[Federal Register: March 24, 2004 (Volume 69, Number 57)]
[Notices]
[Page 13816-13819]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr04-40]
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DEPARTMENT OF DEFENSE
Office of the Secretary
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.).
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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, (202) 685-7298, (202) 685-7714 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
[[Page 13817]]
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. Sec. 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, Sec. 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
[[Page 13818]]
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
[[Page 13819]]
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.
[FR Doc. 04-6488 Filed 3-23-04; 8:45 am]
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