04-6488. Manual for Courts-Martial; Proposed Amendments

AGENCY:

Joint Service Committee on Military Justice (JSC).

ACTION:

Notice of Summary of Public Comment Received Regarding Proposed Amendments to the Manual for Court-Martial, United States (2002 ed.).

SUMMARY:

The JSC is forwarding final proposed amendments to the Manual for Courts-Martial, United States (2002 ed.) (MCM) to the Department of Defense. The proposed changes, resulting from the JSC's 2003 annual review of the MCM, concern the rules of procedure applicable in trials by courts-martial. The proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation and Processing of Legislation, Executive Orders, Proclamations, and Reports and Comments Thereon,” May 21, 1964, and do not constitute the official position of the Department of Defense, the Military Departments, or any other government agency.

This notice is provided in accordance with DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003. This notice is intended only to improve the internal management of the Federal Government. It is not intended to create any right or benefit, substantive or procedural, enforceable at law by any party against the United States, its agencies, its officers, or any person.

In accordance with paragraph III.B.4 of the Internal Organization and Operating Procedures of the JSC, the committee also invites members of the public to suggest changes to the Manual for Courts-Martial in accordance with the described format.

ADDRESSES:

Comments and materials received from the public are available for inspection or copying at the Office of the Judge Advocate General (Code 20), 716 Sicard St. SE., Suite 1000, Washington, DC 20374-5047, between 8 a.m. and 3:30 p.m., Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander James Carsten, Executive Secretary, Joint Service Committee on Military Justice, Office of the Judge Advocate General, 716 Sicard St., SE., Suite 1000, Washington, DC 20374-5047, [phone], [phone] fax.

SUPPLEMENTARY INFORMATION:

Background

On 15 August 2003, the JSC published a Notice of Proposed Amendments to the Manual for Courts-Martial and a Notice of Public Meeting to receive comment on its 2003 draft annual review of the Manual for Courts-Martial. On 1 October 2003, the public meeting was held. Eight individuals attended the public meeting. Five individuals provided oral comment. The JSC received two letters commenting on the proposed amendments.

Purpose

The proposed changes concern the rules of procedure applicable to trials by courts-martial. More specifically, the proposed changes: Amend Rules of Court-Martial and other provisions of the Manual to allow for military justice to be administered in a joint command environment, while maintaining the applicability of specific service regulations/limitations according to the specific regulations of the accused's service; amend the rule that allows for an accused to challenge on appeal the denial of a challenge for cause, when the member was peremptorily challenged off the panel and never took part in the deliberations of the case; clarify the death penalty factors for violations of the law of war; updating analysis sections in the M.R.E. to harmonize current case law; and replacing “Department of Transportation” with “Department of Homeland Security.”

Discussion of Comments and Changes

In response to the request for public comment the JSC received oral and written comments. The JSC considered the public comments and is satisfied that the proposed amendments are appropriate to implement without additional modification. The JSC will forward the public comments and the proposed amendments to the Department of Defense.

Summaries of the oral and written comments regarding the proposed substantive changes follow:

a. One comment noted that the amendments that maintained the applicability of service members' specific service regulations when they are subject to a court-martial or non-judicial punishment in a joint environment are appropriate. However, the comment also noted that the amendments were slightly ambiguous because no definitions are readily available for the terms “combatant or joint commander,” “joint command,” or “joint task force”. Comment also noted that no clear rationale for the amendment is apparent on the face of the changes.

b. Certain comments argued that the proposed change to R.C.M. 912(f)(4) was improper. Comments indicated that the proposed change would lessen public confidence in the military justice system; reduced oversight of the military justice process; and are only being made in response to perceived adverse decisions of the various courts. Additionally, the rationale for the amendment that is modeled after similar provisions in Federal criminal procedures if not valid as the federal system has many more preemptory challenges than exist in the Military Justice System.

c. Certain comments opposed currently amending R.C.M. 1004(c)(10) because, as proposed, there is no rationale for the change provided on the face of the proposed amendments. It was noted that the amendment should be deferred until it can be explained and analyzed more thoroughly.

The JSC has considered these comments and has determined that the rulemaking process is adequate, satisfies statutory requirements, and provides sufficient opportunity for public participation. The JSC has determined that its proposed amendment to the R.C.M. 912 is proper and consistent with the rationale in the amended analysis. The change aligns courts-martial procedure more closely to federal practice and does not change the ability of defense counsel to exercise their peremptory challenge or raise on appeal those challenges for cause denied by the military judge, when the challenged member participated in the court-martial.

Proposed Amendments After Consideration of Public Comment Received

The proposed amendments to the Manual for Courts-Martial are as follows:

Amend the Discussion section of Part I (Preamble) by twice replacing the word “Transportation” with the words “Homeland Security”.

Amend Discussion section following R.C.M. 103(19), Definition for 10 U.S.C. § 801(1) by replacing the phrase “the General Counsel of the Department of Transportation with the phrase an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.

[Note: The Secretary of Homeland Security has designated the Chief Counsel, U.S. Coast Guard, to serve as the Judge Advocate General of the Coast Guard.]”

Amend R.C.M. 201(e)(2)(B) by adding the word “general” before “courts-martial” and inserting the following at the end thereof: “assigned or attached to a combatant command or joint command.”

Amend R.C.M. 201(e)(2)(C), inserting the phrase “assigned or attached to a joint command or joint task force,” immediately before the words “under regulations which the superior command may prescribe.”

Amend the Analysis accompanying R.C.M. 201(e)(2) by inserting the following paragraph: “200_ Amendment: Subsections (e)(2)(B) and (C) were revised to clarify that the reciprocal jurisdiction authority of joint commanders designated in either subsections (A), (B), or (C), is limited. This limitation is intended to preclude a joint commander from convening courts upon members who are not assigned or attached to a joint command.”

Amend R.C.M. 201(e)(3) by inserting the following immediately after the words “armed force”: “using the implementing regulations and procedures prescribed by the Secretary concerned of the military service of the accused,”

Amend the Analysis accompanying R.C.M. 201(e)(3) by inserting the following paragraph: “200_ Amendment: This rule clarifies that when a service member is tried by a court-martial convened by a combatant or joint commander, the implementing regulations and procedures of the service to which the accused is a member shall apply.”

Amend R.C.N. 201(e)(4) by adding the words, “, member, or counsel” after the words “military judge.”

Amend the Analysis accompanying R.C.M. 201(e)(4) by inserting the following paragraph: “200_ Amendment: Subsection (e)(4) was amended to clarify that members and counsel from different services may be detailed to a court-martial convened by a combatant or joint commander.”

Amend the Discussion following R.C.M. 201(e)(7)(B) by adding this sentence to the beginning of the Discussion: “As to the authority to convene courts-martial, see R.C.M. 504.”

Amend R.C.M. 503(a)(3) by inserting an “s” to the word “court” of the term “court-martial.”.

Amend R.C.M. 503(b)(3) by inserting “, a combatant command or joint command” after the words “A military judge from one armed force may be detailed to a court-martial convened in a different armed force.”

Amend the Analysis accompanying R.C.M. 503(b)(3) by inserting the following paragraph: “200_ Amendment: Subsection (b)(3) was amended to clarify that a military judge from any service may be detailed to a court-martial convened by a combatant or joint commander.;”

Amend R.C.M. 503(c)(3) by inserting the phrase “, a combatant command or joint command” after the words “A person from one armed force may be detailed to serve as counsel in a court-martial in a different armed force.”

Amend the Analysis accompanying R.C.M. 503(c)(3) by inserting the following: “200_ Amendment: Subsection (c)(3) was amended to clarify that counsel from any service may be detailed to a court-martial convened by a combatant or joint commander.”

Amend the R.C.M. 504(b)(2)(A) by inserting the following at the end thereof: “A subordinate joint command or joint task force is ordinarily considered to be ‘separate or detached.’ ”

Amend R.C.M. 504(b)(2)(B) by inserting the following as a third element thereof: “(iii) In a combatant command or joint command, by the officer exercising general court-martial jurisdiction over the command.”

Amend the Analysis accompanying R.C.M. 504(b)(2)(B) by inserting the following paragraph: “200_ Amendment: Subsection (b)(2)(B) was amended to clarify those authorized to determine when a unit is ‘separate or detached.’ ”

Amend the Discussion following R.C.M. 907(b)(2)(B) by inserting, in the first sentence, the word “either:” before the words “no limitation”, inserting the words “; or child abuse offenses committed on or after 24 November 1998 for which a time limitation has been enacted that is based upon a child abuse victim reaching the age of 25” after the words “no limitation as to time”, and by inserting the words “and (b)(2)” after the words “see Article 43(a)”.

Amend the Analysis accompanying R.C.M. 907(b)(2) by inserting the following paragraph: 200_ Amendment: The discussion was based upon the National Defense Authorization Act for Fiscal year 2004, Pub. L. No. 108-136, § 551, _Stat _(2003). the amendment to Art. 43, UCMJ creates a statute of limitations period that extends until a child-victim attains the age of 25 years for certain specified UCMJ and federal offenses committed on or after 24 November 1998. Due to Ex Post Facto considerations, allowance is required for those child abuse cases in which the five-year statute of limitations expired at the time the amendment to Article 43, UCMJ, became effective. See generally Stogner v. California, 123 S. Ct. 2446; 156 L. Ed. 2d 544; 2003 U.S. LEXIS 5011; 71 U.S.L.W. 4588; 2003 Cal. Daily Op. Service 5575; 2003 Daily Journal DAR 6989; 16 Fla. L. Weekly Fed. S 437. All child abuse offenses committed prior to that date would be subject to the previous five-year statute of limitations which would expire on the day prior to the effective date of the amendment—November 24, 2003. The referenced case permits unexpired periods to be extended by the new statute, but does not allow the statute to renew an expired period.

Amend R.C.M. 912(f)(43) by deleting the entirety of the fifth sentence and inserting the following words immediately after the words “When a challenge for cause has been denied” in the fourth sentence: “the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further,”

Amend the Analysis to R.C.M. 912(f)(4) by inserting the following paragraph: “200_ Amendment: This rule change is intended to conform military practice to federal practice and limit appellate litigation when the challenged panel member could have been peremptorily challenged or actually did not participate in the trial due to a peremptory challenge by either party. This amendment is consistent with the President's lawful authority to promulgate a rule that would result in placing before the accused the hard choice faced by defendants in federal district courts—to let the challenged juror sit on the case and challenge the ruling on appeal or to use a peremptory challenge to remove the juror and ensure an impartial jury. See United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003); United States v. Wiesen 57 M.J. 172 (C.A.A.F. 2001), petition for reconsideration denied, 57 M.J. 48 (C.A.A.F. 2002); United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000).

Amend R.C.M. 1004(c)(10) by deleting the words “death is authorized under the law of war for the offense” and replacing with the words “the violation constitutes a grave breach of the law of war.”

Insert the following Discussion to accompany R.C.M. 1004(c)(10): “Grave breaches of the laws and customs of war are defined by the 1949 Geneva Conventions and customary international law. For the definition of what may constitute a grave breach, see The First Geneva Convention, Aug. 12, 1949, art. 50, 6 U.S.T. 3114, T.I.A.S. 3362; The Second Geneva Convention, Aug. 12, 1949, art. 51, 6 U.S.T. 3217, T.I.A.S. 3363; The Third Geneva Convention, Aug. 12, 1949, art. 130, 6 U.S.T. 3316, T.I.A.S. 3364; and The Fourth Geneva Convention , Aug. 12, 1949, art. 147, 6 U.S.T. 3516, T.I.A.S. 3365.”

Amend the Analysis accompanying R.C.M. 1004(c)(10) by inserting the following paragraph: “200_ Amendment. Subsection (c)(10) was amended to clarify which law of war violations may subject the accused to capital punishment.”

Amend R.C.M. 1301(a) by inserting the following after the second sentence: “Summary courts-martial shall be conducted in accordance with the regulations of the military service to which the accused belongs.”

Amend the Analysis accompanying R.C.M. 1301(a) by inserting the following paragraph: “200_ Amendment: Subsection (a) was amended to clarify that summary courts-martial convened by a combatant or joint commander are to be conducted in accordance with the implementing regulations and procedures of the service to which the accused is a member.”

Amend M.R.E. 317(b) replacing the word “Transportation” with the words “Homeland Security/”

Amend the Analysis to M.R.E. 317(b) by replacing the word “Transportation” with the words “Homeland Security.”

Amend the Analysis to M.R.E. 801(d)(1)(B) by substituting the following therefor: “Rule 801(d)()1)(B) makes admissible on the merits a statement consistent with the in-court testimony of the witness and “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Unlike Rule 801(d)(1)(A), which addresses prior inconsistent statements given under oath, the earlier consistent statement need not have been made under oath or at any type of proceeding.

Rule 801(d)(1)(B) provides in pertinent part that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. The court has interpreted the rule to require that a prior statement, admitted as substantive evidence, precede any motive to fabricate or improper influence that it is offered to rebut. United States v. Allison, 49 M.J. 54 (C.A.A.F. 1998). Where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut. United States v. Faison, 49 M.J. 59 (C.A.A.F. 1998). This interpretation of the rule is consistent with the Supreme Court's decision in Tome v. United States, 513 U.S. 150 (1995).”

Delete the Analysis to M.R.E. 803(24).

Delete the Analysis to M.R.E. 804(b)(5).

Insert the following Analysis for M.R.E. 807: “MRE 807 was adopted on 30 May 1998 without change from the Federal Rule and represents the residual exception to the hearsay rule formerly contained in MRE 803(24) and MRE 804(b)(5).

The Rule strikes a balance between the general policy behind the Rules of Evidence of permitting admission of probative and reliable evidence and the congressional intent that “that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances.” S. Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 7051, 7066. MRE 807 represents the acceptance of the so-called “catch-all” or “residual” exception to the hearsay rule. Because of the Constitutional concerns associated with hearsay statements, the courts have created specific foundational requirements in order for residual hearsay to be admitted. See United States v. Haner, 49 M.J. 72 (C.A.A.F. 1998). These requirements are: necessity, materiality, reliability, and notice.

The necessity prong “essentially creates a ‘best evidence’ requirement.” United States v. Kelley, 45 M.J. 275 (C.A.A.F. 1996) (citing Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991)). Coupled with the rule's materiality requirement, necessity represents an important fact that is more than marginal or inconsequential and is in furtherance of the interests of justice and the general purposes of the rules of evidence. See United States v. Gonzalez, 2003 CCA Lexis 57 (A.F.Ct.Crim.App. 2003).

In order to fulfill the reliability condition, the proponent of the statement must demonstrate that the statement has particularized guarantees of trustworthiness as shown from the totality of the circumstances. Idaho v. Wright, 497 U.S. 805 (1990). The factors surrounding the taking of the statement and corroboration by other evidence should be examined to test the statement for trustworthiness. The Court of Appeals for the Armed Forces has held that the Supreme Court's prohibition against bolstering the indicia of reliability under a Sixth Amendment analysis does not apply to a residual hearsay analysis. Therefor, in addition to evidence of the circumstances surrounding the taking of the statement, extrinsic evidence can be considered. United States v. McGarth, 39 M.J. 158 (C.M.A. 1994).”

Amend Part IV, Punitive Articles, para. 16(c)(1)(a) by replacing the word “Transportation” with the words “Homeland Security.”

Amend Part V, Nonjudicial Punishment Procedure, paragraph 1(h), by renaming existing paragraph 1(h) to 1(i) and inserting the following new paragraph 1(h): “(h) Applicable standards. Unless otherwise provided, the service regulations and procedures of the servicemember shall apply.”

Amend the Analysis section of Part V, Nonjudicial Punishment Procedure, paragraph 1(h), by renaming it paragraph 1(i) and inserting the following as paragraph 1(h): “200_ Amendment: Subsection (h) is new. This subsection was added to clarify that nonjudicial punishment proceedings conducted in a combatant or joint command are to be conducted in accordance with the implementing regulations and procedures of the service to which the accused is a member.”

Amend Part V, Nonjudicial Punishment Procedure, paragraph 2(a) by deleting “Unless otherwise” and replacing with “As.”

Amend Part V, Nonjudicial Punishment Procedure, paragraph 2(a) by inserting the following after the second sentence: “Commander includes a commander of a joint command.”

Amend Part V, Nonjudicial Punishment Procedure, paragraph 2(a) by inserting the phrase “of a commander” in the third sentence after the words “the authority.”

Amend the Analysis accompanying Part V, Nonjudicial Punishment Procedure, paragraph 2 inserting the following paragraph: “200_ Amendment: Subsection (2) was amended to clarify the authority of the commander of a joint command to impose nonjudicial punishment upon service members of the joint command.”

Amend Part V, Nonjudicial Punishment Procedures, paragraph 7(e), by replacing the word “Transportation” with the words “Homeland Security.”

Delete Appendix 3.1.

Amend Appendix 21, Introduction, paragraph b (Supplementary Materials) by replacing the word “Transportation” with the words “Homeland Security.”

Amend the Introduction to Appendix 22 by inserting the following at the end of the first sentence: “(the department under which the Coast Guard was operating at that time.)”

Amend the Introduction to Appendix 22 by replacing the word “Transportation” located at the second paragraph with the words “Homeland Security.”

Dated: March 18, 2004.

L.M. Bynum,

Alternate OSD Federal Register, Liaison Officer, Department of Defense.