[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Notices]
[Pages 18123-18124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9993]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Revised notice of proposed amendments.
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SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States (1995 Edition). On 4
April 1996, the 1996 draft annual review, as required by the Manual for
Courts-Martial and DoD Directive 5500.17, ``Review of the Manual for
Courts-Martial,'' January 23, 1985, was published in the Federal
Register, 61 Fed. Reg. 15044-53 (1996). That publication inadvertently
published some of the text out of order. This publication is intended
to supplement that earlier publication and to extend the public comment
period to 25 June 1996.
The full text of the effected sections follows:
R.C.M. 908(a) is amended to read as follows:
(a) In general. In a trial by a court-martial over which a military
judge presides and in which a punitive discharge may be adjudged, the
United States may appeal an order or ruling that terminates the
proceedings with respect to a charge or specification, or excludes
evidence that is substantial proof of a fact material in the
proceedings, or directs the disclosure of classified information, or
that imposes sanctions for nondisclosure of classified information. The
United States may also appeal a refusal by the military judge to issue
a protective order sought by the United States to prevent the
disclosure of classified information or to enforce such an order that
has previously been issued by the appropriate authority. However, the
United States may not appeal an order or ruling that is, or amounts to,
a finding of not guilty with respect to the charge or specification.
The analysis accompanying R.C.M. 908 is amended by inserting the
following at the end thereof:
1996 Amendment: This change resulted from Congress' amendment to
Article 621 in the National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106 (1996). It permits interlocutory appeal of
rulings disclosing classified information.
R.C.M. 909 is amended to read as follows:
(a) In general. No person may be brought to trial by court-martial
if that person is presently suffering from a mental disease or defect
rendering him or her mentally incompetent to the extent that he or she
is unable to understand the nature of the proceedings against that
person or to conduct or cooperate intelligently in the defense of the
case.
(b) Presumption of capacity. A person is presumed to have the
capacity to stand trial unless the contrary is established.
(c) Determination before referral. If an inquiry pursuant to R.C.M.
706 conducted before referral concludes that an accused is suffering
from a mental disease or defect that renders him or her mentally
incompetent to stand trial, and the general court-martial convening
authority concurs with that conclusion, that accused shall be committed
by the general court-martial convening authority to the custody of the
U.S. Attorney General. If the general court-martial convening authority
does not concur, that authority may refer the charges to trial.
(d) Determination after referral. After referral, the military
judge may conduct a hearing to determine the mental capacity of the
accused. If an inquiry pursuant to R.C.M. 706 conducted after referral
but before trial concludes that an accused is suffering from a mental
disease or defect that renders him or her mentally incompetent to stand
trial, the military judge shall conduct a hearing to determine the
mental capacity of the accused. Any such hearing shall be conducted in
accordance with paragraph (e) of this rule.
(e) Incompetency determination hearing.
(1) Nature of issue. The mental capacity of the accused is an
interlocutory question of fact.
(2) Standard. Trial may proceed unless it is established by a
preponderance of the evidence that the accused is presently suffering
from a mental disease or defect rendering him or her mentally
incompetent to the extent that he or she is unable to understand the
nature of the proceedings against the accused or to conduct or
cooperate intelligently in the defense of the case. In making this
determination, the military judge is not bound by the rules of evidence
except with respect to privileges.
(3) If the military judge finds the accused is incompetent to stand
trial, the judge shall report this finding to the general court-martial
convening authority, who shall commit the accused to the custody of the
Attorney General.
(f) Hospitalization of the accused. An accused who is found
incompetent to stand trial under this rule shall be hospitalized by the
Attorney General as provided in section 4241(d) of title 18, United
States Code. If notified that the accused has recovered to such an
extent that he or she is able to understand the nature of the
proceedings and to conduct or cooperate intelligently in the defense of
the case, then the general court-martial convening authority shall
promptly take custody of the accused. If, at the end of the period of
hospitalization, the accused's mental condition has not so improved,
action shall be taken in accordance with section 4246 of title 18.
(g) Excludable delay. All periods of commitment shall be excluded
as provided by R.C.M. 707(c). The 120-day time period under R.C.M. 707
shall begin anew on the date the general court-martial convening
authority takes custody of the accused at the end of any period of
commitment.
The discussion following R.C.M. 909(f) is amended by adding the
following:
[[Page 18124]]
Under section 4241(d) of title 18, the initial period of
hospitalization for an incompetent accused shall not exceed four
months. However, in determining whether there is a substantial
probability the accused will attain the capacity to permit the trial to
proceed in the foreseeable future, the accused may be hospitalized for
an additional reasonable period of time.
This additional period of time ends either when the accused's
mental condition is improved so that trial may proceed, or when the
pending charges against the accused are dismissed. If charges are
dismissed solely due to the accused's mental condition, the accused is
subject to hospitalization as provided in section 4241 of title 18.
The analysis accompanying R.C.M. 909 is amended by inserting the
following at the end thereof:
1996 Amendment: The rule was changed to provide for the
hospitalization of an incompetent accused after the enactment of
Article 76b, UCMJ, in the National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106 (1996).
ADDRESSES: Comments on the proposed changes should be sent to Maj. Paul
Holden, Office of the Judge Advocate General, Criminal Law Division,
2200 Army Pentagon, Washington, D.C. 20310-2200.
DATES: Comments on the proposed changes must be received no later than
25 June 1996 for consideration by the Joint Service Committee on
Military Justice.
FOR FURTHER INFORMATION CONTACT:
LT J. Russell McFarlane, JAGC, UNSR, Executive Secretary, Joint Service
Committee on Military Justice, Office of the Judge Advocate General,
Criminal Law Division, Building 111, Washington Navy Yard, Washington,
D.C. 20374-1111; (202) 433-5895.
Dated: April 18, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-9993 Filed 4-23-96; 8:45 am]
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