the convening authority may take corrective action under this rule to the extent that the convening authority is empowered by Article 60.”

(k) A new Discussion section is inserted immediately following R.C.M. 1107(c)(2) and reads follows:

“The military follows a unitary sentencing model where the court-martial may impose only a single, unitary sentence covering all of the offenses for which there was a finding of guilty; courts-martial do not impose sentences per offense. See R.C.M. 1002(b). Therefore, where the adjudged sentence for the case includes dismissal, dishonorable discharge, bad-conduct discharge, or confinement for more than six months, the sentence adjudged for the entire case, and not per offense, controls when deciding what actions are available to the convening authority.”

(l) A new Discussion section is inserted immediately following R.C.M. 1107(e)(1)(C)(ii) and reads as follows:

“Per Article 60(c)(4)(A) and subsection (d)(1)(A) and (B) of this rule, disapproval of the sentence is not authorized where a court-martial's adjudged sentence for the case includes confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad- conduct discharge. In such cases, the convening authority may not order a rehearing because disapproval of the sentence is required for a convening authority to order a rehearing. See Article 60(f)(3).”

(m) The Discussion following R.C.M. 1107(e)(1)(B)(iii) is deleted.

(n) A new Discussion is inserted after the new R.C.M. 1107(2)(B)(iii) and reads as follows:

“A sentence rehearing, rather than a reassessment, may be more appropriate in cases where a significant part of the government's case has been dismissed. The convening authority may not take any actions inconsistent with directives of superior competent authority. Where that directive is unclear, appropriate clarification should be sought from the authority issuing the original directive. For purposes of R.C.M. 1107(e)(1)(B), the term “superior competent authority” does not include superior convening authorities but rather, for example, the appropriate Judge Advocate General or a court of competent jurisdiction.”

(o) A new Discussion is inserted after the new R.C.M. 1107(2)(C)(ii) and reads as follows:

“For example, if proof of absence without leave was by improperly authenticated documentary evidence admitted over the objection of the defense, the convening authority may disapprove the findings of guilty and sentence and order a rehearing if there is reason to believe that properly authenticated documentary evidence or other admissible evidence of guilt will be available at the rehearing. On the other hand, if no proof of unauthorized absence was introduced at trial, a rehearing may not be ordered.”

(p) A new paragraph is added to the end of the Discussion immediately following R.C.M. 1108(b) and reads as follows:

“The limitations on suspension of the execution of any sentence or part thereof contained in Article 60 apply to a decision by a convening authority or other person acting on the case under Article 60, as opposed to an individual remitting or suspending a sentence pursuant to a different authority, such as Article 74. See R.C.M. 1107(d).”

(q) A new Discussion section is inserted immediately following the new R.C.M. 1109(h)(4) and reads as follows:

“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 hearing officer is required to include in the record of the hearing, at a minimum, a summary of the substance of all testimony.

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

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

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