Executive Order 12198—Prescribing Amendments to the Manual for Courts-Martial, United States, 1969 (Revised Edition)
By virtue of the authority vested in me by the Uniform Code of Military Justice (title 10, United States Code, ch. 47), and as President of the United States, I hereby prescribe the following amendments to the Manual for Courts-Martial United States, 1969 (revised edition), prescribed by Executive Order No. 11476 as amended by Executive Order No. 11835 and Executive Order No. 12018.
PART A. MILITARY RULES OF EVIDENCE
Chapter 27 is amended to read as follows:
CHAPTER XXVII. MILITARY RULES OF EVIDENCE TABLE OF CONTENTS
SECTION I. GENERAL PROVISIONS
Rule 101. Scope.
(a) Applicability. (b) Secondary sources. (c) Rule of construction.
Rule 102. Purpose and Construction.
Rule 103. Rulings on Evidence.
(a) Effect of erroneous ruling.
(1) Objection.
(2) Offer of proof. (b) Record of offer and ruling. (c)
Hearing of members. (d) Plain error.
Rule 104. Preliminary Questions.
(a) Questions of admissibility generally. (b) Relevancy conditioned on fact. (c) Hearing of members. (d) Testimony by accused. (e) Weight and credibility.
Rule 105. Limited Admissibility.
Rule 106. Remainder of or Related Writings or Recorded Statements.
SECTION II. JUDICAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts.
(a) Scope of rule. (b) Kinds of facts. (c) When discretionary.
(d) When mandatory. (e) Opportunity to be heard. (f) Time of taking notice. (g) Instructing members.
Rule 201 A. Judicial Notice of Law.
(a) Domestic law. (b) Foreign law.
SECTION III. EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF-INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION
Rule 301. Privilege Concerning Compulsory Self-Incrimination.
(a) General rule. (b) Standing.
(1) In general.
(2) Judicial advice. (c) Exercise of the privilege.
(1) Immunity generally.
(2) Notification of immunity or leniency. (d) Waiver by a witness. (e) Waiver by the accused. (f) Effect of claiming the privilege.
(1) Generally.
(2) On cross-examination.
(3) Pretrial. (g) Instructions.
Rule 302. Privilege Concerning Mental Examination of an Accused.
(a) General rule. (b) Exceptions. (c) Release of evidence. (d)
Noncompliance by the accused.
Rule 303. Degrading Questions.
Rule 304. Confessions and Admissions.
(a) General rule. (b) Exception.
(c) Definitions.
(1) Confession.
(2) Admission.
(3) Involuntary. (d) Procedure.
(1) Disclosure.
(2) Motions and objections.
(3) Specificity.
(4) Rulings.
(5) Effect of guilty plea. (e) Burden of proof.
(1) In general.
(2) Weight of the evidence.
(3) Derivative evidence. (f) Defense evidence. (g)
Corroboration.
(1) Quantum of evidence needed.
(2) Procedure. (h) Miscellaneous.
(1) Oral statements.
(2) Completeness.
(3) Certain admissions by silence.
Rule 305. Warnings About Rights.
(a) General rule. (b) Definitions.
(1) Persons subject to the Uniform Code of Military Justice.
(2) Interrogation. (c) Counsel rights and warnings.
(1) General rule.
(2) Counsel. (d) Notice to counsel. (e) Exercise of rights.
(f) Waiver.
(1) General rule.
(2) Counsel. (g) Nonmilitary interrogations.
(1) General rule.
(2) Foreign interrogations.
Rule 306. Statements by One of Several Accused.
Rule 311. Evidence Obtained from Unlawful Searches and Seizures.
(a) General rule.
(1) Objection.
(2) Adequate interest. (b) Exception. (c) Nature of search or seizure.
(1) Military personnel or their agents.
(2) Other officials or agents.
(3) Officials of a foreign government or their agents. (d)
Motions to suppress and objections.
(1) Disclosure.
(2) Motion or objection.
(3) Specificity.
(4) Rulings. (e) Burden of proof.
(1) In general.
(2) Derivative evidence. (f) Defense evidence. (g) Scope of motions and objections challenging probable cause.
(1) Generally.
(2) False statements. (h) Objections to evidence seized unlawfully. (i) Effect of guilty plea.
Rule 312. Bodily Views and Intrusions.
(a) General rule. (b) Visual inspections of the body.
(1) Consensual.
(2) Involuntary. (c) Intrusion into body cavities.
(1) For purposes of seizure.
(2) For purpose of search. (d) Seizure of bodily fluids. (e)
Other intrusive bodily searches. (f) Intrusions for valid medical purposes. (g) Medical qualifications.
Rule 313. Administrative Inspections and Inventories in the Armed Forces.
(a) General rule. (b) Inspections. (c) Inventories.
Rule 314. Searches Not Requiring Probable Cause.
(a) General rule. (b) Border searches. (c) Searches upon entry to United States installations, aircraft, and vessels abroad. (d) Searches of government property. (e) Consent searches.
(1) General rule.
(2) Who may consent.
(3) Scope of consent.
(4) Voluntariness.
(5) Burden of proof. (f) Frisks incident to a lawful stop.
(1) Stops.
(2) Frisks. (g) Searches incident to a lawful apprehension.
(1) General rule.
(2) Search for weapons and destructible evidence.
(3) Examination for other persons. (h) Searches within jails, confinement facilities, or similar facilities. (i) Emergency searches to save life or for related purposes. (j) Searches of open fields and woodlands. (k) Other searches.
Rule 315. Probable Cause Searches.
(a) General rule. (b) Definitions.
(1) Authorization to search.
(2) Search warrant. (c) Scope of authorization.
(1) Persons.
(2) Military property.
(3) Persons and property within military control.
(4) Nonmilitary property within a foreign country. (d) Power to authorize.
(1) Commander.
(2) Delegee.
(3) Military judge. (e) Power to search. (f) Basis for search authorizations.
(1) Probable cause requirements.
(2) Probable cause determination. (g) Exigencies.
(1) Insufficient time.
(2) Lack of communications.
(3) Search of operable vehicle.
(4) Not required by Constitution. (h) Execution.
(1) Notice.
(2) Inventory.
(3) Foreign searches.
(4) Search warrants.
Rule 316. Seizures.
(a) General rule. (b) Seizure of property. (c) Apprehension.
(d) Seizure of property or evidence.
(1) Abandoned property.
(2) Consent.
(3) Government property.
(4) Other property.;
(A) Authorization.
(B) Exigent circumstances.
(C) Plain view.
(e) Power to seize.
Rule 317. Interception of Wire and Oral Communications.
(a) General rule. (b) Authorization for judicial applications in the United States. (c) Limitations.
Rule 321. Eyewitness Identification.
(a) General rule.
(1) Admissibility.
(2) Exclusionary rule. (b) Definition of "unlawful."
(1) Lineups and other identification processes.
(2) Lineups: right to counsel.
(A) Military lineups.
(B) Nonmilitary lineups.
(c) Motions to suppress and objections.
(1) Disclosure.
(2) Motion or objection.
(3) Specificity. (d) Burden of proof.
(1) Right to counsel.
(2) Unnecessarily suggestive identification. (e) Defense evidence. (f) Rulings. (g) Effect of guilty pleas.
SECTION IV. RELEVANCY AND ITS LIMITS
Rule 401. Definition of " Relevant Evidence."
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes.
(a) Character evidence generally.
(1) Character of the accused.
(2) Character of victim.
(3) Character of witness. (b) Other crimes, wrongs, or acts.
Rule 405. Methods of Proving Character.
(a) Reputation or opinion. (b) Specific instances of conduct.
(c) Affidavits. (d) Definition.
Rule 406. Habit; Routine Practice.
Rule 407. Subsequent Remedial Measures.
Rule 408. Compromise and Offer to Compromise.
Rule 409. Payment of Medical and Similar Expenses.
Rule 410. Inadmissibility of Pleas, Offers of Pleas, and Related Statements.
Rule 411. Liability Insurance.
Rule 412. Nonconsensual Sexual Offenses; Relevance of Victim's Past Behavior.
SECTION V. PRIVILEGES
Rule 501. General Rule.
Rule 502. Lawyer-Client Privilege.
(a) General rule of privilege. (b) Definitions. (c) Who may claim the privilege. (d) Exceptions.
(1) Crime or fraud.
(2) Claimants through same deceased client.
(3) Breach of duty by lawyer or client.
(4) Document attested by lawyer.
(5) Joint clients.
Rule 503. Communications to Clergy.
(a) General rule of privilege. (b) Definitions. (c) Who may claim the privilege.
Rule 504. Husband-Wife Privilege.
(a) Spousal incapacity. (b) Confidential communication made during marriage.
(1) General rule of privilege.
(2) Definition.
(3) Who may claim the privilege. (c) Exceptions.
(1) Spousal incapacity only.
(2) Spousal incapacity and confidential communications.
Rule 505. Classified Information.
(a) General rule of privilege. (b) Definitions.
(1) Classified information.
(2) National security. (c) Who may claim the privilege. (d) Action prior to referral of charges. (e) Pretrial session. (f) Action after referral of charges. (g) Disclosure of classified information to the accused.
(1) Protective order.
(2) Limited disclosure.
(3) Disclosure at trial of certain statements previously made by a witness.
(A) Scope.
(B) Closed session. (4) Record of trial.
(5) Recess. (h) Notice of the accused's intention to disclose classified information.
(1) Notice by the accused.
(2) Continuing duty to notify.
(3) Content of notice.
(4) Prohibition against disclosure.
(5) Failure to comply. (i) In camera proceeding for cases involving classified information.
(1) Definition.
(2) Motion for in camera proceeding.
(3) Demonstration of national security nature of the information.
(4) In camera proceeding.
(A) Procedure.
(B) Standard.
(C) Ruling.
(D) Alternatives to full disclosure.
(E) Sanctions.
(j) Introduction of classified information.
(1) Classified status.
(2) Precautions by the military judge.
(3) Contents of writing, recording, or photograph.
(4) Taking of testimony.
(5) Closed session.
(6) Record of trial. (k) Security procedures to safeguard against compromise of classified information disclosed to courts-martial.
Rule 506. Government Information Other Than Classified Information.
(a) General rule of privilege. (b) Scope. (c) Who may claim the privilege. (d) Action prior to referral of charges. (e) Action after referral of charges. (f) Pretrial session. (g) Disclosure of government information to the accused. (h) Prohibition against disclosure. (i) In camera proceedings.
(1) Definition.
(2) Motion for in camera proceeding.
(3) Demonstration of public interest nature of the information.
(4) In camera proceeding.
(A) Procedure.
(B) Standard.
(C) Ruling.
(D) Sanction.
(j) Introduction of government information subject to a claim or privilege.
(1) Precautions by military judge.
(2) Contents of writing, recording, or photograph.
(3) Taking of testimony. (k) Procedures to safeguard against compromise of government information disclosed to courts-martial.
Rule 507. Identity of Informant.
(a) Rule of privilege. (b) Who may claim the privilege. (c)
Exceptions.
(1) Voluntary disclosures; informant as witness.
(2) Testimony on the issue of guilt or innocence.
(3) Legality of obtaining evidence. (d) Procedures.
Rule 508. Political Vote.
Rule 509. Deliberations of Courts and Juries.
Rule 510. Waiver of Privilege by Voluntary Disclosure.
Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege.
Rule 512. Comment Upon or Inference from Claim of Privilege;
Instruction.
(a) Comment or inference not permitted. (b) Claiming privilege without knowledge of members.
SECTION VI. WITNESSES
Rule 601. General Rule of Competency.
Rule 602. Lack of Personal Knowledge.
Rule 603. Oath or Affirmation.
Rule 604. Interpreters.
Rule 605. Competency of Military Judge as Witness.
Rule 606. Competency of Court Member as Witness.
(a) At the court-martial. (b) Inquiry into validity of findings or sentence.
Rule 607. Who May Impeach.
Rule 608. Evidence of Character, Conduct, and Bias of Witness.
(a) Opinion and reputation evidence of character. (b) Specific instances of conduct. (c) Evidence of bias.
Rule 609. Impeachment by Evidence of Conviction of Crime.
(a) General rule. (b) Time limit. (c) Effect of pardon, annulment, or certificate of rehabilitation. (d) Juvenile adjudications. (e) Pendency of appeal. (f) Definition.
Rule 610. Religious Beliefs or Opinions.
Rule 611. Mode and Order of Interrogation and Presentation.
(a) Control by the military judge. (b) Scope of cross-examination. (c) Leading questions.
Rule 612. Writing Used to Refresh Memory.
Rule 613. Prior Statements of Witnesses.
(a) Examining witness concerning prior statement. (b) Extrinsic evidence of prior inconsistent statement of witness.
Rule 614. Calling and Interrogation of Witnesses by the Court-Martial.
(a) Calling by the court-martial. (b) Interrogation by the court-martial. (c) Objections. Rule 615. Exclusion of Witnesses.
SECTION VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses.
Rule 702. Testimony by Experts.
Rule 703. Bases of Opinion Testimony by Experts.
Rule 704. Opinion on Ultimate Issue.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion.
Rule 706. Court Appointed Experts.
(a) Appointment and compensation. (b) Disclosure of employment.
(c) Accused's experts of own selection.
SECTION VIII. HEARSAY
Rule 801. Definitions.
(a) Statement. (b) Declarant. (c) Hearsay. (d) Statements which are not hearsay.
(1) Prior statement by witness.
(2) Admission by party-opponent.
Rule 802. Hearsay Rule.
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
(1) Present sense impression. (2) Excited utterance. (3) Then existing mental, emotional, or physical condition. (4) Statements for purposes of medical diagnosis or treatment. (5) Recorded recollection. (6) Records of regularly conducted activity. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). (8) Public records and reports. (9) Records of vital statistics. (10) Absence of public record or entry. (11) Records of religious organizations. (12) Marriage, baptismal, and similar certificates. (13) Family records. (14) Records of documents affecting an interest in property. (15) Statements in documents affecting an interest in property. (16) Statements in ancient documents. (17) Market reports, commercial publications. (18) Learned treatises. (19) Reputation concerning personal or family history. (20) Reputation concerning boundaries or general history. (21) Reputation as to character. (22) Judgment of previous conviction. (23) Judgment as to personal, family or general history, or boundaries. (24) Other exceptions.
Rule 804. Hearsay Exceptions; Declarant Unavailable.
(a) Definition of unavailability. (b) Hearsay exceptions.
(1) Former testimony.
(2) Statement under belief of impending death.
(3) Statement against interest.
(4) Statement of personal or family history.
(5) Other exceptions.
Rule 805. Hearsay Within Hearsay.
Rule 806. Attacking and Supporting Credibility of Declarant.
SECTION IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Requirement of Authentication or Identification.
(a) General provision. (b) Illustrations.
(1) Testimony of witness with knowledge.
(2) Nonexpert opinion on handwriting.
(3) Comparison by trier or expert witness.
(4) Distinctive characteristics and the like.
(5) Voice identification.
(6) Telephone conversations.
(7) Public records or reports.
(8) Ancient documents or data compilation.
(9) Process or system.
(10) Methods provided by statute or rule.
Rule 902. Self-authentication.
(1) Domestic public documents under seal. (2) Domestic public documents not under seal. (3) Foreign public documents. (4) Certified copies of public records. (4a) Documents or records of the United States accompanied by attesting certificates. (5) Official publications. (6) Newspapers and periodicals. (7) Trade inscriptions and the like. (8) Acknowledged documents. (9) Commercial paper and related documents. (10) Presumptions under Acts of Congress and regulations.
Rule 903. Subscribing Witness' Testimony Unnecessary.
SECTION X.
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions.
(1) Writings and recordings. (2) Photographs. (3) Original. (4) Duplicate.
Rule 1002. Requirement of an Original.
Rule 1003. Admissibility of Duplicates.
Rule 1004. Admissibility of Other Evidence of Contents.
(1) Originals lost or destroyed. (2) Original not obtainable.
(3) Original in possession of opponent. (4) Collateral matters.
Rule 1005. Public Records.
Rule 1006. Summaries.
Rule 1007. Testimony or Written Admission of Party.
Rule 1008. Functions of Military Judge and Members. SECTION XI.
MISCELLANEOUS RULES
Rule 1101. Applicability of Rules.
(a) Rules applicable. (b) Rules of privilege. (c) Rules relaxed. (d) Rules inapplicable.
Rule 1102. Amendments.
Rule 1103. Title.
SECTION I. GENERAL PROVISIONS Rule 101. Scope
(a) Applicability. These rules are applicable in courts-martial, including summary courts-martial, to the extent and with the exceptions stated in rule 1101.
(b) Secondary Sources. If not otherwise prescribed in this Manual or these rules, and insofar as practicable and not inconsistent with or contrary to the Uniform Code of Military Justice or this Manual, courts-martial shall apply:
(1) First, the rules of evidence generally recognized in the trial of criminal cases in the United States district courts; and
(2) Second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law.
(c) Rule of construction. Except as otherwise provided in these rules, the term "military judge" includes the president of a special court-martial without a military judge and a summary court-martial officer. Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. Rule 103. Rulings on
Evidence
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the military judge by offer or was apparent from the context within which questions were asked. The standard provided in this subdivision does not apply to errors involving requirements imposed by the Constitution of the United States as applied to members of the armed forces except insofar as the error arises under these rules and this subdivision provides a standard that is more advantageous to the accused than the constitutional standard.
(b) Record of offer and ruling. The military judge may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The military judge may direct the making of an offer in question and answer form.
(c) Hearing of members. In a court-martial composed of a military judge and members, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the members by any means, such as making statements or offers of proof or asking questions in the hearing of the members.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge. Rule 104.
Preliminary Questions
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, the admissibility of evidence, an application for a continuance, or the availability of a witness shall be determined by the military judge. In making these determinations the military judge is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the military judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this Manual provide expressly to the contrary.
(c) Hearing of members. Except in cases tried before a special court-martial without a military judge, hearings on the admissibility of statements of an accused under rules 301 - 306 shall in all cases be conducted out of the hearing of the members. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if the accused so requests.
(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and credibility. This rule does not limit the right of a party to introduce before the members evidence relevant to weight or credibility. Rule 105. Limited admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly. Rule 106. Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
SECTION II. JUDICIAL NOTICE Rule 201.
Judicial Notice of Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known universally, locally, or in the area pertinent to the event or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. The military judge may take judicial notice, whether requested or not. The parties shall be informed in open court when, without being requested, the military judge takes judicial notice of an adjudicative fact essential to establishing an element of the case.
(d) When mandatory. The military judge shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing members. The military judge shall instruct the members that they may, but are not required to, accept as conclusive any matter judicially noticed. Rule 201 A. Judicial Notice of Law
(a) Domestic law. The military judge may take judicial notice of domestic law. Insofar as a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements of rule 201 apply.
(b) Foreign law. A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. The military judge, in determining foreign law, may consider any relevant material or source including testimony whether or not submitted by a party or admissible under these rules. Such a determination shall be treated as a ruling on a question of law.
SECTION III. EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF-INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION
Rule 301. Privilege Concerning Compulsory Self-Incrimination
(a) General rule. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31 of the Uniform Code of Military Justice are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied.
(b) Standing. (1) In general. The privilege of a witness to refuse to respond to a question the answer to which may tend to incriminate the witness is a personal one that the witness may exercise or waive at the discretion of the witness.
(2) Judicial advice. If a witness who is apparently uninformed of the privileges under this rule appears likely to incriminate himself or herself, the military judge should advise the witness of the right to decline to make any answer that might tend to incriminate the witness and that any self-incriminating answer the witness might make can later be used as evidence against the witness. Counsel for any party or for the witness may request the military judge to so advise a witness provided that such a request is made out of the hearing of the witness and, except in a special court-martial without a military judge, the members. Failure to so advise a witness does not make the testimony of the witness inadmissible.
(c) Exercise of the privilege. If a witness states that the answer to a question may tend to incriminate him or her, the witness may not be required to answer unless facts and circumstances are such that no answer the witness might make to the question could have the effect of tending to incriminate the witness or that the witness has, with respect to the question, waived the privilege against self-incrimination. A witness may not assert the privilege if the witness is not subject to criminal penalty as a result of an answer by reason of immunity, running of the statute of limitations, or similar reason.
(1) Immunity generally. The minimum grant of immunity adequate to overcome the privilege is that which under either paragraph 68h of this Manual or other proper authority provides that neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial other than in a prosecution for perjury, false swearing, the making of a false official statement, or failure to comply with an order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity.
(2) Notification of immunity or leniency. When a prosecution witness before a court-martial has been granted immunity or leniency in exchange for testimony, the grant shall be reduced to writing and shall be served on the accused prior to arraignment or within a reasonable time before the witness testifies. If notification is not made as required by this rule, the military judge may grant a continuance until notification is made, prohibit or strike the testimony of the witness, or enter such other order as may be required.
(d) Waiver by a witness. A witness who answers a question without having asserted the privilege against self-incrimination and thereby admits a self-incriminating fact may be required to disclose all information relevant to that fact except when there is a real danger of further self-incrimination. This limited waiver of the privilege applies only at the trial in which the answer is given, does not extend to a rehearing or new or other trial, and is subject to rule 608(b).
(e) Waiver by the accused. When an accused testifies voluntarily as a witness, the accused thereby waives the privilege against self-incrimination with respect to the matters concerning which he or she so testifies. If the accused is on trial for two or more offenses and on direct examination testifies concerning the issue of guilt or innocence as to only one or some of the offenses, the accused may not be cross-examined as to guilt or innocence with respect to the other offenses unless the cross-examination is relevant to an offense concerning which the accused has testified. This waiver is subject to rule 608(b).
(f) Effect of claiming the privilege. (1) Generally. The fact that a witness has asserted the privilege against self-incrimination in refusing to answer a question cannot be considered as raising any inference unfavorable to either the accused or the government.
(2) On cross-examination. If a witness asserts the privilege against self-incrimination on cross-examination, the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the matters to which the witness refuses to testify are purely collateral.
(3) Pretrial. The fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the Constitution of the United States or Article 31, remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated is inadmissible against the accused.
(g) Instructions. When the accused does not testify at trial, defense counsel may request that the members of the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counsel's election shall be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice. Rule 302. Privilege Concerning Mental Examination of an Accused
(a) General rule. The accused has a privilege to prevent any statement made by the accused at a mental examination ordered under paragraph 121 of this Manual and any derivative evidence obtained through use of such a statement from being received into evidence against the accused on the issue of guilt or innocence or during sentencing proceedings. This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by rule 305 at the examination.
(b) Exceptions. (1) There is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence.
(2) An expert witness may testify as to the reasons for the expert's conclusions and the reasons therefor as to the mental state of the accused, but such testimony may not extend to statements of the accused except as provided in (1).
(c) Release of evidence. If the defense offers expert testimony concerning the mental condition of the accused, the military judge, upon motion, shall order the release to the prosecution of the full contents, other than any statements made by the accused, of any report prepared pursuant to paragraph 121 of this Manual. If the defense offers statements made by the accused at such examination, the military judge may upon motion order the disclosure of such statements made by the accused and contained in the report as may be necessary in the interests of justice.
(d) Noncompliance by the accused. The military judge may prohibit an accused who refuses to cooperate in a mental examination authorized under paragraph 121 of this Manual from presenting any expert medical testimony as to any issue that would have been the subject of the mental examination.
(e) Procedure. The privilege in this rule may be claimed by the accused only under the procedure set forth in rule 304 for an objection or a motion to suppress. Rule 303. Degrading Questions No person may be compelled to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade that person. Rule 304. Confessions and Admissions
(a) General rule. An involuntary statement or any derivative evidence there-from may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.
(b) Exception. Where the statement is involuntary only in terms of noncompliance with the requirements concerning counsel under rule 305(d)-(e), this rule does not prohibit use of the statement to impeach by contradiction the in-court testimony of the accused or the use of such statement in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.
(c) Definitions. As used in these rules:
(1) Confession. A "confession" is an acknowledgment of guilt.
(2) Admission. An "admission" is a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.
(3) Involuntary. A statement is "involuntary" if it is obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the United States, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement.
(d) Procedure. (1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense the contents of all statements, oral or written, made by the accused that are relevant to the case, known to the trial counsel, and within the control of the armed forces.
(2) Motions and objections. (A) Motions to suppress or objections under this rule or rules 302 or 305 to statements that have been disclosed shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the objection.
(B) If the prosecution intends to offer against the accused a statement made by the accused that was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interests of justice.
(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion to suppress or objection under this rule or rules 302 or 305 shall be made in accordance with the procedure for challenging a statement under (A). If such evidence has not been so disclosed prior to arraignment, the requirements of (B) apply.
(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the taking of a statement, the military judge may make any order required in the interests of justice, including authorization for the defense to make a general motion to suppress or general objection.
(4) Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at trial, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state essential findings of fact on the record.
(5) Effect of guilty plea. A plea of guilty to an offense that results in a finding of guilty waives all privileges against self-incrimination and all motions and objections under this rule with respect to that offense regardless of whether raised prior to plea.
(e) Burden of proof. When an appropriate motion or objection has been made by the defense under this rule, the prosecution has the burden of establishing the admissibility of the evidence. When a specific motion or objection has been required under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.
(1) In general. The military judge must find by a preponderance of the evidence that a statement by the accused was made voluntarily before it may be received into evidence. When trial is by a special court-martial without a military judge, a determination by the president of the court that a statement was made voluntarily is subject to objection by any member of the court. When such objection is made, it shall be resolved pursuant to paragraph 57f of this Manual.
(2) Weight of the evidence. If a statement is admitted into evidence, the military judge shall permit the defense to present relevant evidence with respect to the voluntariness of the statement and shall instruct the members to give such weight to the statement as it deserves under all the circumstances. When trial is by military judge without members, the military judge shall determine the appropriate weight to give the statement.
(3) Derivative evidence. Evidence that is challenged under this rule as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence either that the statement was made voluntarily or that the evidence was not obtained by use of the statement.
(f) Defense evidence. The defense may present evidence relevant to the admissibility of evidence as to which there has been an objection or motion to suppress under this rule. An accused may testify for the limited purpose of denying that the accused made the statement or that the statement was made voluntarily. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.
(g) Corroboration. An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth. Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence. Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.
(1) Quantum of evidence needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.
(2) Procedure. The military judge alone shall determine when adequate evidence of corroboration has been received. Corroborating evidence usually is to be introduced before the admission or confession is introduced but the military judge may admit evidence subject to later corroboration.
(h) Miscellaneous. (1) Oral statements. A voluntary oral confession or admission of the accused may be proved by the testimony of anyone who heard the accused make it, even if it was reduced to writing and the writing is not accounted for.
(2) Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.
(3) Certain admissions by silence. A person's failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation.
Rule 305. Warnings About Rights (a) General rule. A statement obtained in violation of this rule is involuntary and shall be treated under rule 304.
(b) Definitions. As used in this rule:
(1) Person subject to the Uniform Code of Military Justice. A "person subject to the Uniform Code of Military Justice" includes a person acting as a knowing agent of a military unit or of a person subject to the Uniform Code of Military Justice.
(2) Interrogation. " Interrogation" includes any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.
(c) Warnings concerning the accusation, right to remain silent, and use of statements. A person subject to the Uniform Code of Military Justice who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first: (1) informing the accused or suspect of the nature of the accusation; (2) advising the accused or suspect that the accused or suspect has the right to remain silent; and (3) advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.
(d) Counsel rights and warnings.
(1) General rule. When evidence of a testimonial communicative nature within the meaning of the Fifth Amendment to the Constitution of the United States either is sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an offense is entitled to consult with counsel as provided by paragraph (2) of this subdivision, to have such counsel present at the interrogation, and to be warned of these rights prior to the interrogation if--
(A) The interrogation is conducted by a person subject to the Uniform Code of Military Justice who is required to give warnings under Article 31 and the accused or suspect is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way; or
(B) The interrogation is conducted by a person subject to the Uniform Code of Military Justice acting in a law enforcement capacity, or an agent of such a person, the interrogation is conducted subsequent to preferral of charges or the imposition of pretrial restraint under paragraph 20 of this Manual, and the interrogation concerns the offenses or matters that were the subject of the preferral of charges or were the cause of the imposition of pretrial restraint.
(2) Counsel. When a person entitled to counsel under this rule requests counsel, a judge advocate or law specialist within the meaning of Article 1 or an individual certified in accordance with Article 27(b) shall be provided by the United States at no expense to the person and without regard to the person's indigency or lack thereof before the interrogation may proceed. In addition to counsel supplied by the United States, the person may retain civilian counsel at no expense to the United States. Unless otherwise provided by regulations of the Secretary concerned, an accused or suspect does not have a right under this rule to have military counsel of his or her own selection.
(e) Notice to Counsel. When a person subject to the Uniform Code of Military Justice who is required to give warnings under subdivision (c) intends to question an accused or person suspected of an offense and knows or reasonably should know that counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the counsel must be notified of the intended interrogation and given a reasonable time in which to attend before the interrogation may proceed.
(f) Exercise of rights. If a person chooses to exercise the privilege against self-incrimination or the right to counsel under this rule, questioning must cease immediately.
(g) Waiver. (1) General rule. After receiving applicable warnings under this rule, a person may waive the rights described therein and in rule 301 and make a statement. The waiver must be made freely, knowingly, and intelligently. A written waiver is not required. The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement.
(2) Counsel. If the right to counsel in subdivision (d) is applicable and the accused or suspect does not decline affirmatively the right to counsel, the prosecution must demonstrate by a preponderance of the evidence that the individual waived the right to counsel. In addition, if the notice to counsel in subdivision (e) is applicable, a waiver of the right to counsel is not effective unless the prosecution demonstrates by a preponderance of the evidence that reasonable efforts to notify the counsel were unavailing or that the counsel did not attend an interrogation scheduled within a reasonable period of time after the required notice was given.
(h) Nonmilitary interrogations. (1) General rule. When a person subject to the Uniform Code of Military Justice is interrogated by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, and such official or agent is not required to give warnings under subdivision (c), the person's entitlement to rights warnings and the validity of any waiver of applicable rights shall be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar interrogations.
(2) Foreign interrogations. Neither warnings under subdivisions (c) or (d), nor notice to counsel under subdivision (e) are required during an interrogation conducted abroad by officials of a foreign government or their agents unless such interrogation is conducted, instigated, or participated in by military personnel or their agents or by those officials or agents listed in subdivision (h)(1). A statement obtained during such an interrogation is involuntary within the meaning of rule 304(b)(3) if it is obtained through the use of coercion, unlawful influence, or unlawful inducement. An interrogation is not "participated in" by military personnel or their agents or by the officials or agents listed in subdivision (h)(1) merely because they were present at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because they took steps to mitigate damage to property or physical harm during the foreign interrogation. Rule 306. Statements by One of Several Accused When two or more accused are tried at the same trial, evidence of a statement made by one of them which is admissible only against him or her or only against some but not all of the accused may not be received in evidence unless all references inculpating an accused against whom the statement is inadmissible are deleted effectively or the maker of the statement is subject to cross-examination. Rule 311. Evidence Obtained From Unlawful Searches and Seizures
(a) General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:
(1) Objection. The accused makes a timely motion to suppress or an objection to the evidence under this rule; and
(2) Adequate interest. The accused had a reasonable expectation of privacy in the person, place or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the armed forces.
(b) Exception. Evidence that was obtained as a result of an unlawful search or seizure may be used to impeach by contradiction the in-court testimony of the accused.
(c) Nature of search or seizure. A search or seizure is "unlawful" if it was conducted, instigated, or participated in by:
(1) Military personnel. Military personnel or their agents and was in violation of the Constitution of the United States as applied to members of the armed forces, an Act of Congress applicable to trials by court-martial that requires exclusion of evidence obtained in violation thereof, or rules 312 - 317;
(2) Other officials. Other officials or agents of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States or any political subdivision of such a State, Commonwealth, or possession and was in violation of the Constitution of the United States, or is unlawful under the principles of law generally applied in the trial of criminal cases in the United States district courts involving a similar search or seizure; or
(3) Officials of a foreign government. Officials of a foreign government or their agents and was obtained as a result of a foreign search or seizure which subjected the accused to gross and brutal maltreatment.
A search or seizure is not "participated in" merely because a person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.
(d) Motions to suppress and objections. (1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence seized from the person or property of the accused, or believed to be owned by the accused, that it intends to offer into evidence against the accused at trial.
(2) Motion or objection. (A) When evidence has been disclosed under subdivision (d)(1), any motion to suppress or objection under this rule shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion or objection.
(B) If the prosecution intends to offer evidence seized from the person or property of the accused that was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interest of justice.
(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion to suppress or objection under this rule shall be made in accordance with the procedure for challenging evidence under (A). If such evidence has not been so disclosed prior to arraignment, the requirements of (B) apply.
(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the search or seizure, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.
(4) Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the general issue or until after findings, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state essential findings of fact on the record.
(e) Burden of proof. (1) In general. When an appropriate motion or objection has been made by the defense under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that evidence was not obtained as a result of an unlawful search or seizure.
(2) Derivative evidence. Evidence that is challenged under this rule as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure.
(3) Specific motions or objections. When a specific motion or objection has been required under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.
(f) Defense evidence. The defense may present evidence relevant to the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the search or seizure giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.
(g) Scope of motions and objections challenging probable cause. (1)
Generally. If the defense challenges evidence seized pursuant to a search warrant or search authorization on the grounds that the warrant or authorization was not based upon probable cause, the evidence relevant to the motion is limited to evidence concerning the information actually presented to or otherwise known by the authorizing officer, except as provided in paragraph (2).
(2) False statements. If the defense makes a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth in the information presented to the authorizing officer, and if the allegedly false statement is necessary to the finding of probable cause, the defense, upon request, shall be entitled to a hearing. At the hearing, the defense has the burden of establishing by a preponderance of the evidence the allegation of falsity or reckless disregard for the truth. If the defense meets its burden, the prosecution has the burden of proving by a preponderance of the evidence, with the false information set aside, that the remaining information presented to the authorizing officer is sufficient to establish probable cause. If the prosecution does not meet its burden, the objection or motion shall be granted unless the search is otherwise lawful under these rules.
(h) Objections to evidence seized unlawfully. If a defense motion or objection under this rule is sustained in whole or in part, the members may not be informed of that fact except insofar as the military judge must instruct the members to disregard evidence.
(i) Effect of guilty plea. A plea of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of the United States and rules 311 - 317 with respect to that offense whether or not raised prior to plea. Rule
312. Bodily Views and Intrusions
(a) General rule. Evidence obtained from bodily views and intrusions conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.
(b) Visual examination of the body. (1) Consensual. Visual examination of the unclothed body may be made with the consent of the individual subject to the inspection in accordance with rule 314(e).
(2) Involuntary. An involuntary display of the unclothed body including a visual examination of body cavities, may be required only if conducted in reasonable fashion and authorized under the following provisions of these rules: inspections and inventories under rule 313; searches under rules 314(b) and 314(c) if there is a real suspicion that weapons, contraband or evidence of crime is concealed on the body of the person to be searched; searches within jails and similar facilities under rule 314(h) if reasonably necessary to maintain the security of the institution or its personnel; searches incident to lawful apprehension under rule 314(g); emergency searches under rule 314(i); and probable cause searches under rule 315. An examination of the unclothed body under this paragraph should be conducted whenever practicable by a person of the same sex as that of the person being examined; provided, however, that failure to comply with this requirement does not make an examination an unlawful search within the meaning of rule 311.
(c) Intrusion into body cavities. A reasonable nonconsensual physical intrusion into the mouth, nose, and ears may be made when a visual examination of the body under subdivision (b) is permissible. Nonconsensual intrusions into other body cavities may be made:
(1) For purposes of seizure. To remove weapons, contraband, or evidence of crime discovered under subdivisions (b) and (c)(2) of this rule or under rule 316(d)(4)(C) if such intrusion is made in a reasonable fashion by a person with appropriate medical qualifications; or
(2) For purposes of search. To search for weapons, contraband, or evidence of crime; if authorized by a search warrant or search authorization under rule 315 and conducted by a person with appropriate medical qualifications.
Notwithstanding this paragraph, a search under rule 314(h) may be made without a search warrant or authorization if such search is based upon a real suspicion that the individual is concealing weapons, contraband, or evidence of crime.
(d) Seizure of bodily fluids. Nonconsensual extraction of bodily fluids, including blood and urine, may be made from the body of an individual pursuant to a search warrant or a search authorization under rule 315. Nonconsensual extraction of bodily fluids may be made without such warrant or authorization, notwithstanding rule 315(g), only when there is a clear indication that evidence of crime will be found and that there is reason to believe that the delay that would result if a warrant or authorization were sought could result in the destruction of the evidence. Involuntary extraction of bodily fluids under this rule must be done in a reasonable fashion by a person with appropriate medical qualifications.
(e) Other intrusive searches. Nonconsensual intrusive searches of the body made to locate or obtain weapons, contraband, or evidence of crime and not within the scope of subdivisions (b) or (c) may be made only upon search warrant or search authorization under rule 315 and only if such search is conducted in a reasonable fashion by a person with appropriate medical qualifications and does not endanger the health of the person to be searched. Compelling a person to ingest substances for the purposes of locating the property described above or to compel the bodily elimination of such property is a search within the meaning of this section. Notwithstanding this rule, a person who is neither a suspect nor an accused may not be compelled to submit to an intrusive search of the body for the sole purpose of obtaining evidence of crime.
(f) Intrusions for valid medical purposes. Nothing in this rule shall be deemed to interfere with the lawful authority of the armed forces to take whatever action may be necessary to preserve the health of a service member. Evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may be seized and is not evidence obtained from an unlawful search or seizure within the meaning of rule 311.
(g) Medical qualifications. The Secretary concerned may prescribe appropriate medical qualifications for persons who conduct searches and seizures under this rule. Rule 313. Inspections and Inventories in the Armed Forces
(a) General rule. Evidence obtained from inspections and inventories in the armed forces conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.
(b) Inspections. An "inspection" is an examination of the whole or part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at entrance and exit points, conducted as an incident of command the primary purpose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle. An inspection may include but is not limited to an examination to determine and to ensure that any or all of the following requirements are met: that the command is properly equipped, functioning properly, maintaining proper standards of readiness, sea or air-worthiness, sanitation and cleanliness, and that personnel are present, fit, and ready for duty. An inspection also includes an examination to locate and confiscate unlawful weapons and other contraband when such property would affect adversely the security, military fitness, or good order and discipline of the command and when (1) there is a reasonable suspicion that such property is present in the command or (2) the examination is a previously scheduled examination of the command. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection within the meaning of this rule. Inspections shall be conducted in a reasonable fashion and shall comply with rule 312, if applicable. Inspections may utilize any reasonable natural or technological aid and may be conducted with or without notice to those inspected. Unlawful weapons, contraband, or other evidence of crime located during an inspection may be seized.
(c) Inventories. Unlawful weapons, contraband, or other evidence of crime discovered in the process of an inventory, the primary purpose of which is administrative in nature, may be seized. Inventories shall be conducted in a reasonable fashion and shall comply with rule 312, if applicable. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inventory within the meaning of this rule. Rule 314. Searches Not Requiring Probable Cause
(a) General Rule. Evidence obtained from reasonable searches not requiring probable cause conducted pursuant to this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.
(b) Border Searches. Border searches for customs or immigration purposes may be conducted when authorized by Act of Congress.
(c) Searches upon entry to United States installations, aircraft, and vessels abroad. In addition to the authority to conduct inspections under rule 313(b), a commander of a United States military installation, enclave, or aircraft on foreign soil, or in foreign or international airspace, or a United States vessel in foreign or international waters, may authorize appropriate personnel to search persons or the property of such persons upon entry to the installation, enclave, aircraft, or vessel to ensure the security, military fitness or good order and discipline of the command. Such searches may not be conducted at a time or in a manner contrary to an express provision of a treaty or agreement to which the United States is a party. Failure to comply with a treaty or agreement, however, does not render a search unlawful within the meaning of rule 311. A search made for the primary purpose of obtaining evidence for use in a trial by court-martial or other disciplinary proceeding is not authorized by this subdivision.
(d) Searches of government property. Government property may be searched under this rule unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search. Under normal circumstances, a person does not have a reasonable expectation of privacy in government property that is not issued for personal use. Wall or floor lockers in living quarters issued for the purpose of storing personal possessions normally are issued for personal use; but the determination as to whether a person has a reasonable expectation of privacy in government property issued for personal use depends on the facts and circumstances at the time of the search.
(e) Consent searches. (1) General rule. Searches may be conducted of any person or property with lawful consent.
(2) Who may consent. A person may consent to a search of his or her person or property, or both, unless control over such property has been given to another. A person may grant consent to search property when the person exercises control over that property.
(3) Scope of consent. Consent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time.
(4) Voluntariness. To be valid, consent must be given voluntarily. Voluntariness is a question to be determined from all circumstances. Although a person's knowledge of the right to refuse to give consent is a factor to be considered in determining voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Mere submission to the color of authority of personnel performing law enforcement duties or acquiescence in an announced or indicated purpose to search is not a voluntary consent.
(5) Burden of proof. Consent must be shown by clear and convincing evidence. The fact that a person was in custody while granting consent is a factor to be considered in determining the voluntariness of the consent, but it does not affect the burden of proof.
(f) Frisks incident to a lawful stop. (1) Stops. A person authorized to apprehend by paragraph 19a of this Manual and others performing law enforcement duties may stop another person temporarily when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. The purpose of the stop must be investigatory in nature.
(2) Frisks. When a lawful stop is performed, the person stopped may be frisked for weapons when that person is reasonably believed to be armed and presently dangerous. Contraband or evidence located in the process of a lawful frisk may be seized.
(g) Searches incident to a lawful apprehension. (1) General rule. A person who has been lawfully apprehended may be searched.
(2) Search for weapons and destructible evidence. A search may be conducted for weapons or destructible evidence in the area within the immediate control of a person who has been apprehended. The area within the person's "immediate control" is the area which the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain such property.
(3) Examination for other persons. When an apprehension takes place at a location in which other persons reasonably might be present who might interfere with the apprehension or endanger those apprehending, a reasonable examination may be made of the general area in which such other persons might be located.
(h) Searches within jails, confinement facilities, or similar facilities. Searches within jails, confinement facilities, or similar facilities may be authorized by persons with authority over the institution.
(i) Emergency searches to save life or for related purposes. In emergency circumstances to save life or for a related purpose, a search may be conducted of persons or property in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing personal injury.
(j) Searches of open fields or woodlands. A search of open fields or woodlands is not an unlawful search within the meaning of rule 311.
(k) Other searches. A search of a type not otherwise included in this rule and not requiring probable cause under rule 315 may be conducted when permissible under the Constitution of the United States as applied to members of the armed forces. Rule 315. Probable Cause Searches
(a) General rule. Evidence obtained from searches requiring probable cause conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.
(b) Definitions. As used in these rules:
(1) Authorization to search. An "authorization to search" is an express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner.
(2) Search warrant. A "search warrant" is an express permission to search and seize issued by competent civilian authority.
(c) Scope of authorization. A search authorization may be issued under this rule for a search of
(1) Persons. The person of anyone subject to military law or the law of war wherever found;
(2) Military property. Military property of the United States or of nonappropriated fund activities of an armed force of the United States wherever located;
(3) Persons and property within military control. Persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located; or
(4) Nonmilitary property within a foreign country. (A) Property owned, used, occupied by, or in the possession of an agency of the United States other than the Department of Defense when situated in a foreign country. A search of such property may not be conducted without the concurrence of an appropriate representative of the agency concerned. Failure to obtain such concurrence, however, does not render a search unlawful within the meaning of rule 311.
(B) Other property situated in a foreign country.
If the United States is a party to a treaty or agreement that governs a search in a foreign country, the search shall be conducted in accordance with the treaty or agreement. If there is no treaty or agreement, concurrence should be obtained from an appropriate representative of the foreign country with respect to a search under paragraph (4)(B) of this subdivision. Failure to obtain such concurrence or noncompliance with a treaty or agreement, however, does not render a search unlawful within the meaning of rule 311.
(d) Power to authorize. Authorization to search pursuant to this rule may be granted by an impartial individual in the following categories:
(1) Commander. A commanding officer, officer in charge, or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war;
(2) Delegee. An impartial person to whom the authority has been delegated by a person empowered to authorize a search under (1) except insofar as the power to delegate is restricted by the Secretary concerned; or
(3) Military judge. A military judge or magistrate if authorized under regulations prescribed by the Secretary of Defense or the Secretary concerned.
An otherwise impartial authorizing official does not lose that character merely because he or she is present at the scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when such previous authorization is similar in intent or function to a pretrial authorization made by the United States district courts.
(e) Power to search. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security police, military police, or shore patrol, or person designated by proper authority to perform guard or police duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been granted under this rule or a search would otherwise be proper under subdivision (g).
(f) Basis for search authorizations. (1) Probable cause requirement. A search authorization issued under this rule must be based upon probable cause.
(2) Probable cause determination. Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. Before a person may conclude that probable cause to search exists, he or she must first have a reasonable belief that the information giving rise to the intent to search is believable and has a factual basis. A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under this rule shall be based upon any or all of the following:
(1) Written statements communicated to the authorizing officer;
(2) Oral statements communicated to the authorizing official in person, via telephone, or by other appropriate means of communication; or
(3) Such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion.
The Secretary of Defense or the Secretary concerned may prescribe additional requirements.
(g) Exigencies. A search warrant or search authorization is not required under this rule for search based upon probable cause when:
(1) Insufficient time. There is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought;
(2) Lack of communications. There is a reasonable military operational necessity that is reasonably believed to prohibit or prevent communication with a person empowered to grant a search warrant or authorization and there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought;
(3) Search of operable vehicle. An operable vehicle is to be searched, except in circumstances where a search warrant or authorization is required by the Constitution of the United States, this Manual or these rules; or
(4) Not required by Constitution. A search warrant or authorization is not otherwise required by the Constitution of the United States as applied to members of the armed forces.
For purposes of this rule, a vehicle is presumed to be "operable" unless a reasonable person would have known at the time of search that the vehicle was not functional for purposes of transportation.
(h) Execution. (1) Notice. If the person whose property is to be searched is present during a search conducted pursuant to a search authorization granted under this rule, the person conducting the search should when possible notify him or her of the act of authorization and the general substance of the authorization. Such notice may be made prior to or contemporaneously with the search. Failure to provide such notice does not make a search unlawful within the meaning of rule 311.
(2) Inventory. Under regulations prescribed by the Secretary concerned, and with such exceptions as may be authorized by the Secretary, an inventory of the property seized shall be made at the time of a seizure under this rule or as soon as practicable thereafter. At an appropriate time, a copy of the inventory shall be given to a person from whose possession or premises the property was taken. Failure to make an inventory, furnish a copy thereof, or otherwise comply with this paragraph does not render a search or seizure unlawful within the meaning of rule 311.
(3) Foreign searches. Execution of a search authorization outside the United States and within the jurisdiction of a foreign nation should be in conformity with existing agreements between the United States and the foreign nation. Noncompliance with such an agreement does not make an otherwise lawful search unlawful.
(4) Search warrants. The execution of a search warrant affects admissibility only insofar as exclusion of evidence is required by the Constitution of the United States or an applicable Act of Congress.
Rule 316. Seizures
(a) General rule. Evidence obtained from seizures conducted in accordance with this rule is admissible at trial if the evidence was not obtained as a result of an unlawful search and if the evidence is relevant and not otherwise inadmissible under these rules.
(b) Seizure of property. Probable cause to seize property or evidence exists when there is a reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of crime, or might be used to resist apprehension or to escape. Before a person may conclude that probable cause to seize property is present, the person must first have a reasonable belief that the information giving rise to the intent to seize is believable and has a factual basis.
(c) Apprehension. Apprehension is governed by paragraph 19 of this Manual.
(d) Seizure of property or evidence. (1) Abandoned property.
Abandoned property may be seized without probable cause and without a search warrant or search authorization. Such seizure may be made by any person.
(2) Consent. Property or evidence may be seized with consent consistent with the requirements applicable to consensual searches under rule 314.
(3) Government property. Government property may be seized without probable cause and without a search warrant or search authorization by any person listed in subdivision (e), unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein, as provided in Rule 314(d), at the time of the seizure.
(4) Other property. Property or evidence not included in paragraph (1)-(3) may be seized for use in evidence by any person listed in subdivision (e) if:
(A) Authorization. The person is authorized to seize the property or evidence by a search warrant or a search authorization under rule 315;
(B) Exigent circumstances. The person has probable cause to seize the property or evidence and under rule 315(g) a search warrant or search authorization is not required; or
(C) Plain view. The person while in the course of otherwise lawful activity observes in a reasonable fashion property or evidence that the person has probable cause to seize.
(e) Power to seize. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security police, military police, or shore patrol, or individual designated by proper authority to perform guard or police duties, or any agent of any such person, may seize property pursuant to this rule. Rule 317. Interception of Wire and Oral Communications
(a) General rule. Wire or oral communications constitute evidence obtained as a result of an unlawful search or seizure within the meaning of rule 311 when such evidence must be excluded under the Fourth Amendment to the Constitution of the United States as applied to members of the armed forces or if such evidence must be excluded under a statute applicable to members of the armed forces.
(b) Authorization for judicial applications in the United States. Under section 2516(1) of title 18, United States Code, the Attorney General, or any Assistant Attorney General specially designated by the Attorney General may authorize an application to a federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of title 18, United States Code, an order authorizing or approving the interception of wire or oral communications by the Department of Defense, the Department of Transportation, or any Military Department for purposes of enforcing the Uniform Code of Military Justice.
(c) Regulations. Notwithstanding any other provision of these rules, members of the armed forces or their agents may not intercept wire or oral communications for law enforcement purposes except as follows:
(1) in the United States, under subdivision (b); and
(2) outside the United States, under regulations issued by the Secretary of Defense or the Secretary concerned. Rule 321. Eyewitness Identification
(a) General rule. (1) Admissibility. Testimony concerning a relevant out of court identification by any person is admissible, subject to an appropriate objection under this rule, if such testimony is otherwise admissible under these rules. The witness making the identification and any person who has observed the previous identification may testify concerning it. When in testimony a witness identifies the accused as being, or not being, a participant in an offense or makes any other relevant identification concerning a person in the courtroom, evidence that on a previous occasion the witness made a similar identification is admissible to corroborate the witness' testimony as to identity even if the credibility of the witness has not been attacked directly, subject to appropriate objection under this rule.
(2) Exclusionary rule. An identification of the accused as being a participant in an offense, whether such identification is made at the trial or otherwise, is inadmissible against the accused if (A) the accused makes a timely motion to suppress or an objection to the evidence under this rule and if the identification is the result of an unlawful lineup or other unlawful identification process conducted by the United States or other domestic authorities; or (B) exclusion of the evidence is required by the due process clause of the Fifth Amendment to the Constitution of the United States as applied to members of the armed forces. Evidence other than an identification of the accused that is obtained as a result of an unlawful lineup or unlawful identification process is inadmissible against the accused if the accused makes a timely motion to suppress or an objection to the evidence under this rule and if exclusion of the evidence is required under the Constitution of the United States as applied to members of the armed forces.
(b) Definition of "unlawful". (1) Lineups and other identification processes. A lineup or other identification process is "unlawful" if it is (A) conducted by persons subject to the Uniform Code of Military Justice or their agents and is unnecessarily suggestive or otherwise in violation of the due process clause of the Fifth Amendment to the Constitution of the United States as applied to members of the armed forces; or (B) conducted by other authorities of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession and is unnecessarily suggestive or otherwise in violation of the due process clause of the Fifth Amendment to the Constitution of the United States.
(2) Lineups: right to counsel. A lineup is "unlawful" if it is conducted in violation of the following rights to counsel:
(A) Military lineups. An accused or suspect is entitled to counsel if, after preferral of charges or imposition of pretrial restraint under paragraph 20 of this Manual for the offense under investigation, the accused is subjected by persons subject to the Uniform Code of Military Justice or their agents to a lineup for the purpose of identification. When a person entitled to counsel under this rule requests counsel, a judge advocate or law specialist within the meaning of Article 1 or a person certified in accordance with Article 27(b) shall be provided by the United States at no expense to the accused or suspect and without regard to indigency or lack thereof before the lineup may proceed. The accused or suspect may waive the rights provided in this rule if the waiver is freely, knowingly, and intelligently made.
(B) Nonmilitary lineups. When a person subject to the Uniform Code of Military Justice is subjected to a lineup for purposes of identification by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, and the provisions of paragraph (1) do not apply, the person's entitlement to counsel and the validity of any waiver of applicable rights shall be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar lineups.
(c) Motions to suppress and objections. (1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence of a prior identification of the accused at a lineup or other identification process that it intends to offer into evidence against the accused at trial.
(2) Motion or objection. (A) When such evidence has been disclosed, any motion to suppress or objection under this rule shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move constitutes a waiver of the motion or objection.
(B) If the prosecution intends to offer such evidence and the evidence was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interests of justice.
(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion to suppress or objection under this rule shall be made in accordance with the procedure for challenging evidence under (A). If such evidence has not been so disclosed prior to arraignment, the requirements of (B) apply.
(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the lineup or other identification process, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.
(d) Burden of proof. When a specific motion or objection has been required under subdivision (c)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence. When an appropriate objection under this rule has been made by the defense, the issue shall be determined by the military judge as follows:
(1) Right to counsel. When an objection raises the right to presence of counsel under this rule, the prosecution must prove by a preponderance of the evidence that counsel was present at the lineup or that the accused, having been advised of the right to the presence of counsel, voluntarily and intelligently waived that right prior to the lineup. When the military judge determines that an identification is the result of a lineup conducted without the presence of counsel or an appropriate waiver, any later identification by one present at such unlawful lineup is also a result thereof unless the military judge determines that the contrary has been shown by clear and convincing evidence.
(2) Unnecessarily suggestive identification. When an objection raises the issues of an unnecessarily suggestive identification process or other violation of due process under this rule, the prosecution must prove by a preponderance of the evidence that the lineup or other identification process was not so unnecessarily suggestive, in light of the totality of the circumstances, as to create a very substantial likelihood of irreparable mistaken identity; provided, however, that if the military judge determines that the identification process, although unnecessarily suggestive, did not create a very substantial likelihood of irreparable mistaken identity, a later identification may be admitted into evidence if the government proves by clear and convincing evidence that the subsequent identification is not the result of the improper identification.
(e) Defense evidence. The defense may present evidence relevant to the issue of the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the lineup or identification process giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.
(f) Rulings. A motion to suppress or an objection to evidence made prior to plea under this rule shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the general issue or until after findings, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state his or her essential findings of fact on the record.
(g) Effect of guilty pleas. A plea of guilty to an offense that results in a finding of guilty waives all issues under this rule with respect to that offense whether or not raised prior to the plea.
SECTION IV. RELEVANCY AND ITS LIMITS
Rule 401. Definition of " Relevant Evidence"
" Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States as applied to members of the armed forces, the Uniform Code of Military Justice, these rules, this Manual, or any Act of Congress applicable to members of the armed forces. Evidence which is not relevant is not admissible. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally. Evidence of a person's character or a trait of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(1) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide or assault case to rebut evidence that the victim was an aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 405. Methods of Proving Character
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of an offense or defense, proof may also be made of specific instances of the person's conduct.
(c) Affidavits. The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.
(d) Definitions. " Reputation" means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. " Community" in the armed forces includes a post, camp, ship, station, or other military organization regardless of size. Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitness, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Rule 407. Subsequent Remedial Measures
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Rule 408.
Compromise and Offer to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purposes, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Rule 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to any of the foregoing pleas or offers, is not admissible in any court-martial proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a court-martial proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel. An "offer to plead guilty" includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; "on the record" includes the written statement submitted by the accused in furtherance of such request. Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. Rule 412. Nonconsensual Sexual Offenses; Relevance of Victim's Past Behavior
(a) Notwithstanding any other provision of these rules or this Manual, in a case in which a person is accused of a nonconsensual sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged victim of such nonconsensual sexual offense is not admissible.
(b) Notwithstanding any other provision of these rules or this Manual, in a case in which a person is accused of a nonconsensual sexual offense, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is--
(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or
(2) admitted in accordance with subdivision (c) and is evidence of--
(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or
(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which the nonconsensual sexual offense is alleged.
(c)(1) If the person accused of committing a nonconsensual sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior, the accused shall serve notice thereof on the military judge and the trial counsel.
(2) The notice described in paragraph (1) shall be accompanied by an offer of proof. If the military judge determines that the offer of proof contains evidence described in subdivision (b), the military judge shall conduct a hearing, which may be closed, to determine if such evidence is admissible. At such hearings the parties may call witnesses, including the alleged victim, and offer relevant evidence. In a case before a court-martial composed of a military judge and members, the military judge shall conduct such hearings outside the presence of the members pursuant to Article 39(a).
(3) If the military judge determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the military judge specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.
(d) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which a nonconsensual sexual offense is alleged.
(e) A "nonconsensual sexual offense" is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempts to commit such offenses.
SECTION V. PRIVILEGES
Rule 501. General Rule
(a) A person may not claim a privilege with respect to any matter except as required by or provided for in:
(1) The Constitution of the United States as applied to members of the armed forces;
(2) An Act of Congress applicable to trials by courts-martial;
(3) These rules or this Manual; or
(4) The principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the Uniform Code of Military Justice, these rules, or this Manual.
(b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:
(1) Refuse to be a witness;
(2) Refuse to disclose any matter;
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
(c) The term "person" includes an appropriate representative of the federal government, a State, or political subdivision thereof, or any other entity claiming to be the holder of a privilege.
(d) Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity. Rule 502. Lawyer-Client Privilege
(a) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or the client's representative and the lawyer or the lawyer's representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's lawyer to a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.
(b) Definitions. As used in this rule:
(1) A "client" is a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.
(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the armed forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding. The term "lawyer" does not include a member of the armed forces serving in a capacity other than as a judge advocate, legal officer, or law specialist as defined in Article 1, unless the member: (a) is detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding; (b) is authorized by the armed forces, or reasonably believed by the client to be authorized, to render professional legal services to members of the armed forces; or (c) is authorized to practice law and renders professional legal services during off-duty employment.
(3) A "representative" of a lawyer is a person employed by or assigned to assist a lawyer in providing professional legal services.
(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(c) Who may claim the privilege. The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary. (d) Exceptions. There is no privilege under this rule under the following circumstances:
(1) Crime or fraud. If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;
(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients. Rule 503.
Communications to Clergy
(a) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience.
(b) Definitions. As used in this rule:
(1) A "clergyman" is a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.
(2) A communication is "confidential" if made to a clergyman in the clergyman's capacity as a spiritual adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.
(c) Who may claim the privilege. The privilege may be claimed by the person, by the guardian or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's assistant to do so is presumed in the absence of evidence to the contrary. Rule 504.
Husband-Wife Privilege
(a) Spousal incapacity. A person has a privilege to refuse to testify against his or her spouse.
(b) Confidential communication made during marriage.
(1) General rule of privilege. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law.
(2) Definition. A communication is "confidential" if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.
(3) Who may claim the privilege. The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.
(c) Exceptions. (1) Spousal Incapacity Only. There is no privilege under subdivision (a) when, at the time the testimony of one of the parties to the marriage is to be introduced in evidence against the other party, the parties are divorced or the marriage has been annulled.
(2) Spousal incapacity and confidential communications. There is no privilege under subdivisions (a) or (b):
(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;
(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or
(C) In proceedings in which a spouse is charged, in accordance with Articles 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of section 1328 of title 8, United States Code; with transporting the other spouse in interstate commerce for immoral purposes or other offense in violation of sections 2421 - 2424 of title 18, United States Code; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts. Rule 505. Classified Information
(a) General rule of privilege. Classified information is privileged from disclosure if disclosure would be detrimental to the national security.
(b) Definitions. As used in this rule:
(1) Classified information. " Classified information" means any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in section 2014(y) of title 42, United States Code.
(2) National security. " National security" means the national defense and foreign relations of the United States.
(c) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department or government agency concerned based on a finding that the information is properly classified and that disclosure would be detrimental to the national security. A person who may claim the privilege may authorize a witness or trial counsel to claim the privilege on his or her behalf. The authority of the witness or trial counsel to do so is presumed in the absence of evidence to the contrary.
(d) Action prior to referral of charges. Prior to referral of charges, the convening authority shall respond in writing to a request by the accused for classified information if the privilege in this rule is claimed for such information. The convening authority may:
(1) Delete specified items of classified information from documents made available to the accused;
(2) Substitute a portion or summary of the information for such classified documents;
(3) Substitute a statement admitting relevant facts that the classified information would tend to prove;
(4) Provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or
(5) Withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage to the national security.
Any objection by the accused to withholding of information or to the conditions of disclosure shall be raised through a motion for appropriate relief at a pretrial session.
(e) Pretrial session. At any time after referral of charges and prior to arraignment, any party may move for a session under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such motion or sua sponte, the military judge promptly shall hold a session under Article 39(a) to establish the timing of requests for discovery, the provision of notice under subdivision (h), and the initiation of the procedure under subdivision (i). In addition, the military judge may consider any other matters that relate to classified information or that may promote a fair and expeditious trial.
(f) Action after referral of charges. If a claim of privilege has been made under this rule with respect to classified information that apparently contains evidence that is relevant and material to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter shall be reported to the convening authority. The convening authority may:
(1) institute action to obtain the classified information for use by the military judge in making a determination under subdivision (i);
(2) dismiss the charges;
(3) dismiss the charge or specifications or both to which the information relates; or
(4) take such other action as may be required in the interests of justice.
If, after a reasonable period of time, the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge shall dismiss the charges or specifications or both to which the classified information relates.
(g) Disclosure of classified information to the accused. (1) Protective order. If the government agrees to disclose classified information to the accused, the military judge, at the request of the government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused. The terms of any such protective order may include provisions:
(A) Prohibiting the disclosure of the information except as authorized by the military judge;
(B) Requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;
(C) Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;
(D) Requiring appropriate security clearances for persons having a need to examine the information in connection with the preparation of the defense;
(E) Requiring the maintenance of logs regarding access by all persons authorized by the military judge to have access to the classified information in connection with the preparation of the defense;
(F) Regulating the making and handling of notes taken from material containing classified information; or
(G) Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.
(2) Limited disclosure. The military judge, upon motion of the government, shall authorize (A) the deletion of specified items of classified information from documents to be made available to the defendant, (B) the substitution of a portion or summary of the information for such classified documents, or (C) the substitution of a statement admitting relevant facts that the classified information would tend to prove, unless the military judge determines that disclosure of the classified information itself is necessary to enable the accused to prepare for trial. The government's motion and any materials submitted in support thereof shall, upon request of the government, be considered by the military judge in camera and shall not be disclosed to the accused.
(3) Disclosure at trial of certain statements previously made by a witness.
(A) Scope. After a witness called by the government has testified on direct examination, the military judge, on motion of the accused, may order production of statements in the possession of the United States under section 3500(b) of title 18, United States Code. This provision does not preclude discovery or assertion of a privilege otherwise authorized under these rules or this Manual.
(B) Closed session. If the privilege in this rule is invoked during consideration of a motion under section 3500 of title 18, United States Code, the government may deliver such statement for the inspection only by the military judge in camera and may provide the military judge with an affidavit identifying the portions of the statement that are classified and the basis for the classification assigned. If the military judge finds that disclosure of any portion of the statement identified by the government as classified could reasonably be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute, or regulation and that such portion of the statement is consistent with the witness' testimony, the military judge shall excise the portion from the statement. With such material excised, the military judge shall then direct delivery of such statement to the accused for use by the accused. If the military judge finds that such portion of the statement is inconsistent with the witness' testimony, the government may move for a proceeding under subdivision (i).
(4) Record of trial. If, under this subdivision, any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the government's motion and any materials submitted in support thereof shall be sealed and attached to the record of trial as an appellate exhibit. Such material shall be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.
(h) Notice of the accused's intention to disclose classified information. (1) Notice by the accused. If the accused reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with a court-martial proceeding, the accused shall notify the trial counsel in writing of such intention and file a copy of such notice with the military judge. Such notice shall be given within the time specified by the military judge under subdivision (e) or, if no time has been specified, prior to arraignment of the accused.
(2) Continuing duty to notify. Whenever the accused learns of classified information not covered by a notice under (1) that the accused reasonably expects to disclose at any such proceeding, the accused shall notify the trial counsel and the military judge in writing as soon as possible thereafter.
(3) Content of notice. The notice required by this subdivision shall include a brief description of the classified information.
(4) Prohibition against disclosure. The accused may not disclose any information known or believed to be classified until notice has been given under this subdivision and until the government has been afforded a reasonable opportunity to seek a determination under subdivision (i).
(5) Failure to comply. If the accused fails to comply with the requirements of this subdivision, the military judge may preclude disclosure of any classified information not made the subject of notification and may prohibit the examination by the accused of any witness with respect to any such information.
(i) In camera proceedings for cases involving classified information.
(1) Definition. For purposes of this subdivision, an "in camera proceeding" is a session under Article 39(a) from which the public is excluded.
(2) Motion for in camera proceeding. Within the time specified by the military judge for the filing of a motion under this rule, the government may move for an in camera proceeding concerning the use at any proceeding of any classified information. Thereafter, either prior to or during trial, the military judge for good cause shown or otherwise upon a claim of privilege under this rule may grant the government leave to move for an in camera proceeding concerning the use of additional classified information.
(3) Demonstration of national security nature of the information. In order to obtain an in camera proceeding under this rule, the government shall submit the classified information for examination only by the military judge and shall demonstrate by affidavit that disclosure of the information reasonably could be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute, or regulation.
(4) In camera proceeding. (A) Procedure. Upon finding that the government has met the standard set forth in subdivision (i)(3) with respect to some or all of the classified information at issue, the military judge shall conduct an in camera proceeding. Prior to the in camera proceeding, the government shall provide the accused with notice of the information that will be at issue. This notice shall identify the classified information that will be at issue whenever that information previously has been made available to the accused in connection with proceedings in the same case. The government may describe the information by generic category, in such form as the military judge may approve, rather than identifying the classified information when the government has not previously made the information available to the accused in connection with pretrial proceedings. Following briefing and argument by the parties in the in camera proceeding the military judge shall determine whether the information may be disclosed at the court-martial proceeding. Where the government's motion under this subdivision is filed prior to the proceeding at which disclosure is sought, the military judge shall rule prior to the commencement of the relevant proceeding.
(B) Standard. Classified information is not subject to disclosure under this subdivision unless the information is relevant and material to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence.
(C) Ruling. Unless the military judge makes a written determination that the information meets the standard set forth in (B), the information may not be disclosed or otherwise elicited at a court-martial proceeding. The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit. The accused may seek reconsideration of the determination prior to or during trial.
(D) Alternatives to full disclosure. If the military judge makes a determination under this subdivision that would permit disclosure of the information or if the government elects not to contest the relevance, materiality, and admissibility of any classified information, the government may proffer a statement admitting for purposes of the proceeding any relevant facts such information would tend to prove or may submit a portion or summary to be used in lieu of the information. The military judge shall order that such statement, portion, or summary be used by the accused in place of the classified information unless the military judge finds that use of the classified information itself is necessary to afford the accused a fair trial.
(E) Sanctions. If the military judge determines that alternatives to full disclosure may not be used and the government continues to object to disclosure of the information, the military judge shall issue any order that the interests of justice require. Such an order may include an order:
(i) striking or precluding all or part of the testimony of a witness; (ii) declaring a mistrial; (iii) finding against the government on any issue as to which the evidence is relevant and material to the defense; (iv) dismissing the charges, with or without prejudice; or (v) dismissing the charges or specifications or both to which the information relates.
Any such order shall permit the government to avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.
(j) Introduction of classified information. (1) Classification status. Writings, recordings, and photographs containing classified information may be admitted into evidence without change in their classification status.
(2) Precautions by the military judge. In order to prevent unnecessary disclosure of classified information, the military judge may order admission into evidence of only part of a writing, recording, or photograph or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information contained therein.
(3) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of a writing, recording, or photograph that contains classified information without requiring introduction into evidence of the original or a duplicate.
(4) Taking of testimony. During the examination of a witness, the government may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be relevant and material to the defense. Following such an objection, the military judge shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. Such action may include requiring the government to provide the military judge with a proffer of the witness' response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information the accused seeks to elicit.
(5) Closed session. If counsel for all parties, the military judge, and the members have received appropriate security clearances, the military judge may exclude the public during that portion of the testimony of a witness that discloses classified information.
(6) Record of trial. The record of trial with respect to any classified matter will be prepared under paragraph 82d of this Manual.
(k) Security procedures to safeguard against compromise of classified information disclosed to courts-martial. The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities. Rule 506. Government Information Other Than Classified Information
(a) General rule of privilege. Except where disclosure is required by an Act of Congress, government information is privileged from disclosure if disclosure would be detrimental to the public interest.
(b) Scope. " Government information" includes official communications and documents and other information within the custody or control of the federal government. This rule does not apply to classified information (rule 505) or to the identity of an informant (rule 507).
(c) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department or government agency concerned. The privilege for investigations of the Inspectors General may be claimed by the authority ordering the investigation or any superior authority. A person who may claim the privilege may authorize a witness or the trial counsel to claim the privilege on his or her behalf. The authority of a witness or the trial counsel to do so is presumed in the absence of evidence to the contrary.
(d) Action prior to referral of charges. Prior to referral of charges, the government shall respond in writing to a request for government information if the privilege in this rule is claimed for such information. The government shall:
(1) delete specified items of government information claimed to be privileged from documents made available to the accused;
(2) substitute a portion or summary of the information for such documents;
(3) substitute a statement admitting relevant facts that the government information would tend to prove;
(4) provide the document subject to conditions similar to those set forth in subdivision (g) of this rule; or
(5) withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage to the public interest.
(e) Action after referral of charges. After referral of charges, if a claim of privilege has been made under this rule with respect to government information that apparently contains evidence that is relevant and material to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter shall be reported to the convening authority. The convening authority may:
(1) institute action to obtain the information for use by the military judge in making a determination under subdivision (i);
(2) dismiss the charges;
(3) dismiss the charges or specifications or both to which the information relates; or
(4) take other action as may be required in the interests of justice.
If, after a reasonable period of time, the information is not provided to the military judge, the military judge shall dismiss the charges or specifications or both to which the information relates.
(f) Pretrial session. At any time after referral of charges and prior to arraignment any party may move for a session under Article 39(a) to consider matters relating to government information that may arise in connection with the trial. Following such motion, or sua sponte, the military judge promptly shall hold a pretrial session under Article 39(a) to establish the timing of requests for discovery, the provision of notice under subdivision (h), and the initiation of the procedure under subdivision (i). In addition, the military judge may consider any other matters that relate to classified information or that may promote a fair and expeditious trial.
(g) Disclosure of government information to the accused. If the government agrees to disclose government information to the accused subsequent to a claim of privilege under this rule, the military judge, at the request of the government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused. The terms of any such protective order may include provisions:
(1) Prohibiting the disclosure of the information except as authorized by the military judge;
(2) Requiring storage of the material in a manner appropriate for the nature of the material to be disclosed;
(3) Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;
(4) Requiring the maintenance of logs recording access by persons authorized by the military judge to have access to the government information in connection with the preparation of the defense;
(5) Regulating the making and handling of notes taken from material containing government information; or
(6) Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.
(h) Prohibition against disclosure. The accused may not disclose any information known or believed to be subject to a claim of privilege under this rule until the government has been afforded a reasonable opportunity to seek a determination under subdivision (i).
(i) In camera proceedings. (1) Definition. For purposes of this subdivision, an "in camera proceeding" is a closed session under Article 39(a).
(2) Motion for in camera proceeding. Within the time specified by the military judge for the filing of a motion under this rule, the government may move for an in camera proceeding concerning the use at any proceeding of any government information that may be subject to a claim of privilege. Thereafter, either prior to or during trial, the military judge for good cause shown or otherwise upon a claim of privilege may grant the government leave to move for an in camera proceeding concerning the use of additional government information.
(3) Demonstration of public interest nature of the information. In order to obtain an in camera proceeding under this rule, the government shall demonstrate through submission of affidavits and the information for examination only by the military judge that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest.
(4) In camera proceeding. (A) Procedure. Upon finding that the disclosure of some or all of the information submitted by the government under subsection (1) reasonably could be expected to cause identifiable damage to the public interest, the military judge shall conduct an in camera proceeding. Prior to the in camera proceeding, the government shall provide the accused with notice of the information that will be at issue. This notice shall identify the information that will be at issue whenever that information previously has been made available to the accused in connection with proceedings in the same case. The government may describe the information by generic category, in such form as the military judge may approve, rather than identifying the specific information of concern to the government when the government has not previously made the information available to the accused in connection with pretrial proceedings. Following briefing and argument by the parties in the in camera proceeding, the military judge shall determine whether the information may be disclosed at the court-martial proceeding. When the government's motion under this subdivision is filed prior to the proceeding at which disclosure is sought, the military judge shall rule prior to commencement of the relevant proceeding.
(B) Standard. Government information is subject to disclosure under this subdivision if the party making the request demonstrates a specific need for information containing evidence that is relevant to the guilt or innocence of the accused and otherwise admissible in the court-martial proceeding.
(C) Ruling. Unless the military judge makes a written determination that the information is not subject to disclosure under the standard set forth in (B) the information may be disclosed at the court-martial proceeding. The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit. The accused may seek reconsideration of the determination prior to or during trial.
(D) Sanction. If the military judge makes a determination under this subdivision that permits disclosure of the information and the government continues to object to disclosure of the information, the military judge shall dismiss the charges or specifications or both to which the information relates.
(j) Introduction of government information subject to a claim of privilege. (1) Precautions by military judge. In order to prevent unnecessary disclosure of government information after there has been a claim of privilege under this rule, the military judge may order admission into evidence of only part of a writing, recording, or photograph or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the government information contained therein.
(2) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of a writing, recording, or photograph that contains government information that is the subject of a claim of privilege under this rule without requiring introduction into evidence of the original or a duplicate.
(3) Taking of testimony. During examination of a witness, the prosecution may object to any question or line of inquiry that may require the witness to disclose government information not previously found relevant and material to the defense if such information has been or is reasonably likely to be the subject of a claim of privilege under this rule. Following such an objection, the military judge shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any government information. Such action may include requiring the government to provide the military judge with a proffer of the witness' response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information the accused seeks to elicit.
(k) Procedures to safeguard against compromise of government information disclosed to courts-martial. The Secretary of Defense may prescribe procedures for protection against the compromise of government information submitted to courts-martial and appellate authorities after a claim of privilege. Rule 507. Identity of Informant
(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of an informant. An "informant" is a person who has furnished information resulting in an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, or prosecution of crime. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant's identity.
(b) Who may claim the privilege. The privilege may be claimed by an appropriate representative of the United States, regardless of whether the information was furnished to an officer of the United States or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except the privilege shall not be allowed if the prosecution objects.
(c) Exceptions. (1) Voluntary disclosures; informant as witness. No privilege exists under this rule: (A) if the identity of the informant has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informant's own action; or (B) if the informant appears as a witness for the prosecution.
(2) Testimony on the issue of guilt or innocence. If a claim of privilege has been made under this rule, the military judge shall, upon motion by the accused, determine whether disclosure of the identity of the informant is necessary to the accused's defense on the issue of guilt or innocence. Whether such a necessity exists will depend on the particular circumstances of each case, taking into consideration the offense charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors. If it appears from the evidence in the case or from other showing by a party that an informant may be able to give testimony necessary to the accused's defense on the issue of guilt or innocence, the military judge may make any order required by the interests of justice.
(3) Legality of obtaining evidence. If a claim of privilege has been made under this rule with respect to a motion under rule 311, the military judge shall, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the Constitution of the United States as applied to members of the armed forces. In making this determination, the military judge may make any order required by the interests of justice.
(d) Procedures. If a claim of privilege has been made under this rule, the military judge may make any order required by the interests of justice. If the military judge determines that disclosure of the identity of the informant is required under the standards set forth in this rule, and the prosecution elects not to disclose the identity of the informant, the matter shall be reported to the convening authority. The convening authority may institute action to secure disclosure of the identity of the informant, terminate the proceedings, or take such other action as may be appropriate under the circumstances. If, after a reasonable period of time disclosure is not made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either party, may dismiss the charges or specifications or both to which the information regarding the informant would relate if the military judge determines that further proceedings would materially prejudice a substantial right of the accused. Rule 508. Political Vote
A person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally. Rule 509. Deliberations of Courts and Juries
Except as provided in rule 606, the deliberations of courts and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged. Rule 510. Waiver of Privilege by Voluntary Disclosure
(a) A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege. This rule does not apply if the disclosure is itself a privileged communication.
(b) Unless testifying voluntarily concerning a privileged matter or communication, an accused who testifies in his or her own behalf or a person who testifies under a grant or promise of immunity does not, merely by reason of testifying, waive a privilege to which he or she may be entitled pertaining to the confidential matter or communication. Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege
(a) Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege.
(b) The telephonic transmission of information otherwise privileged under these rules does not affect its privileged character. Use of electronic means of communication other than the telephone for transmission of information otherwise privileged under these rules does not affect the privileged character of such information if use of such means of communication is necessary and in furtherance of the communication. Rule 512. Comment Upon or Inference from Claim of Privilege; Instruction
(a) Comment or inference not permitted. (1) The claim of a privilege by the accused whether in the present proceeding or upon a prior occasion is not a proper subject of comment by the military judge or counsel for any party. No inference may be drawn therefrom. (2) The claim of a privilege by a person other than the accused whether in the present proceeding or upon a prior occasion normally is not a proper subject of comment by the military judge or counsel for any party. An adverse inference may not be drawn therefrom except when determined by the military judge to be required by the interests of justice.
(b) Claiming privilege without knowledge of members. In a trial before a court-martial with members, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the members. This subdivision does not apply to a special court-martial without a military judge.
(c) Instruction. Upon request, any party against whom the members might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom except as provided in subdivision (a)(2). SECTION VI. WITNESSES Rule 601.
General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so. Rule 604. Interpreters
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation. Rule 605. Competency of Military Judge as Witness
(a) The military judge presiding at the court-martial may not testify in that court-martial as a witness. No objection need be made to preserve the point.
(b) This rule does not preclude the military judge from placing on the record matters concerning docketing of the case. Rule 606. Competency of Court Member as Witness
(a) At the court-martial. A member of the court-martial may not testify as a witness before the other members in the trial of the case in which the member is sitting. If the member is called to testify, the opposing party, except in a special court-martial without a military judge, shall be afforded an opportunity to object out of the presence of the members.
(b) Inquiry into validity of findings or sentence. Upon an inquiry into the validity of the findings or sentence, a member may not testify as to any matter or statement occurring during the course of the deliberations of the members of the court-martial or to the effect of anything upon the member's or any other member's mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member's mental process in connection therewith, except that a member may testify on the question whether extraneous prejudicial information was improperly brought to the attention of the members of the court-martial, whether any outside influence was improperly brought to bear upon any member, or whether there was unlawful command influence. Nor may the member's affidavit or evidence of any statement by the member concerning a matter about which the member would be precluded from testifying be received for these purposes. Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness. Rule 608. Evidence of Character, Conduct, and Bias of Witness
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the military judge, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning character of the witness for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by another witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to credibility.
(c) Evidence of bias. Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced. Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death, dishonorable discharge, or imprisonment in excess of one year under the law under which the witness was convicted, and the military judge determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused, or (2) involved dishonesty or false statement, regardless of the punishment. In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death, dishonorable discharge, or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The military judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the military judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible except that a conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of impeachment until review has been completed pursuant to Article 65(c) or Article 66 if applicable. Evidence of the pendency of an appeal is admissible.
(f) Definition. For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has been adjudged. Rule 610.
Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the credibility of the witness is impaired or enhanced.
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by the military judge. The military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The military judge may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness or a witness identified with an adverse party, interrogation may be by leading questions.
Rule 612. Writing Used to Refresh Memory
If a witness uses a writing to refresh his or her memory for the purpose of testifying, either
(1) while testifying, or
(2) before testifying, if the military judge determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains privileged information or matters not related to the subject matter of the testimony, the military judge shall examine the writing in camera, excise any privileged information or any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be attached to the record of trial as an appellate exhibit. If a writing is not produced or delivered pursuant to order under this rule, the military judge shall make any order justice requires, except that when the prosecution elects not to comply, the order shall be one striking the testimony or, if in discretion of the military judge it is determined that the interests of justice so require, declaring a mistrial. This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this
Manual. Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). Rule 614. Calling and Interrogation of Witnesses by the Court-Martial
(a) Calling by the court-martial. The military judge may, sua sponte or at the request of the members or the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. When the members wish to call or recall a witness, the military judge shall determine whether it is appropriate to do so under these rules or this Manual.
(b) Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party. Members shall submit their questions to the military judge in writing so that a ruling may be made on the propriety of the questions or the course of questioning and so that questions may be asked on behalf of the court by the military judge in a form acceptable to the military judge. When a witness who has not testified previously is called by the military judge or the members, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.
(c) Objections. Objections to the calling of witnesses by the military judge or the members or to the interrogation by the military judge or the members may be made at the time or at the next available opportunity when the members are not present. Rule 615. Exclusion of Witnesses
At the request of the prosecution or defense the military judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the military judge may make the order sua sponte. This rule does not authorize exclusion of (1) the accused, or (2) a member of an armed service or an employee of the United States designated as representative of the United States by the trial counsel, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's case.
SECTION VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue. Rule 702.
Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert, at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Rule 704. Opinion on Ultimate Issue
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Rule 705. Disclosure of Facts or Data Underlying
Expert Opinion
The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the military judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Rule 706. Court Appointed Experts
(a) Appointment and compensation. The trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain expert witnesses under Article 46. The employment and compensation of expert witnesses is governed by paragraphs 115 and 116 of this Manual.
(b) Disclosure of employment. In the exercise of discretion, the military judge may authorize disclosure to the members of the fact that the military judge called an expert witness.
(c) Accused's experts of own selection. Nothing in this rule limits the accused in calling expert witnesses of the accused's own selection and at the accused's own expense.
SECTION VIII. HEARSAY Rule 801.
Definitions The following definitions apply under this section:
(a) Statement. A "statement" is (1) an oral or written assertion or
(2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. " Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) is inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) 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, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either the party's individual or representative capacity, or (B) a statement of which the party has manifested the party's adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment of the agent or servant, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or by any Act of Congress applicable in trials by court-martial. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes the armed forces, a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Among those memoranda, reports, records, or data compilations normally admissible pursuant to this paragraph are enlistment papers, physical examination papers, outline-figure and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public office or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other personnel acting in a law enforcement capacity, or (C) against the government, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Notwithstanding (B), the following are admissible under this paragraph as a record of a fact or event if made by a person within the scope of the person's official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event: enlistment papers, physical examination papers, outline-figure and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, records of court-martial convictions, logs, unit personnel diaries, individual equipment records, guard reports, daily strength records of prisoners, and rosters of prisoners.
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.
(17) Market reports, commercial publications. Market quotations, tabulations, directories, lists (including government price lists), or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned treaties. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treaties, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(19) Reputation concerning personal or family history. Reputation among members of the person's family by blood, adoption, or marriage, or among the person's associates, or in the community, concerning the person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person's personal or family history.
(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
(21) Reputation as to character. Reputation of a person's character among the person's associates or in the community.
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death, dishonorable discharge, or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.
(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family, or general history, or boundaries essential to the judgment, if the same would be provable by evidence of reputation.
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant. Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definitions of unavailability. " Unavailability as a witness" includes situations in which the declarant--
(1) is exempted by ruling of the military judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the military judge to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means; or
(6) is unavailable within the meaning of Article 49(d)(2). A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such record is a verbatim record. This paragraph is subject to the limitations set forth in Articles 49 and 50.
(2) Statement under belief of impending death. In a prosecution for homicide or for any offense resulting in the death of the alleged victim, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the military judge determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant. Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. SECTION IX. AUTHENTICATION AND IDENTIFICATION Rule 901. Requirement of Authentication or Identification
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress, by rules prescribed by the Supreme Court pursuant to statutory authority, or by applicable regulations prescribed pursuant to statutory authority.
Rule 902. Self-Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraphs (1), (2), or (3) of this rule or complying with any Act of Congress, rule prescribed by the Supreme Court pursuant to statutory authority, or an applicable regulation prescribed pursuant to statutory authority.
(4a) Documents or records of the United States accompanied by attesting certificates. Documents or records kept under the authority of the United States by any department, bureau, agency, office, or court thereof when attached to or accompanied by an attesting certificate of the custodian of the document or record without further authentication.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress and Regulations. Any signature, document, or other matter declared by Act of Congress or by applicable regulation prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic. Rule 903.
Subscribing Witness' Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. SECTION X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule 1001. Definitions For purposes of this section the following definitions are applicable:
(1) Writings and recordings. " Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. " Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
Rule 1002. Requirement of an Original
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, this Manual, or by Act of Congress.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Rule 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. Rule 1005. Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct or attested to in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The military judge may order that they be produced in court. Rule 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by the party's written admission, without accounting for the nonproduction of the original. Rule 1008. Functions of Military Judge and Members
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the military judge to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. SECTION XI. MISCELLANEOUS RULES Rule 1101.
Applicability of Rules
(a) Rules applicable. Except as otherwise provided in this Manual, the rules apply generally to all courts-martial, including summary courts-martial; to proceedings pursuant to Article 39(a); to limited fact finding proceedings ordered on review; to proceedings in revision; and to contempt proceedings except those in which the judge may act summarily.
(b) Rules of privilege. The rules with respect to privileges in Section V apply at all stages of all actions, cases, and proceedings.
(c) Rules relaxed. The application of these rules may be relaxed in sentencing proceedings as provided under paragraph 75c and otherwise as provided in this Manual.
(d) Rules inapplicable. These rules (other than with respect to privileges) do not apply in investigative hearings pursuant to Article 32; proceedings for vacation of suspension of sentence pursuant to Article 72; proceedings for search authorizations; proceedings involving pretrial restraint; and in other proceedings authorized under the Uniform Code of Military Justice or this Manual and not listed in rule 1101(a).
Rule 1102. Amendments
Amendments to the Federal Rules of Evidence shall apply to the Military Rules of Evidence 180 days after the effective date of such amendments unless action to the contrary is taken by the President. Rule 1103. Title These rules may be known and cited as the Military Rules of Evidence. PART B. CCONFORMING AMENDMENTS SEC. 1. Chapter VI is amended as follows:
(a) The second paragraph within paragraph 26d is amended by striking out "(148e)"; and
(b) Paragraph 28c is amended by striking out "147aand ". SEC. 2.
Chapter VII is amended as follows:
(a) Paragraph 30a is amended to read as follows: " The rules concerning interrogations, searches and seizures, and identification procedures are set forth in chapter XXVII, section III.";
(b) Paragraph 30b is amended to read as follows: " The rules concerning privileges are set forth in chapter XXVII, section V.";
(c) Paragraph 32b is amended by striking out the sixth sentence and inserting in place thereof the following:
" The rules concerning interrogations, searches and seizures, and identification procedures are set forth in chapter XXVII, section III. The rules concerning privileges are set forth in chapter XXVII, section V"; and
(d) Paragraph 32f(4)(c) is amended by striking out the second sentence. SEC. 3. Chapter IX is amended as follows:
(a) The second paragraph within paragraph 44g(1) is amended by striking out "154b" and inserting in place thereof "54f".
(b) The second paragraph within paragraph 44g(2) is amended to read as follows:
" On behalf of the prosecution, he conducts the examination of witnesses under the rules of evidence set forth in chapter XXVII.".
(c) The second paragraph within paragraph 44h is amended by striking out "151b (1) and (3)" and inserting in place thereof "chapter XXVII, section V";
(d) Paragraph 48d is amended by striking out "154b" and inserting in place thereof "54f";
(e) Paragraph 48g is amended by striking out "148e, 149b;"; and
(f) Paragraph 50c is amended by striking out the second sentence.
SEC. 4. Chapter X is amended as follows:
(a) Paragraph 53c is amended by striking out "140b" and inserting in place thereof "chapter XXVII, rule 306";
(b) Paragraph 53h is amended by striking out "(75c(2), 140a, 148e, and 149b)";
(c) Paragraph 54 is amended as follows:
(1) Paragraph 54a is amended by striking out everything after the first sentence and inserting in place thereof the following:
" Examination of a witness by the military judge or members of the court-martial ordinarily is conducted after examination of that witness by the parties.";
(2) Paragraph 54d is amended:
(A) by striking out the second sentence of the first paragraph;
(B) by striking out the last sentence of the second paragraph; and
(C) by adding the following paragraph at the end therof:
" When a witness points or otherwise refers to certain parts of a map, photograph, sketch, or chart, the military judge, or the president of a special court-martial without a military judge, should require counsel examining the witness to have the witness mark the exhibit in some fashion and identify the mark in his testimony so that reviewing authorities may obtain a clear comprehension of the testimony of the witness. If a large map, photograph, sketch, or chart is being used so that it can be observed by all parties to the trial, the military judge, or the president of a special court-martial without a military judge, should require that it, or a copy complete with all marks placed upon the original, be attached to the record of trial as an exhibit. A blackboard should not be used unless it can be photographed or reproduced in some manner."; and
(3) Paragraph 54f is amended as follows:
"f. Stipulations. (1) As to facts and the contents of writings. The parties may make a written or oral stipulation as to the existence or nonexistence of any fact. If an accused has pleaded not guilty and the plea still stands, a stipulation which practically amounts to a confession should not be received in evidence. Also, a stipulation which if true would operate as a complete defense to an offense charged should not be received in evidence. A stipulation should not be received in evidence if any doubt exists as to the accused's understanding of what is involved. A party may withdraw from an agreement to stipulate or from a stipulation at any time before the stipulation is received in evidence, and in such a case the stipulation cannot be received in evidence. Also, the military or the president of a special court-martial without a military judge may as a matter of discretion permit a party to withdraw from a stipulation which has been received in evidence, and in this event the stipulation must be disregarded by the court. Unless it is properly withdrawn or is ordered stricken from the record, a stipulation of fact that has been received in evidence may not be contradicted by the parties thereto.
" Subject to the above observations as to stipulations of facts, stipulations may be made as to the contents of a writing.
"(2) As to testimony. The parties may stipulate that if a certain person were present in court as a witness he would give certain testimony under oath. Such a stipulation does not admit the truth of the indicated testimony, nor does it add anything to the weight or the evidentiary nature of the testimony. Stipulated testimony may be attacked, contradicted, or explained in the same way as though the witness had actually so testified in person. The principles set forth in (1) above, as to the reception in evidence of stipulations and as to the withdrawal by a party from agreements to stipulate and from stipulations apply here also.
" A written stipulation as to testimony is merely read in evidence. Except for inspection of the writing by the president of a special court-martial without a military judge for the purpose of determining the admissibility of its contents, the writing itself is not shown to the members of the court. However, the writing shall be properly marked and incorporated in the record.
"(3) Instructions concerning stipulations received in a joint or common trial. When in a joint or common trial a stipulation is received which was made by only one or some of the accused, the members of the court should be instructed that the stipulation may be considered only with respect to the accused person or persons who joined in it.
"(4) The following paragraph is inserted at the end of paragraph 54:
"g. Real evidence. ' Real evidence' includes physical objects, such as clothing, jewelry, weapons, and marks or wounds on s person's body. If an item of real evidence which has been introduced in the case is not to be attached to the record of trial because of the impracticability of doing so or for some other reason, the item should be clearly and accurately described for the record by testimony, photographs, or other means so that it may be considered properly upon review of the case.";
(d) Paragraph 56c is amended by striking out "and 148e";
(e) Paragraph 57a(2) is amended by striking out "; for examples, see 138g, 140b, and 153b(2)(c)";
(f) The fourth paragraph within paragraph 57b is amended by striking out everything after "considered separately.";
(g) The second paragraph within paragraph 57g(2) is amended by striking out "(154c)"; and
(h) The third paragraph within paragraph 57g(2) is amended by striking out the last sentence. SEC. 5. Chapter XII is amended by inserting a new paragraph after paragraph 69 as follows:
"69 A. Motions to suppress. In addition to the motions discussed in paragraph 69, motions to suppress may be made under chapter XXVII
(Military Rules of Evidence).". SEC. 6. Chapter XIII is amended as follows:
(a) The fourth paragraph within paragraph 72b is amended as follows:
" Refusal of a witness to answer a proper question may be commented upon except as otherwise provided in chapter XXVII (Military Rules of Evidence).".
(b) Paragraph 73a is amended by striking out "(154a(3))";
(c) Paragraph 74a(2) is amended by striking out the last sentence and inserting in place there of the following:
" A conviction cannot be based solely upon self-contradictory testimony given by a witness other than the accused, even if a motive on the part of the accused to commit the offense is shown, if the contradiction is not adequately explained by the witness in the witness testimony. Also, a conviction cannot be based upon uncorroborated testimony given by an accomplice in a trial for any offense if the testimony is self-contradictory, uncertain, or improbable. Even if apparently corroborated and apparently credible, testimony of an accomplice which is adverse to the accused is of questionable integrity and is to be considered with great caution. When appropriate, the above consideration should, upon request by the defense, be included in the general instructions of the military judge or the president of a special court-martial without a military judge.";
(d) The fourth paragraph within paragraph 74a(3) is amended by striking out everything after the second sentence and inserting in place thereof the following:
" Evidence that tends directly to prove or disprove a fact in issue is called direct evidence. Evidence that tends directly to prove or disprove not a fact in issue but a fact or circumstances, from which, either alone or in connection with other facts or circumstances, one may, according to the common experience of mankind, reasonably infer the existence or nonexistence of another fact which is in issue is called indirect or circumstantial evidence. Circumstantial evidence is not resorted to as secondary or inferior evidence or only when there is an absence of direct evidence. It is admissible even when there is direct evidence. There is no general rule for contrasting the weight of circumstantial or direct evidence. The assertion of an eyewitness may be more convincing than contrary inferences that may be drawn from certain circumstances. Conversely, an inference drawn from one or more circumstances may be more convincing than a contrary assertion of an eyewitness.";
(e) The third paragraph within paragraph 75b(2) is amended by striking out the third sentence and inserting in place therof the following:
" The admissibility of evidence of previous convictions under this paragraph is governed by chapter XXVII (Military Rules of Evidence)."; and
(f) Paragraph 76a(2) is amended:
(1) by striking out " See 138g and 153b(2)(b)."; and
(2) by striking out "145c" and inserting in place therof "in chapter XXVII (Military Rules of Evidence)". SEC. 7. Chapter XIV is amended as follows:
(a) Paragraph 79a is amended by striking out " See also 137."; and
(b) Paragraph 79d(1) is amended by striking out "148e" and inserting in place thereof "chapter XXVII, section III". SEC. 8. Chapter XV is amended as follows:
(a) Paragraph 81a is amended by striking out "145b" and inserting in place thereof "chapter XXVII, rule 804(b)(1) (Military Rules of Evidence)"; and
(b) Paragraph 81b(2) is amended:
(1) by striking out "154b" and inserting in place thereof "54f"; and
(2) by striking out "145b" and inserting in place thereof "54f".
SEC. 9. Chapter XVI is amended as follows:
Paragraph 82g(1) is amended by striking out "143a(2)". SEC. 10.
Chapter XXIII is amended as follows:
(a) Paragraph 115a is amended by striking out "154b and inserting in place thereof "54f";
(b) Paragraph 115c is amended by striking out "151b(1) and (3)" and inserting in place thereof "chapter XXVII, section V (Military Rules of Evidence)";
(c) Paragraph 117b(6) is amended to read as follows:
"(6) Examination of deponents. Each party at the deposition is entitled to examine the deponent in the manner set forth for the examination of witnesses under chapter XXVII (Military Rules of Evidence).";
(d) Paragraph 117b(8) is amended by striking out everything after " See" and inserting in place thereof "chapter XXVII (Military Rules of Evidence) with respect to rules governing authentication of documents."; and
(e) Paragraph 117b(11) is amended to read as follows:
"(11) Use at trial. The admissibility of depositions at trial is governed by Article 49 and chapter XXVII (Military Rules of Evidence).
" A deposition will ordinarily be read to the court by the side on whose behalf it is being offered. At the reading, objections may be made to the introduction of the evidence which it contains in the same way that they would be made if the evidence was offered in the usual manner. If the ground of an objection to the use of a deposition or a part thereof is one which might have been obviated or removed, either in connection with the deposition itself or by retaking the deposition, if presented at the time interrogatories were submitted to the objecting party or to the military judge or the president of a special court-martial without a military judge or at the time the deposition was taken, a failure to have made the objection at that time is a waiver of the objection. It may be shown that an objection actually was made even if the objection is not noted in the body of the deposition, but in the absence of such a showing it may be assumed that no objections were made other than those noted. If the military judge or the president of a special court-martial without a military judge has ruled on an objection at the time interrogatories were submitted for acceptance, the objection shall again be considered at the time the deposition is read, if a request to do so is then made, without regard to the previous ruling.
" A failure to object to the introduction of a deposition on the ground that it was not taken on reasonable notice or before a proper officer, on the ground that it does not appear that the deponent is unavailable as a witness, or on the ground that the accused was not afforded in connection with the taking of the deposition an opportunity to be adequately represented by counsel and to confront and cross-examine the deponent may be regarded as a waiver of that objection.". SEC. 11. Chapter XXIV is amended as follows:
(a) Paragraph 120b is amended by striking out everything after the first sentence and inserting in place thereof the following:
" A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacks substantial capacity to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law. As used in this paragraph, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial behavior.";
(b) Paragraph 120c is amended by striking out everything after the first sentence;
(c) Paragraph 121 is amended to read as follows:
"121. INQUIRY. If it appears to any commanding officer who considers the disposition of charges as indicated in 32, 33, and 35 or to any investigating officer (34), trial counsel, defense counsel or, as provided by 122, military judge or member of the court, that there is reason to believe that the accused is insane (120d) or was insane at the time of the alleged offense (120b), that fact and the basis of the belief or observation should be submitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by a formal application for a mental examination under this paragraph. Prior to referral of charges, such inquiry may be ordered by the convening authority with immediate responsibility for the disposition of the charges. After referral of charges, the inquiry may be ordered by the military judge; provided, however, that the convening authority may order such an inquiry after referral of charges but prior to commencement of the first session of the court-martial conducted pursuant to Article 39(a) when a military judge is not reasonably available. The military judge may order a mental examination of the accused whenever he deems it appropriate notwithstanding any prior determination by the convening authority.
" When the report or the observations of the officer authorized to order an inquiry under this paragraph indicates a reasonable basis for such inquiry, the matter shall be referred to a board of one or more physicians for their observation and report as to the sanity of the accused. At least one member of the board should be a psychiatrist.
" When a mental examination is ordered under this paragraph, the order shall contain the reasons for doubting the sanity of the accused or requesting the examination. In addition to other requirements, the order shall require the board to make separate and distinct findings as to each of the following questions:
" At the time of the alleged criminal conduct did the accused have a mental disease or defect? The terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
" What is the clinical psychiatric diagnosis?
" Did the accused, at the time of the alleged criminal conduct and as a result of such mental disease or defect, lack substantial capacity to appreciate the criminality of his conduct?
" Did the accused, at the time of the alleged criminal conduct and as a result of such mental disease or defect, lack substantial capacity to conform his conduct to the requirements of law?
" Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense (120d)?
" Such other questions as may be appropriate may also be included. " In addition to the above requirements, the order shall specify:
" That upon completion of the board's investigation, only a statement of the board's ultimate conclusions as to all questions specified in the order shall be submitted to the officer ordering the examination, the individual's commanding officer, the investigating officer, if any, appointed pursuant to Article 32, and to all counsel in the case, the convening authority, and, after referral, to the military judge;
" That the full report of the board may be released by the board or other medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the convening authority or, after referral of charges by the military judge, except that a copy of the full report shall be furnished to the defense and, upon request, to the commanding officer of the accused; and
" That neither the contents of the report nor any matter considered by the board during its investigation shall be released by the board or other medical personnel to any individual not authorized to receive the full report, except pursuant to an order by the military judge.
" No individual, other than the defense counsel, accused, or, after referral of charges, the military judge, shall disclose to the trial counsel any statement made by the accused to the board or any evidence derived from that statement. See Military Rule of Evidence 302.
" The board should place the accused under observation, examine him, and conduct any further investigation that it deems necessary to comply with the order.
" Based upon the report, further action in the case may be suspended, the charges may be dismissed by an officer competent to convene a court-martial appropriate to try the offense charged, administrative action may be taken to discharge the accused from the service on the grounds of his mental disability, or, subject to Military Rule of Evidence 302, the charges may be referred to trial. Additional mental examinations may be directed at any stage of the proceedings as circumstances may require.";
(d) Paragraph 122a is amended by striking out "inference of sanity (138a(2))" and inserting in place thereof "presumption of sanity"; and
(e) Paragraph 122c is repealed. SEC. 12. Chapter XXV is amended as follows:
Paragraph 127c(1) is amended by striking out "76a, 123, and 154a" and inserting in place thereof "76a and 123". SEC. 13. Chapter XXVIII is amended as follows:
(a) The seventh paragraph within paragraph 162 is amended by striking out everything after "service record is" and inserting in place thereof "evidence of the fact, type, and date of discharge if such record is admissible under chapter XXVII (Military Rules of Evidence).";
(b) Paragraph 165 is amended by striking out "143 (Documentary Evidence)" and inserting in place thereof "chapter XXVII (Military Rules of Evidence)";
(c) Paragraph 171b is amended by striking out " See 138b.";
(d) the third paragraph within paragraph 194 is amended to read as follows:
" The use of expert medical testimony on the issue of whether a purported illness of the accused was feigned is governed by chapter XXVII (Military Rules of Evidence).";
(e) Paragraph 197a is amended by striking out "154a(2)" and inserting in place thereof "216h";
(f) The fourth paragraph within paragraph 199a is amended by striking out the last sentence;
(g) The eleventh paragraph within paragraph 202 A is amended to read as follows:
" Chapter XXVII (Military Rules of Evidence) governs the permissible means of proving banking entries and the authentication of checks, drafts, or orders returned with payment refused and the admissibility of these returned instruments.";
(h) The sixth paragraph within paragraph 213b is amended by striking out "154a(4)" and inserting in place thereof "216i";
(i) Paragraph 213f(4) is amended by striking out "147a as to taking judicial notice" and inserting in place thereof "chapter XXVII (Military Rules of Evidence) concerning proof"; and
(j) Paragraph 213f(9) is amended by striking out "154a(4)" and inserting in place thereof "216i". SEC. 14. Chapter XXIX is amended as follows:
(a) The third paragraph within paragraph 214 is amended by striking out "154a(3), (4), and (5)" and inserting in place thereof "216";
(b) Paragraph 216 is amended:
(1) by striking out the last sentence of the second paragraph within paragraph 216c;
(2) by striking out " See 138g(6)" in paragraph 216e; and
(3) by inserting the following at the end thereof:
"h. Effect of drunkenness. A temporary loss of reason which accompanies and is part of a drunken spree and which is not the result of delirium tremens or some other mental defect, disease, or derangement is not insanity in the legal sense. It is a general rule that voluntary drunkenness not amounting to legal insanity, whether caused by liquor or drugs, is not an excuse for an offense committed while in that condition. However, evidence of any degree of voluntary drunkenness may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, or a premeditated design to kill if actual knowledge, specific intent, or premeditated design to kill is a requirement of the offense.
" Evidence of drunkenness of the accused may be admitted on the question of the measure of punishment to be awarded in the event of conviction, even if that drunkenness would not be a defense to the offense charged.
"i. Effect of ignorance or mistake of fact. Ignorance or mistake of fact on the part of the accused is a defense when any type of knowledge of a certain fact is necessary to establish the offense. However, depending on the offense and facts involved, ignorance or mistake of fact may not be a defense unless the ignorance or mistake is reasonable. A feigned ignorance or mistake is, of course, no ignorance or mistake at all. If a certain fact, although an element of the offense, is one as to which no type of knowledge is required, such as the age of the victim in carnal knowledge (199b), ignorance or mistake as to that fact, even if reasonable will not be a defense but may be shown in extenuation. Some specific applications of these rules appear in chapter XXVIII (Punitive Articles).
"j. Effect of ignorance or mistake of law. As a general rule, ignorance or mistake of law, or of properly published regulations or directives of a general nature having the force of law, is not an excuse for the commission of an offense. If, however, to indicate the existence of a requisite intent or for any other reason, actual knowledge of a certain law or of the legal effect of certain known facts is necessary to establish the offense, ignorance or mistake as to that law or legal effect will be a defense. Also, ignorance or mistake of law or the legal effect of certain known facts may be a defense to show the absence of a guilty state of mind involved in an offense when actual knowledge thereof is not necessary to establish the offense. In this instance, however, depending on the offense and facts involved, the ignorance or mistake may not be a defense, unless it is reasonable. A feigned ignorance or mistake of law or the legal effect of certain known facts is, of course, no ignorance or mistake at all. Additionally, except for general orders or regulations, a person cannot be held responsible for a violation of a military regulation or directive unless he had actual knowledge of the regulation or directive. See 171a and b as to the distinction between general orders or regulations and other military orders.
" Even if the offense is one as to which ignorance or mistake of law is not a defense, the ignorance or mistake may nevertheless be shown in extenuation." SEC. 15. Appendix 8b is amended:
(a) by striking out " See 154b." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 16);
(b) by striking out " As to the competency of witnesses in general, see 148a." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 16);
(c) by striking out "see 149b(1)", (Manual for Courts-Martial (rev. ed. 1969), at A8 - 17);
(d) by striking out " See 149b(2)." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 17);
(e) by striking out "(149b(3))", (Manual for Courts-Martial (rev. ed. 1969), at A8 - 17);
(f) by striking out " See 149b(3)." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 17);
(g) by striking out " See 57a(2), 138g, 140a, and 153b(2)(c)." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 18);
(h) by striking out "see 143b(2) and (3) concerning their authentication." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 19);
(i) by striking out " See 154b." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 19);
(j) by striking out " See 145 and 154b(2)." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 19);
(k) by striking out "(140a)" and inserting in place thereof "unless there is a waiver of the voluntariness issue under Chapter XXVII, section III (Military Rules of Evidence", (Manual for Courts-Martial (rev. ed. 1969), at A8 - 19);
(l) by striking out "(149b)" (Manual for Courts-Martial (rev. ed. 1969), at A8 - 19);
(m) by striking out "in accordance with 53h and 140a" (Manual for courts-Martial (rev. ed. 1969), at A8 - 19);
(n) by striking out " See 149b." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 21);
(o) by striking out " See 148c, 149b(1), and 150b." (Manual for Courts-Martial (rev. ed. 1969), at A8 - 21);
(p) by striking out "(140c)" (Manual for Courts-Martial (rev. ed. 1969), at A8 - 22); and (q) by striking out the following:
" NOTE. The right of the members of the court to cause the recall of a witness or to call for additional evidence is subject to an interlocutory ruling by the MJ as to the propriety therefor. See 54b.
" Unless the MJ directs otherwise, the TC will conduct the direct and redirect examination of witnesses called by the court in the same manner as if the witness had been called by the prosecution. However, the MJ may permit the court members to question the witness directly, or he may do so himself, at any time after the TC has asked the initial formal questions. See 149b(3) for details concerning the proper examination of a witness by the court or a member and for limitations which the MJ may place on this examination."
(Manual for Courts-Martial (rev. ed. 1969), at A8 - 22). SEC. 16. Appendix 9a is amended by striking out "(see, for example, 148b)" (Manual for Courts-Martial (rev. ed. 1969), at A9 - 3).
PART C. EFFECTIVE DATE
These amendments shall take effect on September 1, 1980. These amendments apply to all court-martial processes taken on or after that date: Provided, that nothing contained in these amendments shall be construed to invalidate any investigation, trial in which arraignment has been completed, or other action begun prior to that date; and any such investigation, trial, or other action may be completed in accordance with applicable laws, Executive Orders, and regulations in the same manner and with the same effect as if these amendments had not been prescribed. The Secretary of Defense, on behalf of the President, shall transmit a copy of this order to the Congress of the United States in accord with section 836 of title 10 of the United States Code.
JIMMY CARTER
THE WHITE HOUSE,
March 12, 1980.
Jimmy Carter, Executive Order 12198—Prescribing Amendments to the Manual for Courts-Martial, United States, 1969 (Revised Edition) Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/279100