81 FR 15278 - Manual for Courts-Martial; Amendments to Appendix 22
DEPARTMENT OF DEFENSE
Office of the Secretary Federal Register Volume 81, Issue 55 (March 22, 2016)
Office of the Secretary
Federal Register Volume 81, Issue 55 (March 22, 2016)
| Page Range | 15278-15289 | |
| FR Document | 2016-06403 |
[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)] [Notices] [Pages 15278-15289] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-06403] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Office of the Secretary Manual for Courts-Martial; Amendments to Appendix 22 AGENCY: Joint Service Committee on Military Justice (JSC), Department of Defense. ACTION: Publication of Discussion and Analysis (Supplementary Materials) accompanying the Manual for Courts-Martial, United States (2012 ed.) (MCM). ----------------------------------------------------------------------- SUMMARY: The JSC hereby publishes Supplementary Materials accompanying the MCM as amended by Executive Orders 13643, 13669, and 13696. These changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, ``Preparation, [[Page 15279]] Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters and Testimony,'' June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency. These Supplementary Materials have been approved by the JSC and the Acting General Counsel of the Department of Defense. DATES: The Supplementary Materials are effective as of March 22, 2016. FOR FURTHER INFORMATION CONTACT: Major Harlye S.M. Carlton, USMC, (703) 963-9299 or [email protected]. The JSC Web site is located at: http://jsc.defense.gov. SUPPLEMENTARY INFORMATION: Annex Section 1: The Discussion to Part IV of the Manual for Courts- Martial, United States, is amended as follows: (a) A new Discussion is inserted immediately after Paragraph 40.c.1. and reads as follows: ``Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention.'' (b) A new Discussion is inserted immediately after Paragraph 103a.c.1. and reads as follows: ``Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention.'' Sec. 2: Appendix 22 of the Manual for Courts-Martial, United States, is amended as follows: (a) The Note at the beginning of the first paragraph, Section I, General Provisions, is deleted. (b) Section I, General Provisions, is amended by adding the following after the final paragraph: ``2013 Amendment. On December 1, 2011, the Federal Rules of Evidence were amended by restyling the rules, making them simpler to understand and use, without changing the substantive meaning of any rule. In light of the amendments to the Federal Rules of Evidence, significant changes to the Military Rules of Evidence (Mil. R. Evid.) were implemented by Executive Order 13643, dated May 15, 2013. In addition to stylistic changes that harmonize the Mil. R. Evid. with the Federal Rules, the changes also ensure that the rules address the admissibility of evidence, rather than the conduct of the individual actors. Like the Federal Rules of Evidence, these rules ultimately dictate whether evidence is admissible and, therefore, it is appropriate to phrase the rules with admissibility as the focus, rather than a focus on the actor (i.e., the commanding officer, military judge, accused, etc.). The rules were also reformatted, and the new format achieves a clearer presentation. This was accomplished by indenting paragraphs with headings and hanging indents to allow the practitioner to distinguish between different subsections of the rules. The restyled rules also reduce the use of inconsistent terms that are intended to mean the same thing but may, because of the inconsistent use, be misconstrued by the practitioner to mean something different. While most of the changes avoid any style improvement that might result in a substantive change in the application of the rule, some of those changes to the rules were proposed with the express purpose of changing the substantive content of the rule in order to affect the application of the rule in practice. The analysis of each rule clearly indicates whether the drafters intended the changes to be substantive or merely stylistic. The reader is encouraged to consult the analysis of each rule if he or she has questions as to whether the drafters intended a change to the rule to have an effect on a ruling of admissibility.'' (c) The analysis following Mil. R. Evid. 101 is amended by adding the following language after the final paragraph: ``2013 Amendment. In subsection (a), the phrase ``including summary courts-martial'' was removed. The drafters recommended removing this phrase because Rule 1101 already addresses the applicability of these rules to summary courts-martial. In subsection (b), the word ``shall'' was changed to ``will'' in accordance with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as ``shall'' and ``should'' because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. See Fed. R. Evid. 101, Restyled Rules Committee Note. The drafters did not intend this amendment to change any result in any ruling on evidence admissibility. The discussion sections do not have the force of law and may be changed without an Executive Order, as warranted by changes in applicable case law. The discussion sections should be considered treatise material and are non-binding on the practitioner. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (d) The analysis following Mil. R. Evid. 103 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (e) The analysis following Mil. R. Evid. 104 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (f) The title of the analysis section of Mil. R. Evid. 105 is changed to ``Limiting evidence that is not admissible against other parties or for other purposes.'' (g) The analysis following Mil. R. Evid. 105 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (h) The analysis following Mil. R. Evid. 106 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (i) The analysis following Mil. R. Evid. 201 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. Former subsection (d) was subsumed into subsection (c) and the remaining subsections were renumbered accordingly. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (j) The numbering and title of the analysis section of Mil. R. Evid. 201A is [[Page 15280]] changed to ``Rule 202 Judicial notice of law.'' (k) The analysis following Mil. R. Evid. 202 is amended by adding the following language after the final paragraph: ``2013 Amendment. Former Rule 201A was renumbered so that it now appears as Rule 202. In previous editions, Rule 202 did not exist and therefore no other rules were renumbered as a result of this change. The phrase ``in accordance with Mil. R. Evid. 104'' was added to subsection (b). This amendment clarifies that Rule 104 controls the military judge's relevancy determination. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (l) The analysis following Mil. R. Evid. 301 is amended by adding the following language after the final paragraph: ``2013 Amendment. In subsection (d), the word ``answer'' should be defined as ``a witness's . . . response to a question posed.'' Black's Law Dictionary 100 (8th ed. 2004). Subsection (d) only applies when the witness's response to the question posed may be incriminating. It does not apply when the witness desires to make a statement that is unresponsive to the question asked for the purpose of gaining protection from the privilege. Former subsections (d) and (f)(2) were combined; this change makes the rule easier to use. The issues typically arise chronologically in the course of a trial, because a witness often testifies on direct without asserting the privilege and then, during the ensuing cross- examination, asserts the privilege. Former subsection (b)(2) was moved to a discussion section; the drafters recommended this change because subsection (b)(2) addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. The word ``should'' was changed to ``may;'' the drafters proposed this recommendation in light of CAAF's holding in United States v. Bell, 44 M.J. 403 (C.A.A.F. 1996). In that case, CAAF held that Congress did not intend for Article 31(b) warnings to apply at trial, and noted that courts have the discretion, but not an obligation, to warn witnesses on the stand. Id. at 405-06. If a member testifies at an Article 32 hearing or court-martial without receiving Article 31(b) warnings, his or her Fifth Amendment rights have not been violated and those statements can be used against him or her at subsequent proceedings. Id. In subsection (e), the phrase ``concerning the issue of guilt or innocence'' was removed; the drafters recommended this change because this subsection applies to the presentencing phase of the trial as well as the merits phase. The use of the term ``concerning the issue of guilt or innocence'' incorrectly implied that the subsection only referred to the merits phase. The rule was renamed ``Limited Waiver,'' changed from ``Waiver by the accused''; the drafters recommended this change to indicate that when an accused who is on trial for two or more offenses testifies on direct as to only one of the offenses, he or she has only waived his or her rights with respect to that offense and no other. This subsection was moved earlier in the rule and renumbered; the drafters recommended this change to address the issue of limited waivers earlier because of the importance of preserving the accused's right against self-incrimination. The remaining subsections were renumbered as appropriate. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (m) The analysis following Mil. R. Evid. 302 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (n) The analysis following Mil. R. Evid. 303 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (o) The analysis following Mil. R. Evid. 304 is amended by adding the following language after the final paragraph: ``2013 Amendment. Former subsection (c), which contains definitions of words used throughout the rule, was moved; it now immediately follows subsection (a) and is highly visible to the practitioner. Former subsection (h)(3), which discusses denials, was moved to subsection (a)(2); it is now included near the beginning of the rule and highlights the importance of an accused's right to remain silent. The remaining subsections were moved and renumbered; the rule now generally follows the chronology of how the issues might arise at trial. The drafters did not intend to change any result in any ruling on evidence admissibility. In subsection (b), the term ``allegedly'' was added. The term references derivative evidence and clarifies that evidence is not derivative unless a military judge finds, by a preponderance of the evidence, that it is derivative. In subsections (c)(5), (d), (f)(3)(A), and (f)(7), the word ``shall'' was replaced with ``will'' or ``must.'' The drafters agree with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as ``shall'' because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (p) The analysis following Mil. R. Evid. 305 is amended by adding the following language after the final paragraph: ``2013 Amendment. The definition of ``person subject to the code'' was revised. The change clarifies that the rule includes a person acting as a knowing agent only in subsection (c). Subsection (c) covers the situation where a person subject to the code is interrogating an accused, and therefore an interrogator would include a knowing agent of a person subject to the code, such as local law enforcement acting at the behest of a military investigator. The term ``person subject to the code'' is also used in subsection (f), which discusses a situation in which a person subject to the code is being interrogated. If an agent of a person subject to the code is being interrogated, subsection (f) is inapplicable, unless that agent himself or herself is subject to the code and is suspected of an offense. The definition of ``custodial interrogation'' was moved to subsection (b) from subsection (d) and the definitions are now co- located. The definition is derived from Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), and Berkemer v. McCarty, 468 U.S. 420, 442 (1984). ``Accused'' is defined as ``[a] person against whom legal proceedings have been initiated.'' Black's Law Dictionary 23 (8th ed. 2004). ``Suspect'' is defined as ``[a] person believed to have committed a crime or offense.'' Id. at 1486. In subsection (c)(1), the drafters recommended using the word ``accused'' in the first sentence because the rule generally addresses the [[Page 15281]] admissibility of a statement at a court-martial at which legal proceedings have been initiated against the individual. Throughout the remainder of the rule, the drafters recommended using ``accused'' and ``suspect'' together to elucidate that an interrogation that triggers the need for Article 31 warnings will often take place before the individual has become an accused and is still considered only a suspect. Although not specifically outlined in subsection (c), interrogators and investigators should fully comply with the requirements of Miranda. When a suspect is subjected to custodial interrogation, the prosecution may not use statements stemming from that custodial interrogation unless it demonstrates that the suspect was warned of his or her rights. 384 U.S. at 444. At a minimum, Miranda requires that ``the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.'' Id. A person subject to the code who is being interrogated may be entitled to both Miranda warnings and Article 31(b) warnings, depending on the circumstances. The titles of subsections (c)(2) and (c)(3) were changed to ``Fifth Amendment Right to Counsel'' and ``Sixth Amendment Right to Counsel'' respectively; the drafters recommended this change because practitioners are more familiar with those terms. In previous editions, the subsections did not expressly state which right was implicated. Although the rights were clear from the text of the former rules, the new titles will allow practitioners to quickly find the desired rule. Subsection (c)(3) is entitled ``Sixth Amendment Right to Counsel'' even though the protections of subsection (c)(3) exceed the constitutional minimal standard established by the Sixth Amendment as interpreted by the Supreme Court in Montejo v. Louisiana, 556 U.S. 778 (2009). In Montejo, the Court overruled its holding in Michigan v. Jackson, 475 U.S. 625 (1986), and held that a defendant's request for counsel at an arraignment or similar proceeding or an appointment of counsel by the court does not give rise to the presumption that a subsequent waiver by the defendant during a police-initiated interrogation is invalid. 556 U.S. at 797-98. In the military system, defense counsel is detailed to a court-martial. R.C.M. 501(b). The accused need not affirmatively request counsel. Under the Supreme Court's holding in Montejo, the detailing of defense counsel would not bar law enforcement from initiating an interrogation with the accused and seeking a waiver of the right to have counsel present. However, subsection (c)(3) provides more protection than the Supreme Court requires. Under this subsection, if an accused is represented by counsel, either detailed or retained, he or she may not be interrogated without the presence of counsel. This is true even if, during the interrogation, the accused waives his or her right to have counsel present. If charges have been preferred but counsel has not yet been detailed or retained, the accused may be interrogated if he or she voluntarily waives his or her right to have counsel present. The words ``after such request'' were added to subsection (c)(2) and elucidate that any statements made prior to a request for counsel are admissible, assuming, of course, that Article 31(b) rights were given. Without that phrase, the rule could be read to indicate that all statements made during the interview, even those made prior to the request, were inadmissible. The drafters did not intend such a meaning, leading to this recommended change. The drafters recommended changing the word ``shall'' to ``will'' in subsections (a), (d), and (f). The drafters agree with the approach of the Advisory Committee on Evidence Rules to minimize the use of ``shall'' because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. In subsection (e)(1), the requirement that the accused's waiver of the privilege against self-incrimination and the waiver of the right to counsel must be affirmative was retained. This rule exceeds the minimal constitutional requirement. In Berghuis v. Thompkins, 560 U.S. 370 (2010), the defendant remained mostly silent during a three-hour interrogation and never verbally stated that he wanted to invoke his rights to counsel and to remain silent. The Supreme Court held that the prosecution did not need to show that the defendant expressly waived his rights, and that an implicit waiver is sufficient. Id. at 384. Despite the Supreme Court's holding, under this rule, in order for a waiver to be valid, the accused or suspect must actually take affirmative action to waive his or her rights. This rule places a greater burden on the government to show that the waiver is valid, and provides more protection to the accused or suspect than is required under the Berghuis holding. In subsection (f)(2), the word ``abroad'' was replaced with ``outside of a state, district, commonwealth, territory, or possession of the United States.'' This change clearly defines where the rule regarding foreign interrogations applies. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (q) The analysis following Mil. R. Evid. 311 is amended by adding the following language after the final paragraph: ``2013 Amendment. The definition of ``unlawful'' was moved from subsection (c) to subsection (b) and now immediately precedes the subsection in which the term is first used in the rule. Other subsections were moved and now generally follow the order in which the issues described in the subsections arise at trial. The subsections were renumbered and titled; this change makes it easier for the practitioner to find the relevant part of the rule. Former subsection (d)(2)(c), addressing a motion to suppress derivative evidence, was subsumed into subsection (d)(1). This change reflects how a motion to suppress seized evidence must follow the same procedural requirements as a motion to suppress derivative evidence. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (r) The analysis following Mil. R. Evid. 312 is amended by adding the following language after the final paragraph: ``2013 Amendment. The last sentence of former subsection (b)(2) was moved to a discussion paragraph; the drafters recommended this change because it addresses the conduct of the examiner rather than the admissibility of evidence. See supra, General Provisions Analysis. Failure to comply with the requirement that a person of the same sex conduct the examination does not make the examination unlawful or the evidence inadmissible. In subsection (c)(2)(a), the words ``clear indication'' were replaced with ``probable cause.'' ``Clear indication'' was not well- understood by practitioners nor properly defined in case law, whereas ``probable cause'' is a recognized Fourth Amendment term. The use of the phrase ``clear indication'' likely came from the Supreme Court's [[Page 15282]] holding in Schmerber v. California, 384 U.S. 757 (1966). In that case, the Court stated: ``In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.'' Id. at 770. However, in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court clarified that it did not intend to create a separate Fourth Amendment standard when it used the words ``clear indication.'' Id. at 540 (``[W]e think that the words in Schmerber were used to indicate the necessity for particularized suspicion that the evidence sought might be found within the body of the individual, rather than as enunciating still a third Fourth Amendment threshold between `reasonable suspicion' and `probable cause.' ''). The appropriate standard for a search under subsection (c)(2)(a) is probable cause. The President's adoption of the probable cause standard raised the level of suspicion required to perform a search under this subsection beyond that which was required in previous versions of this rule. The same reasoning applies to the change in subsection (d), where the words ``clear indication'' were replaced with ``probable cause.'' This approach is consistent with the Court of Military Appeals' opinion in United States v. Bickel, 30 M.J. 277, 279 (C.M.A. 1990) (``We have no doubt as to the constitutionality of such searches and seizures based on probable cause''). In subsection (d), the term ``involuntary'' was replaced with ``nonconsensual'' for the sake of consistency and uniformity throughout the subsection; the drafters did not intend to change the rule in any practical way by using ``nonconsensual'' in the place of ``involuntary.'' A discussion paragraph was added following subsection (e) to address a situation in which a person is compelled to ingest a substance in order to locate property within that person's body. This paragraph was previously found in subsection (e); the drafters recommended removing it from the rule itself because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. The last line of subsection (f) was added; this change conforms the rule with CAAF's holding in United States v. Stevenson, 66 M.J. 15 (C.A.A.F. 2008). In Stevenson, the court held that any additional intrusion, beyond what is necessary for medical treatment, is a search within the meaning of the Fourth Amendment. Id. at 19 (``the Supreme Court has not adopted a de minimis exception to the Fourth Amendment's warrant requirement''). The drafters recommended moving the first line of former subsection (f) to a discussion paragraph because it addresses conduct rather than the admissibility of evidence, and is therefore more appropriately addressed in a discussion paragraph. See supra, General Provisions Analysis. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (s) The analysis following Mil. R. Evid. 313 is amended by adding the following language after the final paragraph: ``2013 Amendment. The definition of ``inventory was added to subsection (c) and further distinguishes inventories from inspections. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (t) The analysis following Mil. R. Evid. 314 is amended by adding the following language after subparagraph (k): ``2013 Amendment. Language was added to subsection (a). This language elucidates that the rules as written afford at least the minimal amount of protection required under the Constitution as applied to service members. If new case law is developed after the publication of these rules which raises the minimal constitutional standards for the admissibility of evidence, that standard will apply to evidence admissibility, rather than the standard established under these rules. Subsection (c) limits the ability of a commander to search persons or property upon entry to or exit from the installation alone, rather than anywhere on the installation, despite the indication of some courts in dicta that security personnel can search a personally owned vehicle anywhere on a military installation based on no suspicion at all. See, e.g., United States v. Rogers, 549 F.2d 490, 493-94 (8th Cir. 1976). Allowing suspicionless searches anywhere on a military installation too drastically narrows an individual's privacy interest. Although individuals certainly have a diminished expectation of privacy when they are on a military installation, they do not forgo their privacy interest completely. A Discussion section was added below subsection (c) to address searches conducted contrary to a treaty or agreement. That material was previously located in subsection (c). The drafters recommended moving it to the Discussion because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. Although not explicitly stated in subsection (e)(2), the Supreme Court's holding in Georgia v. Randolph, 547 U.S. 103 (2006), applies to this subsection. See id. at 114-15 (holding that a warrantless search was unreasonable if a physically present co-tenant expressly refused to give consent to search, even if another co-tenant had given consent). In subsection (f)(2), the phrase ``reasonably believed'' was changed to ``reasonably suspected.'' This change aligns the rule with recent case law and alleviates any confusion that ``reasonably believed'' established a higher level of suspicion required to conduct a stop-and-frisk than required by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The ``reasonably suspected'' standard conforms to the language of the Supreme Court in Arizona v. Johnson, 555 U.S. 323, 326 (2009), in which the Court stated: ``To justify a pat down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.'' This standard, and not a higher one, is required before an individual can be stopped and frisked under this subsection. Additionally, a discussion paragraph was added following this subsection to further expound on the nature and scope of the search, based on case law. See, e.g., Terry, 392 U.S. at 30-31; Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977). In subsection (f)(3), the drafters recommended changing the phrase ``reasonable belief'' to ``reasonable suspicion'' for the same reasons discussed above. The discussion section was added to provide more guidance on the nature and scope of the search, based on case law. See, e.g., Michigan v. Long, 463 U.S. 1032, 1049 (1983) (``the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of [[Page 15283]] weapons''); Mimms, 434 U.S. at 111 (no Fourth Amendment violation when the driver was ordered out of the car after a valid traffic stop but without any suspicion that he was armed and dangerous because ``what is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety''); Maryland v. Wilson, 519 U.S. 408 (1997) (extending the holding in Mimms to passengers as well as drivers). The language from former subsection (g)(2), describing the search of an automobile incident to a lawful arrest of an occupant, was moved to the discussion paragraph immediately following subsection (f)(3). The drafters recommended this change because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. The discussion section is based on the Supreme Court's holding in Arizona v. Gant, 556 U.S. 332, 351 (2009) (``Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest''). This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (t) The analysis following Mil. R. Evid. 315 is amended by adding the following language after the final paragraph: ``2013 Amendment. Former subsection (h) was moved so that it immediately follows subsection (a). The drafters recommended changing this language to a discussion paragraph because it generally applies to the entire rule, rather than any particular subsection and also because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. In subsection (b), the term ``authorization to search'' was changed to ``search authorization.'' This amendment aligns the rule with the term more commonly used by practitioners and law enforcement. The drafters recommended moving former subsection (c)(4) to a discussion paragraph immediately following subsection (c) because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. The second sentence in former subsection (d)(2) was moved to subsection (d). This change elucidates that its content applies to both commanders under subsection (d)(1) and military judges or magistrates under subsection (d)(2). The drafters made this recommendation in reliance on CAAF's decision in United States v. Huntzinger, 69 M.J. 1 (C.A.A.F. 2010), which held that a commander is not per se disqualified from authorizing a search under this rule even if he or she has participated in investigative activities in furtherance of his or her command responsibilities. Former subsection (h)(4), entitled, ``Search warrants,'' was moved to subsection (e), now entitled ``Who May Search.'' This change co- locates it with the subsection discussing the execution of search authorizations. In subsection (f)(2), the word ``shall'' was changed to ``will.'' This change brings the rule in conformance with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as ``shall'' and ``should'' because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. In recommending this amendment, the drafters did not intend to change any result in any ruling on evidence admissibility. Subsection (g) was revised. The drafters' intent behind this revision was to include a definition of exigency rather than to provide examples that may not encompass the wide range of situations where exigency might apply. The definition is derived from Supreme Court jurisprudence. See Kentucky v. King, 563 U.S. 452 (2011). The drafters recommended retaining language concerning military operational necessity as an exigent circumstance because this rule may be applied to a unique military context where it might be difficult to communicate with a person authorized to issue a search authorization. See, e.g., United States v. Rivera, 10 M.J. 55 (C.M.A. 1980) (noting that exigency might exist because of difficulties in communicating with an authorizing official, although the facts of that case did not support such a conclusion). Nothing in this rule would prohibit a law enforcement officer from entering a private residence without a warrant to protect the individuals inside from harm, as that is not a search under the Fourth Amendment. See, e.g., Brigham City v. Stuart, 547 U.S. 398 (2006) (holding that, regardless of their subjective motives, police officers were justified in entering a home without a warrant, under exigent circumstances exception to warrant requirement, as they had an objectively reasonable basis for believing that an occupant was seriously injured or imminently threatened with injury). This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (u) The analysis following Mil. R. Evid. 316 is amended by adding the following language after the final paragraph: ``2013 Amendment. In subsection (a), the word ``reasonable'' was added and aligns the rule with the language found in the Fourth Amendment of the U.S. Constitution and Mil. R. Evid. 314 and 315. In subsection (c)(5)(C), the drafters intended the term ``reasonable fashion'' to include all action by law enforcement that the Supreme Court has established as lawful in its plain view doctrine. See, e.g., Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (holding that there was no search when an officer merely recorded serial numbers that he saw on a piece of stereo equipment, but that the officer did conduct a search when he moved the equipment to access serial numbers on the bottom of the turntable); United States v. Lee, 274 U.S. 559, 563 (1927) (use of a searchlight does not constitute a Fourth Amendment violation). The drafters did not intend to establish a stricter definition of plain view than that required by the Constitution, as interpreted by the Supreme Court. An officer may seize the item only if his or her conduct satisfies the three-part test prescribed by the Supreme Court: (1) He or she does not violate the Fourth Amendment by arriving at the place where the evidence could be plainly viewed; (2) its incriminating character is ``readily apparent''; and (3) he or she has a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 136-37 (1990). This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (v) The analysis following Mil. R. Evid. 317 is amended by adding the following language after the final paragraph: ``2013 Amendment. Former subsections (b) and (c)(3) were moved to a discussion paragraph. The drafters recommended this change because they address conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. [[Page 15284]] This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (w) The analysis following Mil. R. Evid. 321 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (x) The title of the analysis section of Mil. R. Evid. 401 is changed to ``Test for relevant evidence.'' (y) The analysis following Mil. R. Evid. 401 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (z) The title of the analysis section of Mil. R. Evid. 402 is changed to ``General admissibility of relevant evidence.'' (aa) The analysis following Mil. R. Evid. 402 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (bb) The analysis following Mil. R. Evid. 403 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (cc) The title of the analysis section of Mil. R. Evid. 404 is changed to ``Character evidence; crime or other acts.'' (dd) The analysis following Mil. R. Evid. 404 is amended by adding the following language after the final paragraph: ``2013 Amendment. The word ``alleged'' was added to references to the victim throughout this rule. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ee) The analysis following Mil. R. Evid. 405 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ff) The analysis following Mil. R. Evid. 406 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (gg) The analysis following Mil. R. Evid. 407 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (hh) The title of the analysis section of Mil. R. Evid. 408 is changed to ``Compromise offers and negotiations.'' (ii) The analysis following Mil. R. Evid. 408 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (jj) The title of the analysis section of Mil. R. Evid. 409 is changed to ``Offers to pay medical and similar expenses.'' (kk) The analysis following Mil. R. Evid. 409 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ll) The title of the analysis section of Mil. R. Evid. 410 is changed to ``Pleas, plea discussions, and related statements.'' (mm) The analysis following Mil. R. Evid. 410 is amended by adding the following language after the last paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (nn) The analysis following Mil. R. Evid. 411 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (oo) The title of the analysis section of Mil. R. Evid. 413 is changed to ``Similar crimes in sexual offense cases.'' (pp) The analysis following Mil. R. Evid. 413 is amended by adding the following language after the final paragraph: ``2013 Amendment. The time requirement in subsection (b) was changed and aligns with the time requirements in Mil. R. Evid. 412 and the Federal Rules of Evidence. This change is also in conformity with military practice in which the military judge may accept pleas shortly after referral and sufficiently in advance of trial. Additionally, subsection (d) was revised and aligns with the Federal Rules of Evidence. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (qq) The title of the analysis section of Mil. R. Evid. 414 is changed to ``Similar crimes in child-molestation cases.'' (rr) The analysis following Mil. R. Evid. 414 is amended by adding the following language after the final paragraph: ``2013 Amendment. The time requirement in subsection (b) was changed and aligns with the time requirements in Mil. R. Evid. 412 and the Federal Rules of Evidence. This change is also in conformity with military practice in which the military judge may accept pleas shortly after referral and sufficiently in advance of trial. Additionally, subsection (d) was revised and aligns with the Federal Rules of Evidence. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ss) The title of the analysis section of Mil. R. Evid. 501 is changed to ``Privilege in general.'' (tt) The analysis following Mil. R. Evid. 501 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (uu) The analysis following Mil. R. Evid. 502 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (vv) The analysis following Mil. R. Evid. 503 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' [[Page 15285]] (ww) The analysis following Mil. R. Evid. 504 is amended by adding the following language after the final paragraph: ``2011 Amendment. Subsection (c)(2)(D) was added pursuant to Executive Order 13593 of December 13, 2011. 2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (xx) The analysis following Mil. R. Evid. 505 is amended by adding the following language after the final paragraph: ``2013 Amendment. This rule was significantly restructured. These changes bring greater clarity and regularity to military practice. The changes focus primarily on expanding the military judge's explicit authority to conduct ex parte pretrial conferences in connection with classified information and detailing when the military judge is required to do so, limiting the disclosure of classified information per order of the military judge, specifically outlining the process by which the accused gains access to and may request disclosure of classified information, and the procedures for using classified material at trial. The drafters intended that the changes ensure classified information is not needlessly disclosed while at the same time ensure that the accused's right to a fair trial is maintained. The drafters adopted some of the language from the Military Commissions Rules of Evidence and the Classified Information Procedures Act.'' (yy) The analysis following Mil. R. Evid. 506 is amended by adding the following language after the final paragraph: ``2013 Amendment. This rule was significantly revised. These changes bring greater clarity to the rule and align it with changes made to Mil. R. Evid. 505.'' (zz) The title of the analysis section of Mil. R. Evid. 507 is changed to ``Identity of informants.'' (aaa) The analysis following Mil. R. Evid. 507 is amended by adding the following language after the final paragraph: ``2013 Amendment. Subsection (b) was added to define terms that are used throughout the rule and adding subsection (e)(1) to permit the military judge to hold an in camera review upon request by the prosecution. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (bbb) The analysis following Mil. R. Evid. 509 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. The language ``courts-martial, military judges'' was added to this rule, which now conforms to CAAF's holding in United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009). In that case, CAAF held that this rule as it was previously written created an implied privilege that protected the deliberative process of a military judge from disclosure and that testimony that revealed the deliberative thought process of the military judge is inadmissible. Matthews, 68 M.J. at 38-43. The changes simply express what the court found had previously been implied.'' (ccc) The analysis following Mil. R. Evid. 511 is amended by adding the following language after the final paragraph: ``2013 Amendment. Titles were added to the subsections of this rule, improving the rule's clarity and ease of use.'' (ddd) The analysis following Mil. R. Evid. 513 is amended by adding the following language after the final paragraph: ``2011 Amendment. In Executive Order 13593 of December 13, 2011, the President removed communications about spouse abuse as an exception to the spousal privilege by deleting the words ``spouse abuse'' and ``the person of the other spouse or'' from Mil. R. Evid. 513(d)(2), thus expanding the overall scope of the privilege. The privilege is now consistent with Mil. R. Evid. 514 in that spouse victim communications to a provider who qualifies as both a psychotherapist for purposes of Mil. R. Evid. 513 or as a victim advocate for purposes of Mil. R. Evid. 514 are covered. 2013 Amendment. The amendment to subsection (e)(3) further expands the military judge's authority and discretion to conduct in camera reviews. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (eee) The analysis following Mil. R. Evid. 514 is amended by adding the following language after the final paragraph: ``2013 Amendment. Like the psychotherapist-patient privilege created by Mil. R. Evid. 513, Mil. R. Evid. 514 establishes a victim advocate-victim privilege for investigations or proceedings authorized under the Uniform Code of Military Justice. Implemented as another approach to improving the military's overall effectiveness in addressing the crime of sexual assault, facilitating candor between victims and victim advocates, and mitigating the impact of the court- martial process on victims, the rule was developed in response to concerns raised by members of Congress, community groups, and the Defense Task Force on Sexual Assault in the Military Services (DTFSAMS). In its 2009 report, DTFSAMS noted that: 35 States had a privilege for communications between victim advocates and victims of sexual assault; victims did not believe they could communicate confidentially with medical and psychological support service personnel provided by DoD; there was interference with the victim-victim advocate relationship and continuing victim advocate services when the victim advocate was identified as a potential witness in a court-martial; and service members reported being ``re-victimized'' when their prior statements to victim advocates were used to cross-examine them in court-martial proceedings. Report of the Defense Task Force on Sexual Assault in the Military Services, at 69 (Dec. 2009). DTFSAMS recommended that Congress ``enact a comprehensive military justice privilege for communications between a Victim Advocate and a victim of sexual assault.'' Id. at ES-4. The JSC chose to model a proposed Mil. R. Evid. 514 on Mil. R. Evid. 513, including its various exceptions, in an effort to balance the privacy of the victim's communications with a victim advocate against the accused's legitimate needs. Under subsection (a) of Mil. R. Evid. 514, the words ``under the Uniform Code of Military Justice'' mean that the privilege only applies to alleged misconduct that could result in UCMJ proceedings. It does not apply in situations in which the alleged offender is not subject to UCMJ jurisdiction. The drafters did not intend Mil. R. Evid. 514 to apply in any proceeding other than those authorized under the UCMJ. However, service regulations dictate how the privilege is applied to non-UCMJ proceedings. Furthermore, this rule only applies to communications between a victim advocate and the victim of an alleged sexual or violent offense. Under subsection (b), the definition of ``victim advocate'' includes, but is not limited to, personnel performing victim advocate duties within the DoD Sexual Assault Prevention and Response Office (such as a Sexual Assault Response Coordinator), and the DoD Family Advocacy Program (such as a domestic abuse victim advocate). To determine whether an official's duties encompass victim advocate responsibilities, DoD and military service regulations should be consulted. A victim liaison [[Page 15286]] appointed pursuant to the Victim and Witness Assistance Program is not a ``victim advocate'' for purposes of this rule, nor are personnel working within an Equal Opportunity or Inspector General office. For purposes of this rule, ``violent offense'' means an actual or attempted murder, manslaughter, rape, sexual assault, aggravated assault, robbery, assault consummated by a battery, or similar offense. A simple assault may be a violent offense where violence has been physically attempted or menaced. A mere threatening in words is not a violent offense. This rule will apply in situations where there is a factual dispute as to whether a sexual or violent offense occurred and whether a person actually suffered direct physical or emotional harm from such an offense. The fact that such findings have not been judicially established shall not prevent application of this rule to alleged victims reasonably intended to be covered by this rule. Under subsection (d), the exceptions to Mil. R. Evid. 514 are similar to the exceptions found in Mil. R. Evid. 513, and the drafters intended them to be applied in the same manner. Mil. R. Evid. 514 does not include comparable exceptions found within Mil. R. Evid. 513(d)(2) and 513(d)(7). Under the ``constitutionally required'' exception, communications covered by the privilege would be released only in the narrow circumstances where the accused could show harm of constitutional magnitude if such communication was not disclosed. The drafters intended this relatively high standard of release to preclude fishing expeditions for possible statements made by the victim; the drafters did not intend it to be an exception that effectively renders the privilege meaningless. If a military judge finds that an exception to this privilege applies, special care should be taken to narrowly tailor the release of privileged communications to only those statements that are relevant and whose probative value outweighs unfair prejudice. The fact that otherwise privileged communications are admissible pursuant to an exception of Mil. R. Evid. 514 does not prohibit a military judge from imposing reasonable limitations on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States v. Gaddis, 70 M.J. 248, 256-57 (C.A.A.F. 2011); United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011).'' (fff) The title of the analysis section of Mil. R. Evid. 601 is changed to ``Competency to testify in general.'' (ggg) The analysis following Mil. R. Evid. 601 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (hhh) The title of the analysis section of Mil. R. Evid. 602 is changed to ``Need for personal knowledge.'' (iii) The analysis following Mil. R. Evid. 602 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (jjj) The title of the analysis section of Mil. R. Evid. 603 is changed to ``Oath or affirmation to testify truthfully.'' (kkk) The analysis following Mil. R. Evid. 603 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (lll) The title of the analysis section of Mil. R. Evid. 604 is changed to ``Interpreter.'' (mmm) The analysis following Mil. R. Evid. 604 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This rule was revised to match the Federal Rules of Evidence. However, the word ``qualified'' is undefined both in these rules and in the Federal Rules of Evidence. R.C.M. 502(e)(1) states that the Secretary concerned may prescribe qualifications for interpreters. Practitioners should therefore refer to the Secretary's guidance to determine if an interpreter is qualified under this rule. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (nnn) The title of the analysis section of Mil. R. Evid. 605 is changed to ``Military judge's competency as a witness.'' (ooo) The analysis following Mil. R. Evid. 605 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ppp) The title of the analysis section of Mil. R. Evid. 606 is changed to ``Member's competency as a witness.'' (qqq) The analysis following Mil. R. Evid. 606 is amended by adding the following language: ``2013 Amendment. The amendment to subsection (b) aligns this rule with the Federal Rules of Evidence. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (rrr) The title of the analysis section of Mil. R. Evid. 607 is changed to ``Who may impeach a witness.'' (sss) The analysis following Mil. R. Evid. 607 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ttt) The title of the analysis section of Mil. R. Evid. 608 is changed to ``A witness's character for truthfulness or untruthfulness.'' (uuu) The analysis following Mil. R. Evid. 608 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (vvv) The title of the analysis section of Mil. R. Evid. 609 is changed to ``Impeachment by evidence of a criminal conviction.'' (www) The analysis following Mil. R. Evid. 609 is amended by adding the following language after the final paragraph: ``2011 Amendment. Executive Order 13593 of December 13, 2011, amended this rule to conform the rule with the Federal Rules of Evidence. 2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (xxx) The analysis following Mil. R. Evid. 610 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (yyy) The title of the analysis section of Mil. R. Evid. 611 is changed to ``Mode and order of examining witnesses and presenting evidence.'' (zzz) The analysis following Mil. R. Evid. 611 is amended by adding the following language after the final paragraph: [[Page 15287]] ``2013 Amendment. The amendment to subsection (d)(3) conforms the rule with the United States Supreme Court's holding in Maryland v. Craig, 497 U.S. 836 (1990), and the Court of Appeals for the Armed Forces' holding in United States v. Pack, 65 M.J. 381 (C.A.A.F. 2007). In Craig, the Supreme Court held that, in order for a child witness to be permitted to testify via closed-circuit one-way video, three factors must be met: (1) The trial court must determine that it ``is necessary to protect the welfare of the particular child witness''; (2) the trial court must find ``that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant''; and (3) the trial court must find ``that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis.'' Craig, 497 U.S. at 855-56. In Pack, CAAF held that, despite the Supreme Court's decision in Crawford v. Washington, the Supreme Court did not implicitly overrule Craig and that all three factors must be present in order to permit a child witness to testify remotely. Pack, 65 M.J. at 384-85. This rule as previously written contradicted these cases because it stated that any one of four factors, rather than all three of those identified in Craig, would be sufficient to allow a child to testify remotely. The changes ensured that this subsection aligned with the relevant case law. The drafters took the language for the change to subsection (5) from 18 U.S.C. 3509(b)(1)(C), which covers child victims' and child witnesses' rights. There is no comparable Federal Rule of Evidence but a military judge may find that an Article 39(a) session outside the presence of the accused is necessary to make a decision regarding remote testimony. The drafters of the change intended to limit the number of people present at the Article 39(a) session in order to make the child feel more at ease, which is why they recommended adding language limiting those present to ``a representative'' of the defense and prosecution, rather than multiple representatives. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (aaaa) The title of the analysis section of Mil. R. Evid. 612 is changed to ``Writing used to refresh a witness's memory.'' (bbbb) The analysis following Mil. R. Evid. 612 is amended by adding the following language after the final paragraph: ``2013 Amendment. The revision to Subsection (b) of this rule is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (cccc) The title of the analysis section of Mil. R. Evid. 613 is changed to ``Witness's prior statement.'' (dddd) The analysis following Mil. R. Evid. 613 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (eeee) The title of the analysis section of Mil. R. Evid. 614 is changed to ``Court-martial's calling or examining a witness.'' (ffff) The analysis following Mil. R. Evid. 614 is amended by adding the following language after the final paragraph: ``2013 Amendment. In subsection (a), the word ``relevant'' was substituted for ``appropriate.'' Relevance is the most accurate threshold for admissibility throughout these rules. Additionally, the phrase ``Following the opportunity for review by both parties'' was added to subsection (b); this change aligns it with the standard military practice to allow the counsel for both sides to review a question posed by the members and to voice objections before the military judge rules on the propriety of the question. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (gggg) The title of the analysis section of Mil. R. Evid. 615 is changed to ``Excluding witnesses.'' (hhhh) The analysis following Mil. R. Evid. 615 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (iiii) The analysis following Mil. R. Evid. 701 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (jjjj) The title of the analysis section of Mil. R. Evid. 702 is changed to ``Testimony by expert witnesses.'' (kkkk) The analysis following Mil. R. Evid. 702 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (llll) The title of the analysis section of Mil. R. Evid. 703 is changed to ``Bases of an expert's opinion testimony.'' (mmmm) The analysis following Mil. R. Evid. 703 is amended by adding the following language: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (nnnn) The analysis following Mil. R. Evid. 704 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (oooo) The title of the analysis section of Mil. R. Evid. 705 is changed to ``Disclosing the facts or data underlying an expert's opinion.'' (pppp) The analysis following Mil. R. Evid. 705 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (qqqq) The title of the analysis section of Mil. R. Evid. 706 is changed to ``Court-appointed expert witnesses.'' (rrrr) The analysis following Mil. R. Evid. 706 is amended by adding the following language after the final paragraph: ``2013 Amendment. Former subsection (b) was removed. The authority of the military judge to tell members that he or she has called an expert witness is implicit in his or her authority to obtain the expert, and therefore the language was unnecessary. Although the language has been removed, the military judge may, in the exercise of discretion, notify the members that he or she called the expert. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (ssss) The analysis following Mil. R. Evid. 707 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (tttt) The title of the analysis section to Mil. R. Evid. 801 is changed to [[Page 15288]] ``Definitions that apply to this section; exclusions from hearsay.'' (uuuu) The analysis following Mil. R. Evid. 801 is amended by adding the following language after the final paragraph: ``2013 Amendment. The title of subsection (d)(2) was changed from ``Admission by party-opponent'' to ``An Opposing Party's Statement.'' This change conforms the rule with the Federal Rules of Evidence. The term ``admission'' is misleading because a statement falling under this exception need not be an admission and also need not be against the party's interest when spoken. In recommending this change, the drafters did not intend to change any result in any ruling on evidence admissibility.'' (vvvv) The title of the analysis section of Mil. R. Evid. 802 is changed to ``The rule against hearsay.'' (wwww) The analysis following Mil. R. Evid. 802 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (xxxx) The title of the analysis section of Mil. R. Evid. 803 is changed to ``Exceptions to the rule against hearsay--regardless of whether the declarant is available as a witness.'' (yyyy) The analysis following Mil. R. Evid. 803 is amended by adding the following language after the final paragraph: ``2013 Amendment. Subsection (24), which stated: ``Other Exceptions: [Transferred to Mil. R. Evid. 807]'' was removed. Practitioners are generally aware that Mil. R. Evid. 807 covers statements not specifically covered in this rule, and therefore the subsection was unnecessary. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility.'' (zzzz) The title of the analysis section of Mil. R. Evid. 804 is changed to ``Exceptions to the rule against hearsay--when the declarant is unavailable as a witness.'' (aaaaa) The analysis following Mil. R. Evid. 804 is amended by adding the following language after the final paragraph: ``2013 Amendment. In subsection (b)(3)(B), the phrase ``and is offered to exculpate the accused,'' was left despite the fact that it is not included in the current or former versions of the Federal Rules of Evidence. While subsection (24) in Mil. R. Evid. 803 was not removed, subsection (5) of Mil. R. Evid. 804, which directs practitioners to the residual exception in Mil. R. Evid. 807, was not removed. Leaving subsection (5) in place avoids having to renumber the remaining subsections. Although subsection (5) is not necessary, renumbering the subsections within this rule would have a detrimental effect on legal research and also would lead to inconsistencies in numbering between these rules and the Federal Rules. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (bbbbb) The analysis following Mil. R. Evid. 805 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (ccccc) The title of the analysis section of Mil. R. Evid. 806 is changed to ``Attacking and supporting the declarant's credibility.'' (ddddd) The analysis following Mil. R. Evid. 806 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (eeeee) The analysis following Mil. R. Evid. 807 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (fffff) The title of the analysis section of Mil. R. Evid. 901 is changed to ``Authenticating or identifying evidence.'' (ggggg) The analysis following Mil. R. Evid. 901 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (hhhhh) The title of the analysis section of Mil. R. Evid. 902 is changed to ``Evidence that is self-authenticating.'' (iiiii) The analysis following Mil. R. Evid. 902 is amended by adding the following language after the final paragraph: ``2013 Amendment. Language was added to subsection (11) and permits the military judge to admit non-noticed documents even after the trial has commenced if the offering party shows good cause to do so. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (jjjjj) The title of the analysis section of Mil. R. Evid. 903 is changed to ``Subscribing witness's testimony.'' (kkkkk) The analysis following Mil. R. Evid. 903 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (lllll) The title of the analysis section of Mil. R. Evid. 1001 is changed to ``Definitions that apply to this section.'' (mmmmm) The analysis following Mil. R. Evid. 1001 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (nnnnn) The analysis following Mil. R. Evid. 1002 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (ooooo) The analysis following Mil. R. Evid. 1003 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (ppppp) The title of the analysis section of Mil. R. Evid. 1004 is changed to ``Admissibility of other evidence of content.'' (qqqqq) The analysis following Mil. R. Evid. 1004 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. '' (rrrrr) The title of the analysis section of Mil. R. Evid. 1005 is changed to ``Copies of public records to prove content.'' (sssss) The analysis following Mil. R. Evid. 1005 is amended by adding the [[Page 15289]] following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (ttttt) The title of the analysis section of Mil. R. Evid. 1006 is changed to ``Summaries to prove content.'' (uuuuu) The analysis following Mil. R. Evid. 1006 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (vvvvv) The title of the analysis section of Mil. R. Evid. 1007 is changed to ``Testimony or statement of a party to prove content.'' (wwwww) The analysis following Mil. R. Evid. 1007 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (xxxxx) The title of the analysis section of Mil. R. Evid. 1008 is changed to ``Functions of the military judge and the members.'' (yyyyy) The analysis following Mil. R. Evid. 1008 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (zzzzz) The title of the analysis section of Mil. R. Evid. 1101 is changed to ``Applicability of these rules.'' (aaaaaa) The analysis following Mil. R. Evid. 1101 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (bbbbbb) The analysis following Mil. R. Evid. 1102 is amended by adding the following language after the final paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' (cccccc) The analysis following Mil. R. Evid. 1103 is amended by adding the following language in a new paragraph following the current paragraph: ``2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.'' Dated: March 17, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2016-06403 Filed 3-21-16; 8:45 am] BILLING CODE 5001-06-P
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(1) ‘‘A child of either’’ means a ‘‘(B) a counsel for the government [communicating to the said lla threat
biological child, adopted child, or ward who intends to offer a certification to ll] [ll], (if) (unless) he/she, the
of one of the spouses and includes a provides written notice of that intent at said ll, would [recommend dismissal
child who is under the permanent or least 14 days before trial, and the of the charges against said ll]
temporary physical custody of one of accused does not object in writing [(wrongfully refuse to testify) (testify
the spouses, regardless of the existence within 7 days of receiving the notice— falsely concerning ll) (ll)] [(at such
of a legal parent-child relationship. For unless the military judge sets a different trial) (before such investigating officer)
purposes of this rule only, a child is: time for the notice or the objection.’’ (before such preliminary hearing
(A) An individual under the age of 18; (m) Mil. R. Evid. 804(b)(1)(B) is officer)] [ll].’’
or amended by replacing ‘‘pretrial (e) Paragraph 108, Testify: Wrongful
(B) an individual with a mental investigation’’ with ‘‘preliminary refusal, subparagraph f. is amended by
handicap who functions under the age hearing.’’ replacing ‘‘officer conducting an
of 18. (n) Mil. R. Evid. 1101(d)(2) is investigation under Article 32, Uniform
(2) ‘‘Temporary physical custody’’ amended by replacing ‘‘pretrial Code of Military Justice’’ with ‘‘officer
means a parent has entrusted his or her investigations’’ with ‘‘preliminary conducting a preliminary hearing under
child with another. There is no hearings.’’ Article 32, Uniform Code of Military
minimum amount of time necessary to Sec. 3. Part IV of the Manual for Justice.’’
establish temporary physical custody, Courts-Martial, United States, is (f) Paragraph 110, Article 134—
nor is a written agreement required. amended as follows: Threat, communicating, subparagraph c.
Rather, the focus is on the parent’s (a) Paragraph 4, Article 80—Attempts, is amended to read as follows:
agreement with another for assuming subparagraph e. is amended to read as ‘‘c. Explanation. For purposes of this
parental responsibility for the child. For follows: paragraph, to establish that the
example, temporary physical custody ‘‘e. Maximum punishment. Any communication was wrongful it is
may include instances where a parent person subject to the code who is found necessary that the accused transmitted
entrusts another with the care of his or guilty of an attempt under Article 80 to the communication for the purpose of
her child for recurring care or during commit any offense punishable by the issuing a threat, with the knowledge
absences due to temporary duty or code shall be subject to the same that the communication would be
deployments. maximum punishment authorized for viewed as a threat, or acted recklessly
(3) As used in this rule, a the commission of the offense with regard to whether the
communication is ‘‘confidential’’ if attempted, except that in no case shall communication would be viewed as a
made privately by any person to the the death penalty be adjudged, and in threat. However, it is not necessary to
spouse of the person and is not intended no case, other than attempted murder, establish that the accused actually
to be disclosed to third persons other shall confinement exceeding 20 years be intended to do the injury threatened.
than those reasonably necessary for adjudged. Except in the cases of Nor is the offense committed by the
transmission of the communication.’’ attempts of Article 120(a) or (b), rape or mere statement of intent to commit an
(g) Mil. R. Evid. 505(e)(2) is amended sexual assault of a child under Article unlawful act not involving injury to
by replacing ‘‘investigating officer’’ with 120b(a) or (b), and forcible sodomy another. See also paragraph 109, Threat
‘‘preliminary hearing officer.’’ under Article 125, mandatory minimum
(h) Mil. R. Evid. 801(d)(1)(B) is or hoax designed or intended to cause
punishment provisions shall not apply.’’ panic or public fear.’’
amended to read as follows: (b) Paragraph 57, Article 131—
‘‘(B) is consistent with the declarant’s Perjury, subparagraph c.(1) is amended Dated: March 17, 2016.
testimony and is offered: by replacing ‘‘an investigation’’ with ‘‘a Aaron Siegel,
(i) to rebut an express or implied preliminary hearing.’’ Alternate OSD Federal Register Liaison
charge that the declarant recently (c) Paragraph 57, Article 131— Officer, Department of Defense.
fabricated it or acted from a recent Perjury, subparagraph c.(3) is amended [FR Doc. 2016–06393 Filed 3–21–16; 8:45 am]
improper influence or motive in so by replacing ‘‘investigation’’ with BILLING CODE 5001–06–P
testifying; or ‘‘preliminary hearing.’’
(ii) to rehabilitate the declarant’s (d) Paragraph 96, Article 134—
credibility as a witness when attacked Obstructing justice, subparagraph f. is DEPARTMENT OF DEFENSE
on another ground; or’’ amended to read as follows:
(i) The first sentence of Mil. R. Evid. ‘‘f. Sample specification. In that Office of the Secretary
803(6)(E) is amended to read as follows: (personal jurisdiction data), did, (at/on
‘‘(E) the opponent does not show that Manual for Courts-Martial;
board—location) (subject-matter
the source of information or the method Amendments to Appendix 22
jurisdiction data, if required), on or
or circumstance of preparation indicate
about 20, wrongfully (endeavor to) AGENCY: Joint Service Committee on
a lack of trustworthiness.’’
(j) Mil. R. Evid. 803(7)(C) is amended (impede (a trial by court-martial) (an Military Justice (JSC), Department of
to read as follows: investigation) (a preliminary hearing) Defense.
‘‘(C) the opponent does not show that (ll)) [influence the actions of ll, (a ACTION: Publication of Discussion and
the possible source of the information or trial counsel of the court-martial) (a Analysis (Supplementary Materials)
other circumstances indicate a lack of defense counsel of the court-martial) (an accompanying the Manual for Courts-
officer responsible for making a
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trustworthiness.’’ Martial, United States (2012 ed.) (MCM).
(k) The first sentence of Mil. R. Evid. recommendation concerning disposition
803(8)(B) is amended to read as follows: of charges) (ll)] [(influence) (alter) the SUMMARY: The JSC hereby publishes
‘‘(B) the opponent does not show that testimony of llas a witness before a Supplementary Materials accompanying
the source of information or other (court-martial) (an investigating officer) the MCM as amended by Executive
circumstances indicate a lack of (a preliminary hearing) (ll)] in the Orders 13643, 13669, and 13696. These
trustworthiness.’’ case of llby [(promising) (offering) changes have not been coordinated
(l) Mil. R. Evid. 803(10)(B) is amended (giving) to the said, (the sum of $) within the Department of Defense under
to read as follows: (ll, of a value of about $)] DoD Directive 5500.1, ‘‘Preparation,
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![15280 Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Notices
changed to ‘‘Rule 202 Judicial notice of In subsection (e), the phrase issues might arise at trial. The drafters
law.’’ ‘‘concerning the issue of guilt or did not intend to change any result in
(k) The analysis following Mil. R. innocence’’ was removed; the drafters any ruling on evidence admissibility.
Evid. 202 is amended by adding the recommended this change because this In subsection (b), the term ‘‘allegedly’’
following language after the final subsection applies to the presentencing was added. The term references
paragraph: phase of the trial as well as the merits derivative evidence and clarifies that
‘‘2013 Amendment. Former Rule phase. The use of the term ‘‘concerning evidence is not derivative unless a
201A was renumbered so that it now the issue of guilt or innocence’’ military judge finds, by a preponderance
appears as Rule 202. In previous incorrectly implied that the subsection of the evidence, that it is derivative.
editions, Rule 202 did not exist and only referred to the merits phase. The In subsections (c)(5), (d), (f)(3)(A), and
therefore no other rules were rule was renamed ‘‘Limited Waiver,’’ (f)(7), the word ‘‘shall’’ was replaced
renumbered as a result of this change. changed from ‘‘Waiver by the accused’’; with ‘‘will’’ or ‘‘must.’’ The drafters
The phrase ‘‘in accordance with Mil. R. the drafters recommended this change agree with the approach of the Advisory
Evid. 104’’ was added to subsection (b). to indicate that when an accused who Committee on Evidence Rules to
This amendment clarifies that Rule 104 is on trial for two or more offenses minimize the use of words such as
controls the military judge’s relevancy testifies on direct as to only one of the ‘‘shall’’ because of the potential
determination. offenses, he or she has only waived his disparity in application and
This revision is stylistic and aligns or her rights with respect to that offense interpretation of whether the word is
this rule with the Federal Rules of and no other. This subsection was precatory or prescriptive.
moved earlier in the rule and This revision is stylistic and
Evidence. The drafters did not intend to
renumbered; the drafters recommended addresses admissibility rather than
change any result in any ruling on
this change to address the issue of conduct. See supra, General Provisions
evidence admissibility.’’
limited waivers earlier because of the Analysis. The drafters did not intend to
(l) The analysis following Mil. R. change any result in any ruling on
Evid. 301 is amended by adding the importance of preserving the accused’s
right against self-incrimination. evidence admissibility.’’
following language after the final (p) The analysis following Mil. R.
paragraph: The remaining subsections were
renumbered as appropriate. This Evid. 305 is amended by adding the
‘‘2013 Amendment. In subsection (d), following language after the final
revision is stylistic and aligns this rule
the word ‘‘answer’’ should be defined as paragraph:
with the Federal Rules of Evidence. The
‘‘a witness’s . . . response to a question ‘‘2013 Amendment. The definition of
drafters did not intend to change any
posed.’’ Black’s Law Dictionary 100 (8th ‘‘person subject to the code’’ was
result in any ruling on evidence
ed. 2004). Subsection (d) only applies revised. The change clarifies that the
admissibility.’’
when the witness’s response to the (m) The analysis following Mil. R. rule includes a person acting as a
question posed may be incriminating. It Evid. 302 is amended by adding the knowing agent only in subsection (c).
does not apply when the witness desires following language after the final Subsection (c) covers the situation
to make a statement that is unresponsive paragraph: where a person subject to the code is
to the question asked for the purpose of ‘‘2013 Amendment. This revision is interrogating an accused, and therefore
gaining protection from the privilege. stylistic. The drafters did not intend to an interrogator would include a
Former subsections (d) and (f)(2) were change any result in any ruling on knowing agent of a person subject to the
combined; this change makes the rule evidence admissibility.’’ code, such as local law enforcement
easier to use. The issues typically arise (n) The analysis following Mil. R. acting at the behest of a military
chronologically in the course of a trial, Evid. 303 is amended by adding the investigator. The term ‘‘person subject
because a witness often testifies on following language after the final to the code’’ is also used in subsection
direct without asserting the privilege paragraph: (f), which discusses a situation in which
and then, during the ensuing cross- ‘‘2013 Amendment. This revision is a person subject to the code is being
examination, asserts the privilege. stylistic and addresses admissibility interrogated. If an agent of a person
Former subsection (b)(2) was moved rather than conduct. See supra, General subject to the code is being interrogated,
to a discussion section; the drafters Provisions Analysis. The drafters did subsection (f) is inapplicable, unless
recommended this change because not intend to change any result in any that agent himself or herself is subject
subsection (b)(2) addresses conduct ruling on evidence admissibility.’’ to the code and is suspected of an
rather than the admissibility of (o) The analysis following Mil. R. offense.
evidence. See supra, General Provisions Evid. 304 is amended by adding the The definition of ‘‘custodial
Analysis. The word ‘‘should’’ was following language after the final interrogation’’ was moved to subsection
changed to ‘‘may;’’ the drafters proposed paragraph: (b) from subsection (d) and the
this recommendation in light of CAAF’s ‘‘2013 Amendment. Former definitions are now co-located. The
holding in United States v. Bell, 44 M.J. subsection (c), which contains definition is derived from Miranda v.
403 (C.A.A.F. 1996). In that case, CAAF definitions of words used throughout Arizona, 384 U.S. 436, 444–45 (1966),
held that Congress did not intend for the rule, was moved; it now and Berkemer v. McCarty, 468 U.S. 420,
Article 31(b) warnings to apply at trial, immediately follows subsection (a) and 442 (1984).
and noted that courts have the is highly visible to the practitioner. ‘‘Accused’’ is defined as ‘‘[a] person
discretion, but not an obligation, to Former subsection (h)(3), which against whom legal proceedings have
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warn witnesses on the stand. Id. at 405– discusses denials, was moved to been initiated.’’ Black’s Law Dictionary
06. If a member testifies at an Article 32 subsection (a)(2); it is now included 23 (8th ed. 2004). ‘‘Suspect’’ is defined
hearing or court-martial without near the beginning of the rule and as ‘‘[a] person believed to have
receiving Article 31(b) warnings, his or highlights the importance of an committed a crime or offense.’’ Id. at
her Fifth Amendment rights have not accused’s right to remain silent. The 1486. In subsection (c)(1), the drafters
been violated and those statements can remaining subsections were moved and recommended using the word
be used against him or her at subsequent renumbered; the rule now generally ‘‘accused’’ in the first sentence because
proceedings. Id. follows the chronology of how the the rule generally addresses the
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![15282 Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Notices
holding in Schmerber v. California, 384 Amendment. Id. at 19 (‘‘the Supreme conducted contrary to a treaty or
U.S. 757 (1966). In that case, the Court Court has not adopted a de minimis agreement. That material was previously
stated: ‘‘In the absence of a clear exception to the Fourth Amendment’s located in subsection (c). The drafters
indication that in fact such evidence warrant requirement’’). The drafters recommended moving it to the
will be found, these fundamental recommended moving the first line of Discussion because it addresses conduct
human interests require law officers to former subsection (f) to a discussion rather than the admissibility of
suffer the risk that such evidence may paragraph because it addresses conduct evidence. See supra, General Provisions
disappear unless there is an immediate rather than the admissibility of Analysis.
search.’’ Id. at 770. However, in United evidence, and is therefore more Although not explicitly stated in
States v. Montoya de Hernandez, 473 appropriately addressed in a discussion subsection (e)(2), the Supreme Court’s
U.S. 531 (1985), the Supreme Court paragraph. See supra, General holding in Georgia v. Randolph, 547
clarified that it did not intend to create Provisions Analysis. U.S. 103 (2006), applies to this
a separate Fourth Amendment standard This revision is stylistic and subsection. See id. at 114–15 (holding
when it used the words ‘‘clear addresses admissibility rather than that a warrantless search was
indication.’’ Id. at 540 (‘‘[W]e think that conduct. See supra, General Provisions unreasonable if a physically present co-
the words in Schmerber were used to Analysis. The drafters did not intend to tenant expressly refused to give consent
indicate the necessity for particularized change any result in any ruling on to search, even if another co-tenant had
suspicion that the evidence sought evidence admissibility.’’ given consent).
might be found within the body of the (s) The analysis following Mil. R. In subsection (f)(2), the phrase
individual, rather than as enunciating Evid. 313 is amended by adding the ‘‘reasonably believed’’ was changed to
still a third Fourth Amendment following language after the final ‘‘reasonably suspected.’’ This change
threshold between ‘reasonable paragraph: aligns the rule with recent case law and
suspicion’ and ‘probable cause.’ ’’). The ‘‘2013 Amendment. The definition of alleviates any confusion that
appropriate standard for a search under ‘‘inventory was added to subsection (c) ‘‘reasonably believed’’ established a
subsection (c)(2)(a) is probable cause. and further distinguishes inventories higher level of suspicion required to
The President’s adoption of the probable from inspections. This revision is conduct a stop-and-frisk than required
cause standard raised the level of stylistic and addresses admissibility by the Supreme Court in Terry v. Ohio,
suspicion required to perform a search rather than conduct. See supra, General 392 U.S. 1 (1968). The ‘‘reasonably
under this subsection beyond that Provisions Analysis. The drafters did suspected’’ standard conforms to the
which was required in previous not intend to change any result in any language of the Supreme Court in
versions of this rule. The same ruling on evidence admissibility.’’ Arizona v. Johnson, 555 U.S. 323, 326
reasoning applies to the change in (t) The analysis following Mil. R. (2009), in which the Court stated: ‘‘To
subsection (d), where the words ‘‘clear Evid. 314 is amended by adding the justify a pat down of the driver or a
indication’’ were replaced with following language after subparagraph passenger during a traffic stop, however,
‘‘probable cause.’’ This approach is (k): just as in the case of a pedestrian
consistent with the Court of Military ‘‘2013 Amendment. Language was reasonably suspected of criminal
Appeals’ opinion in United States v. added to subsection (a). This language activity, the police must harbor
Bickel, 30 M.J. 277, 279 (C.M.A. 1990) elucidates that the rules as written reasonable suspicion that the person
(‘‘We have no doubt as to the afford at least the minimal amount of subjected to the frisk is armed and
constitutionality of such searches and protection required under the dangerous.’’ This standard, and not a
seizures based on probable cause’’). Constitution as applied to service higher one, is required before an
In subsection (d), the term members. If new case law is developed individual can be stopped and frisked
‘‘involuntary’’ was replaced with after the publication of these rules under this subsection. Additionally, a
‘‘nonconsensual’’ for the sake of which raises the minimal constitutional discussion paragraph was added
consistency and uniformity throughout standards for the admissibility of following this subsection to further
the subsection; the drafters did not evidence, that standard will apply to expound on the nature and scope of the
intend to change the rule in any evidence admissibility, rather than the search, based on case law. See, e.g.,
practical way by using ‘‘nonconsensual’’ standard established under these rules. Terry, 392 U.S. at 30–31; Pennsylvania
in the place of ‘‘involuntary.’’ Subsection (c) limits the ability of a v. Mimms, 434 U.S. 106, 111–12 (1977).
A discussion paragraph was added commander to search persons or In subsection (f)(3), the drafters
following subsection (e) to address a property upon entry to or exit from the recommended changing the phrase
situation in which a person is installation alone, rather than anywhere ‘‘reasonable belief’’ to ‘‘reasonable
compelled to ingest a substance in order on the installation, despite the suspicion’’ for the same reasons
to locate property within that person’s indication of some courts in dicta that discussed above. The discussion section
body. This paragraph was previously security personnel can search a was added to provide more guidance on
found in subsection (e); the drafters personally owned vehicle anywhere on the nature and scope of the search,
recommended removing it from the rule a military installation based on no based on case law. See, e.g., Michigan v.
itself because it addresses conduct suspicion at all. See, e.g., United States Long, 463 U.S. 1032, 1049 (1983) (‘‘the
rather than the admissibility of v. Rogers, 549 F.2d 490, 493–94 (8th Cir. search of the passenger compartment of
evidence. See supra, General Provisions 1976). Allowing suspicionless searches an automobile, limited to those areas in
Analysis. anywhere on a military installation too which a weapon may be placed or
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The last line of subsection (f) was drastically narrows an individual’s hidden, is permissible if the police
added; this change conforms the rule privacy interest. Although individuals officer possesses a reasonable belief
with CAAF’s holding in United States v. certainly have a diminished expectation based on ‘specific and articulable facts
Stevenson, 66 M.J. 15 (C.A.A.F. 2008). of privacy when they are on a military which, taken together with the rational
In Stevenson, the court held that any installation, they do not forgo their inferences from those facts, reasonably
additional intrusion, beyond what is privacy interest completely. warrant’ the officers in believing that
necessary for medical treatment, is a A Discussion section was added the suspect is dangerous and the suspect
search within the meaning of the Fourth below subsection (c) to address searches may gain immediate control of
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![15288 Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Notices
‘‘Definitions that apply to this section; removed, subsection (5) of Mil. R. Evid. ‘‘2013 Amendment. Language was
exclusions from hearsay.’’ 804, which directs practitioners to the added to subsection (11) and permits
(uuuu) The analysis following Mil. R. residual exception in Mil. R. Evid. 807, the military judge to admit non-noticed
Evid. 801 is amended by adding the was not removed. Leaving subsection (5) documents even after the trial has
following language after the final in place avoids having to renumber the commenced if the offering party shows
paragraph: remaining subsections. Although good cause to do so. This revision is
‘‘2013 Amendment. The title of subsection (5) is not necessary, stylistic and aligns this rule with the
subsection (d)(2) was changed from renumbering the subsections within this Federal Rules of Evidence. The drafters
‘‘Admission by party-opponent’’ to ‘‘An rule would have a detrimental effect on did not intend to change any result in
Opposing Party’s Statement.’’ This legal research and also would lead to any ruling on evidence admissibility.’’
change conforms the rule with the inconsistencies in numbering between (jjjjj) The title of the analysis section
Federal Rules of Evidence. The term these rules and the Federal Rules. This of Mil. R. Evid. 903 is changed to
‘‘admission’’ is misleading because a revision is stylistic and aligns this rule ‘‘Subscribing witness’s testimony.’’
statement falling under this exception with the Federal Rules of Evidence. The (kkkkk) The analysis following Mil. R.
need not be an admission and also need drafters did not intend to change any Evid. 903 is amended by adding the
not be against the party’s interest when result in any ruling on evidence following language in a new paragraph
spoken. In recommending this change, admissibility.’’ following the current paragraph:
the drafters did not intend to change (bbbbb) The analysis following Mil. R. ‘‘2013 Amendment. This revision is
any result in any ruling on evidence Evid. 805 is amended by adding the stylistic and aligns this rule with the
admissibility.’’ following language in a new paragraph Federal Rules of Evidence. The drafters
(vvvv) The title of the analysis section following the current paragraph: did not intend to change any result in
of Mil. R. Evid. 802 is changed to ‘‘The ‘‘2013 Amendment. This revision is any ruling on evidence admissibility.’’
rule against hearsay.’’ stylistic and aligns this rule with the (lllll) The title of the analysis section
(wwww) The analysis following Mil. Federal Rules of Evidence. The drafters of Mil. R. Evid. 1001 is changed to
R. Evid. 802 is amended by adding the did not intend to change any result in ‘‘Definitions that apply to this section.’’
following language after the final any ruling on evidence admissibility.’’ (mmmmm) The analysis following
paragraph: (ccccc) The title of the analysis Mil. R. Evid. 1001 is amended by adding
‘‘2013 Amendment. This revision is section of Mil. R. Evid. 806 is changed the following language after the final
stylistic and aligns this rule with the to ‘‘Attacking and supporting the paragraph:
Federal Rules of Evidence. The drafters declarant’s credibility.’’ ‘‘2013 Amendment. This revision is
had no intent to change any result in (ddddd) The analysis following Mil. stylistic and aligns this rule with the
any ruling on evidence admissibility.’’ R. Evid. 806 is amended by adding the Federal Rules of Evidence. The drafters
(xxxx) The title of the analysis section following language in a new paragraph did not intend to change any result in
of Mil. R. Evid. 803 is changed to following the current paragraph: any ruling on evidence admissibility.’’
‘‘Exceptions to the rule against ‘‘2013 Amendment. This revision is (nnnnn) The analysis following Mil.
hearsay—regardless of whether the stylistic and aligns this rule with the R. Evid. 1002 is amended by adding the
declarant is available as a witness.’’ Federal Rules of Evidence. The drafters following language after the final
(yyyy) The analysis following Mil. R. did not intend to change any result in paragraph:
Evid. 803 is amended by adding the any ruling on evidence admissibility.’’ ‘‘2013 Amendment. This revision is
following language after the final (eeeee) The analysis following Mil. R. stylistic and aligns this rule with the
paragraph: Evid. 807 is amended by adding the Federal Rules of Evidence. The drafters
‘‘2013 Amendment. Subsection (24), following language after the final did not intend to change any result in
which stated: ‘‘Other Exceptions: paragraph: any ruling on evidence admissibility.’’
[Transferred to Mil. R. Evid. 807]’’ was ‘‘2013 Amendment. This revision is (ooooo) The analysis following Mil. R.
removed. Practitioners are generally stylistic and aligns this rule with the Evid. 1003 is amended by adding the
aware that Mil. R. Evid. 807 covers Federal Rules of Evidence. The drafters following language in a new paragraph
statements not specifically covered in did not intend to change any result in following the current paragraph:
this rule, and therefore the subsection any ruling on evidence admissibility.’’ ‘‘2013 Amendment. This revision is
was unnecessary. This revision is (fffff) The title of the analysis section stylistic and aligns this rule with the
stylistic and aligns this rule with the of Mil. R. Evid. 901 is changed to Federal Rules of Evidence. The drafters
Federal Rules of Evidence. The drafters ‘‘Authenticating or identifying did not intend to change any result in
had no intent to change any result in evidence.’’ any ruling on evidence admissibility.’’
any ruling on evidence admissibility.’’ (ggggg) The analysis following Mil. R. (ppppp) The title of the analysis
(zzzz) The title of the analysis section Evid. 901 is amended by adding the section of Mil. R. Evid. 1004 is changed
of Mil. R. Evid. 804 is changed to following language after the final to ‘‘Admissibility of other evidence of
‘‘Exceptions to the rule against paragraph: content.’’
hearsay—when the declarant is ‘‘2013 Amendment. This revision is (qqqqq) The analysis following Mil. R.
unavailable as a witness.’’ stylistic and aligns this rule with the Evid. 1004 is amended by adding the
(aaaaa) The analysis following Mil. R. Federal Rules of Evidence. The drafters following language after the final
Evid. 804 is amended by adding the did not intend to change any result in paragraph:
following language after the final ‘‘2013 Amendment. This revision is
asabaliauskas on DSK3SPTVN1PROD with NOTICES
any ruling on evidence admissibility.’’
paragraph: (hhhhh) The title of the analysis stylistic and aligns this rule with the
‘‘2013 Amendment. In subsection section of Mil. R. Evid. 902 is changed Federal Rules of Evidence. ’’
(b)(3)(B), the phrase ‘‘and is offered to to ‘‘Evidence that is self- (rrrrr) The title of the analysis section
exculpate the accused,’’ was left despite authenticating.’’ of Mil. R. Evid. 1005 is changed to
the fact that it is not included in the (iiiii) The analysis following Mil. R. ‘‘Copies of public records to prove
current or former versions of the Federal Evid. 902 is amended by adding the content.’’
Rules of Evidence. While subsection following language after the final (sssss) The analysis following Mil. R.
(24) in Mil. R. Evid. 803 was not paragraph: Evid. 1005 is amended by adding the
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![Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Notices 15289
following language in a new paragraph following language in a new paragraph accordance with the Paperwork
following the current paragraph: following the current paragraph: Reduction Act of 1995 (PRA) (44 U.S.C.
‘‘2013 Amendment. This revision is ‘‘2013 Amendment. This revision is 3506(c)(2)(A)), provides the general
stylistic and aligns this rule with the stylistic and aligns this rule with the public and Federal agencies with an
Federal Rules of Evidence. The drafters Federal Rules of Evidence. The drafters opportunity to comment on proposed,
did not intend to change any result in did not intend to change any result in revised, and continuing collections of
any ruling on evidence admissibility.’’ any ruling on evidence admissibility.’’ information. This helps the Department
(ttttt) The title of the analysis section Dated: March 17, 2016. assess the impact of its information
of Mil. R. Evid. 1006 is changed to collection requirements and minimize
Aaron Siegel,
‘‘Summaries to prove content.’’ the public’s reporting burden. It also
(uuuuu) The analysis following Mil. Alternate OSD Federal Register Liaison
Officer, Department of Defense. helps the public understand the
R. Evid. 1006 is amended by adding the Department’s information collection
[FR Doc. 2016–06403 Filed 3–21–16; 8:45 am]
following language after the final requirements and provide the requested
paragraph: BILLING CODE 5001–06–P
data in the desired format. ED is
‘‘2013 Amendment. This revision is soliciting comments on the proposed
stylistic and aligns this rule with the information collection request (ICR) that
Federal Rules of Evidence. The drafters DEPARTMENT OF EDUCATION is described below. The Department of
did not intend to change any result in [Docket No.: ED–2015–ICCD–0145] Education is especially interested in
any ruling on evidence admissibility.’’ public comment addressing the
(vvvvv) The title of the analysis Agency Information Collection following issues: (1) Is this collection
section of Mil. R. Evid. 1007 is changed Activities; Submission to the Office of necessary to the proper functions of the
to ‘‘Testimony or statement of a party to Management and Budget for Review Department; (2) will this information be
prove content.’’ and Approval; Comment Request; processed and used in a timely manner;
(wwwww) The analysis following National Longitudinal Transition Study (3) is the estimate of burden accurate;
Mil. R. Evid. 1007 is amended by adding 2012 Phase II (4) how might the Department enhance
the following language in a new the quality, utility, and clarity of the
paragraph following the current AGENCY: Institute of Education Sciences
information to be collected; and (5) how
paragraph: (IES), Department of Education (ED).
might the Department minimize the
‘‘2013 Amendment. This revision is ACTION: Notice.
burden of this collection on the
stylistic and aligns this rule with the respondents, including through the use
Federal Rules of Evidence. The drafters SUMMARY: In accordance with the
Paperwork Reduction Act of 1995 (44 of information technology. Please note
did not intend to change any result in that written comments received in
any ruling on evidence admissibility.’’ U.S.C. chapter 3501 et seq.), ED is
proposing a reinstatement with change response to this notice will be
(xxxxx) The title of the analysis considered public records.
section of Mil. R. Evid. 1008 is changed of a previously approved information
collection. Title of Collection: National
to ‘‘Functions of the military judge and Longitudinal Transition Study 2012
the members.’’ DATES: Interested persons are invited to Phase II.
(yyyyy) The analysis following Mil. R. submit comments on or before April 21, OMB Control Number: 1850–0882.
Evid. 1008 is amended by adding the 2016. Type of Review: A reinstatement with
following language in a new paragraph ADDRESSES: To access and review all the change of a previously approved
following the current paragraph: documents related to the information
‘‘2013 Amendment. This revision is information collection.
collection listed in this notice, please Respondents/Affected Public:
stylistic and aligns this rule with the use http://www.regulations.gov by
Federal Rules of Evidence. The drafters Individuals or Households.
searching the Docket ID number ED– Total Estimated Number of Annual
did not intend to change any result in 2015–ICCD–0145. Comments submitted
any ruling on evidence admissibility.’’ Responses: 7,252.
in response to this notice should be Total Estimated Number of Annual
(zzzzz) The title of the analysis submitted electronically through the
section of Mil. R. Evid. 1101 is changed Burden Hours: 4,448.
Federal eRulemaking Portal at http:// Abstract: The National Longitudinal
to ‘‘Applicability of these rules.’’ www.regulations.gov by selecting the
(aaaaaa) The analysis following Mil. Transition Study 2012 (NLTS 2012) is
Docket ID number or via postal mail, the third in a series of studies being
R. Evid. 1101 is amended by adding the
commercial delivery, or hand delivery. conducted by the U.S. Department of
following language after the final
Please note that comments submitted by Education (ED), with the goal of
paragraph:
fax or email and those submitted after describing the characteristics, secondary
‘‘2013 Amendment. This revision is
the comment period will not be school experiences, transition, and
stylistic and aligns this rule with the
accepted. Written requests for outcomes of youth who receive special
Federal Rules of Evidence. The drafters
information or comments submitted by education services under IDEA. Phase II
did not intend to change any result in
postal mail or delivery should be of NLTS 2012 will utilize high school
any ruling on evidence admissibility.’’
(bbbbbb) The analysis following Mil. addressed to the Director of the and post-high school administrative
R. Evid. 1102 is amended by adding the Information Collection Clearance records data to collect information in
Division, U.S. Department of Education, three broad areas important to
asabaliauskas on DSK3SPTVN1PROD with NOTICES
following language after the final
paragraph: 400 Maryland Avenue SW., LBJ, Room understanding outcomes for youth with
‘‘2013 Amendment. This revision is 2E–105, Washington, DC 20202–4537. disabilities: (1) High school course-
stylistic and aligns this rule with the FOR FURTHER INFORMATION CONTACT: For taking and outcomes, (2) post-secondary
Federal Rules of Evidence. The drafters specific questions related to collection outcomes, and (3) employment and
did not intend to change any result in activities, please contact Yumiko earnings outcomes. Phase II collected
any ruling on evidence admissibility.’’ Sekino, 202–219–2046. information will build on a survey of a
(cccccc) The analysis following Mil. SUPPLEMENTARY INFORMATION: The nationally representative set of students
R. Evid. 1103 is amended by adding the Department of Education (ED), in with and without IEPs from Phase I of
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Document Created: 2018-02-02 15:15:27
Document Modified: 2018-02-02 15:15:27
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Publication of Discussion and Analysis (Supplementary Materials) accompanying the Manual for Courts-Martial, United States (2012 ed.) (MCM). | |
| Dates | The Supplementary Materials are effective as of March 22, 2016. | |
| Contact | Major Harlye S.M. Carlton, USMC, (703) 963-9299 or [email protected] The JSC Web site is located at: http://jsc.defense.gov. | |
| FR Citation | 81 FR 15278 |
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