[Federal Register: August 15, 2003 (Volume 68, Number 158)]
[Notices]
[Page 48886-48888]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au03-42]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed Amendments
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial,
United States (2002 ed.) and Notice of Public Meeting.
-----------------------------------------------------------------------
SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States (2002 ed.) (MCM). The
proposed changes constitute the 2003 annual review required by the MCM
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint
Service Committee (JSC) on Military Justice,'' May 3, 2003. The
proposed changes concern the rules of procedure and evidence and the
punitive articles applicable in trials by courts-martial. These
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 also sets forth the date, time and location for the
public meeting of the JSC to discuss the proposed changes.
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.
DATES: Comments on the proposed changes must be received no later than
October 31, 2003 to be assured consideration by the JSC. A public
meeting will be held on October 1, 2003 at 11 a.m. in Room 808, 1501
Wilson Boulevard, Rosslyn, VA 22209-2403.
ADDRESSES: Comments on the proposed changes should be sent to
Lieutenant Commander James Carsten, Office of the Judge Advocate
General, 716 Sicard St. SE., Suite 1000, Washington, DC 20374-5047.
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, (202) 685-7298, (202) 685-7687 fax.
SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM 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.''
[[Page 48887]]
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.M. 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 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 R.C.M. 912(f)(4) 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, 56 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,
[[Page 48888]]
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 placed 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. McGrath, 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 by 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: August 11, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-20870 Filed 8-14-03; 8:45 am]
BILLING CODE 5001-08-P