Manual for Courts-Martial; Proposed Evidence Amendments, 65062-65093 [2011-26896]

Agencies

• Office of the Secretary
• DEPARTMENT OF DEFENSE

[Federal Register Volume 76, Number 202 (Wednesday, October 19, 2011)]
[Notices]
[Pages 65062-65093]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26896]



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Vol. 76

Wednesday,

No. 202

October 19, 2011

Part III





Department of Defense





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Office of the Secretary





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Manual for Courts-Martial; Proposed Evidence Amendments; Notice

Federal Register / Vol. 76 , No. 202 / Wednesday, October 19, 2011 / 
Notices

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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2011-OS-0112]


Manual for Courts-Martial; Proposed Evidence Amendments

AGENCY: Joint Service Committee on Military Justice (JSC), DoD.

ACTION: Notice of Proposed Amendments to the Military Rules of Evidence 
in the Manual for Courts-Martial, United States (2008 ed.) (MCM) and 
Notice of Public Meeting.

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SUMMARY: The Department of Defense is recommending changes to the 
Manual for Courts-Martial, United States (2008 Edition) (MCM). The 
proposed changes incorporate the restyled Federal Rules of Evidence 
(FRE) approved by the U.S. Supreme Court on 26 April 2011 and which 
will take effect, pursuant to the Rules Enabling Act, on 1 December 
2011. In accordance with 10 U.S.C. 936 and Military Rule of Evidence 
(MRE) 1102(a), amendments to the FRE will automatically amend parallel 
provisions of the MRE eighteen months after the effective date of such 
amendments, absent contrary action by the President. The MCM and DoD 
Directive 5500.17, ``Role and Responsibilities of the Joint Service 
Committee (JSC) on Military Justice,'' May 3, 2003, require the JSC to 
assist the President in fulfilling his rulemaking responsibilities 
under 10 U.S.C. 936. These proposed changes have not been coordinated 
within the Department of Defense under DoD Directive 5500.1, 
``Preparation, Processing and Coordinating Legislation, Executive 
Orders, Proclamations, Views Letters Testimony,'' June 15, 2007, and do 
not constitute the official position of the Department of Defense, the 
Military Departments, or any other Government agency.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 3, 2003. This notice is intended only to 
improve the internal management of the Federal Government. It is not 
intended to create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States, its 
agencies, its officers, or any person. This notice also sets forth the 
date, time and location for the public meeting of the JSC to discuss 
the proposed changes. For easier viewing and comparison to the federal 
rules, the proposed amendments to the Military Rules of Evidence 
described below can be viewed in a Word or Excel document at the 
following Web site: https://www.dod.gov/dodgc/jsc_business.html.

DATES: Comments on the proposed changes must be received no later than 
December 9, 2011, to be assured consideration by the JSC. A public 
meeting for comments will be held on November 17, 2011, at 10 a.m. in 
the Court of Appeals for the Armed Forces, 450 E Street, NW., 
Washington, DC 20442-0001.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. (Suggested keywords: 
Evidence, Rules, Joint Service Committee)
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-
3100.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at https://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Christopher A. 
Kennebeck, Executive Secretary, Joint Service Committee on Military 
Justice, Office of the Judge Advocate General, Criminal Law Division, 
2200 Pentagon, Room 3B548, Washington DC, 32101-2200, (571) 256-8136, 
e-mail c.kennebeck@conus.army.mil.

SUPPLEMENTARY INFORMATION: The proposed amendments by Executive Order 
to the MCM are as follows:
    Section 1. Part III of the Manual for Courts-Martial, United 
States, is revised to read as follows:

Rule 101. Scope

    (a) Scope. These rules apply to court-martial proceedings to the 
extent and with the exceptions stated in Mil. R. Evid. 1101.
    (b) Sources of Law. In the absence of guidance in this Manual or 
these rules, courts-martial will apply:
    (1) First, the Federal Rules of Evidence and the case law 
interpreting them; 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.
    (d) Definition. In these rules, a ``rule prescribed by the Supreme 
Court'' means a rule adopted by the Supreme Court under statutory 
authority.

Rule 102. Purpose

    These rules should be construed so as to administer every 
proceeding fairly, eliminate unjustifiable expense and delay, and 
promote the development of evidence law, to the end of ascertaining the 
truth and securing a just determination.

Rule 103. Rulings on Evidence

    (a) Preserving a Claim of Error. A party may claim error in a 
ruling to admit or exclude evidence only if the error materially 
prejudices a substantial right of the party and:
    (1) If the ruling admits evidence, a party, on the record:
    (A) Timely objects or moves to strike; and
    (B) States the specific ground, unless it was apparent from the 
context; or
    (2) If the ruling excludes evidence, a party informs the military 
judge of its substance by an offer of proof, unless the substance was 
apparent from the context.
    (b) Not Needing to Renew an Objection or Offer of Proof. Once the 
military judge rules definitively on the record admitting or excluding 
evidence, either before or at trial, a party need not renew an 
objection or offer of proof to preserve a claim of error for appeal.
    (c) Review of Constitutional Error. The standard provided in this 
subdivision does not apply to errors implicating the United States 
Constitution as it applies to members of the armed forces, unless the 
error arises under these rules and this subdivision provides a standard 
that is more advantageous to the accused than the constitutional 
standard.
    (d) Military Judge's Statement about the Ruling; Directing an Offer 
of Proof. The military judge may make any statement about the character 
or form of the evidence, the objection made, and the ruling. The 
military judge may direct that an offer of proof be made in question-
and-answer form.
    (e) Preventing the Members from Hearing Inadmissible Evidence. In a 
court-martial composed of a military judge and members, to the extent 
practicable, the military judge must conduct a trial so that 
inadmissible evidence is not suggested to the members by any means.

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    (f) Taking Notice of Plain Error. A military judge may take notice 
of a plain error that materially prejudices a substantial right, even 
if the claim of error was not properly preserved.

Rule 104. Preliminary Questions

    (a) In General. The military judge must decide any preliminary 
question about whether a witness is available or qualified, a privilege 
exists, a continuance should be granted, or evidence is admissible. In 
so deciding, the military judge is not bound by evidence rules, except 
those on privilege.
    (b) Relevance that Depends on a Fact. When the relevance of 
evidence depends on whether a fact exists, proof must be introduced 
sufficient to support a finding that the fact does exist. The military 
judge may admit the proposed evidence on the condition that the proof 
be introduced later. 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) Conducting a Hearing so that the Members Cannot Hear It. Except 
in cases tried before a special court-martial without a military judge, 
the military judge must conduct any hearing on a preliminary question 
so that the members cannot hear it if:
    (1) The hearing involves the admissibility of a statement of the 
accused under Mil. R. Evid. 301-306;
    (2) The accused is a witness and so requests; or
    (3) Justice so requires.
    (d) Cross-Examining the Accused. By testifying on a preliminary 
question, the accused does not become subject to cross-examination on 
other issues in the case.
    (e) Evidence Relevant to Weight and Credibility. This rule does not 
limit a party's right to introduce before the members evidence that is 
relevant to the weight or credibility of other evidence.

Rule 105. Limiting Evidence That Is Not Admissible Against Other 
Parties or for Other Purposes

    If the military judge admits evidence that is admissible against a 
party or for a purpose--but not against another party or for another 
purpose--the military judge, on timely request, must restrict the 
evidence to its proper scope and instruct the members accordingly.

Rule 106. Remainder of or Related Writings or Recorded Statements

    If a party introduces all or part of a writing or recorded 
statement, an adverse party may require the introduction, at that time, 
of any other part--or any other writing or recorded statement--that in 
fairness ought to be considered at the same time.

Rule 201. Judicial Notice of Adjudicative Facts

    (a) Scope. This rule governs judicial notice of an adjudicative 
fact only, not a legislative fact.
    (b) Kinds of Facts That May Be Judicially Noticed. The military 
judge may judicially notice a fact that is not subject to reasonable 
dispute because it:
    (1) Is generally known universally, locally, or in the area 
pertinent to the event; or
    (2) Can be accurately and readily determined from sources whose 
accuracy cannot reasonably be questioned.
    (c) Taking Notice. The military judge:
    (1) May take judicial notice whether requested or not; or
    (2) Must take judicial notice if a party requests it and the 
military judge is supplied with the necessary information.
    The military judge must inform the parties in open court when, 
without being requested, he or she takes judicial notice of an 
adjudicative fact essential to establishing an element of the case.
    (d) Timing. The military judge may take judicial notice at any 
stage of the proceeding.
    (e) Opportunity to Be Heard. On timely request, a party is entitled 
to be heard on the propriety of taking judicial notice and the nature 
of the fact to be noticed. If the military judge takes judicial notice 
before notifying a party, the party, on request, is still entitled to 
be heard.
    (f) Instructing the Members. The military judge must instruct the 
members that they may or may not accept the noticed fact as conclusive.

Rule 202. Judicial Notice of Law

    (a) Domestic Law. The military judge may take judicial notice of 
domestic law. If a domestic law is a fact that is of consequence to the 
determination of the action, the procedural requirements of Mil. R. 
Evid. 201--except Rule 201(f)--apply.
    (b) Foreign Law. A party who intends to raise an issue concerning 
the law of a foreign country must give reasonable written notice. The 
military judge, in determining foreign law, may consider any relevant 
material or source, in accordance with Mil. R. Evid. 104. Such a 
determination is a ruling on a question of law.

Rule 301. Privilege Concerning Compulsory Self-Incrimination

    (a) General Rule. An individual may claim the most favorable 
privilege provided by the Fifth Amendment to the United States 
Constitution, Article 31, or these rules. The privileges against self-
incrimination are applicable only to evidence of a testimonial or 
communicative nature.
    (b) Standing. The privilege of a witness to refuse to respond to a 
question that may tend to incriminate the witness is a personal one 
that the witness may exercise or waive at the discretion of the 
witness.
    (c) Limited Waiver. An accused who chooses to testify as a witness 
waives the privilege against self-incrimination only with respect to 
the matters about which he or she testifies. If the accused is on trial 
for two or more offenses and on direct examination testifies on the 
merits about 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 
Mil. R. Evid. 608(b).
    (d) Exercise of the Privilege. If a witness states that the answer 
to a question may tend to incriminate him or her, the witness cannot be 
required to answer unless the military judge finds that the facts and 
circumstances are such that no answer the witness might make to the 
question would tend 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 he or she 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 Requirements. The minimum grant of immunity adequate 
to overcome the privilege is that which under either R.C.M. 704 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 must be reduced to

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writing and must 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.
    (e) Waiver of the Privilege. A witness who answers a self-
incriminating question without having asserted the privilege against 
self-incrimination may be required to answer questions relevant to the 
disclosure, unless the questions are likely to elicit additional self-
incriminating information.
    (1) 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.
    (2) Any limited waiver of the privilege under this subdivision (e) 
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 Mil. R. Evid. 
608(b).
    (f) Effect of Claiming the Privilege.
    (1) No Inference To Be Drawn. The fact that a witness has asserted 
the privilege against self-incrimination cannot be considered as 
raising any inference unfavorable to either the accused or the 
government.
    (2) Pretrial Invocation Not Admissible. The fact that the accused 
during official questioning and in exercise of rights under the Fifth 
Amendment to the United States Constitution or Article 31 remained 
silent, refused to answer a certain question, requested counsel, or 
requested that the questioning be terminated, is not admissible against 
the accused.
    (3) Instructions Regarding the Privilege. 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 will 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 
R.C.M. 706 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 Mil. R. 
Evid. 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) If the court-martial has allowed the defense to present expert 
testimony as to the mental condition of the accused, an expert witness 
for the prosecution may testify as to the reasons for his or her 
conclusions, but such testimony may not extend to statements of the 
accused except as provided in (1).
    (c) Release of Evidence from an R.C.M. 706 Examination. If the 
defense offers expert testimony concerning the mental condition of the 
accused, the military judge, upon motion, must order the release to the 
prosecution of the full contents, other than any statements made by the 
accused, of any report prepared pursuant to R.C.M. 706. If the defense 
offers statements made by the accused at such examination, the military 
judge, upon motion, may 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 R.C.M. 706 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 Mil. R. Evid. 304 for an 
objection or a motion to suppress.

Rule 303. Degrading Questions

    Statements and evidence are inadmissible if they are not material 
to the issue and may tend to degrade the person testifying.

Rule 304. Confessions and Admissions

    (a) General Rule. If the accused makes a timely motion or objection 
under this rule, an involuntary statement from the accused, or any 
evidence derived therefrom, is inadmissible at trial except as provided 
in subdivision (e).
    (1) Definitions. As used in this rule:
    (A) ``Involuntary statement'' means a statement obtained in 
violation of the self-incrimination privilege or due process clause of 
the Fifth Amendment to the United States Constitution, Article 31, or 
through the use of coercion, unlawful influence, or unlawful 
inducement.
    (B) ``Confession'' means an acknowledgment of guilt.
    (C) ``Admission'' means a self-incriminating statement falling 
short of an acknowledgment of guilt, even if it was intended by its 
maker to be exculpatory.
    (2) Failure to deny an accusation of wrongdoing is not an admission 
of the truth of the accusation if at the time of the alleged failure 
the person was under investigation or was in confinement, arrest, or 
custody for the alleged wrongdoing.
    (b) Evidence Derived from a Statement of the Accused. When the 
defense has made an appropriate and timely motion or objection under 
this rule, evidence derived from a statement of the accused may not be 
admitted unless the military judge finds by a preponderance of the 
evidence that:
    (1) The statement was made voluntarily,
    (2) The allegedly derivative evidence was not obtained by use of 
the accused's statement, or
    (3) The evidence would have been obtained even if the statement had 
not been made.
    (c) Corroboration of a Confession or Admission.
    (1) 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 
admitted into evidence that corroborates the essential facts admitted 
to justify sufficiently an inference of their truth.
    (2) 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.
    (3) 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.

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    (4) 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.
    (5) Procedure. The military judge alone will determine when 
adequate evidence of corroboration has been received. Corroborating 
evidence must be introduced before the admission or confession is 
introduced unless the military judge allows submission of such evidence 
subject to later corroboration.
    (d) Disclosure of Statements by the Accused and Derivative 
Evidence. Before arraignment, the prosecution must 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, and all evidence derived from 
such statements, that the prosecution intends to offer against the 
accused.
    (e) Limited Use of an Involuntary Statement. A statement obtained 
in violation of Article 31 or Mil. R. Evid. 305(a)-(c) may be used 
only:
    (1) To impeach by contradiction the in-court testimony of the 
accused; or
    (2) In a later prosecution against the accused for perjury, false 
swearing, or the making of a false official statement.
    (f) Motions and Objections.
    (1) Motions to suppress or objections under this rule, or Mil. R. 
Evid. 302 or 305, to any statement or derivative evidence that has been 
disclosed must 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.
    (2) If the prosecution seeks to offer a statement made by the 
accused or derivative evidence that was not disclosed before 
arraignment, the prosecution must provide timely notice to the military 
judge and defense counsel. The defense may object at that time and the 
military judge may make such orders as are required in the interests of 
justice.
    (3) 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.
    (A) Prior to the introduction of such testimony by the accused, the 
defense must inform the military judge that the testimony is offered 
under this subdivision.
    (B) 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.
    (4) 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.
    (5) Rulings. The military judge must rule, prior to plea, upon any 
motion to suppress or objection to evidence made prior to plea unless, 
for good cause, the military judge orders that the ruling be deferred 
for determination at trial or after findings. The military judge may 
not defer ruling if doing so adversely affects a party's right to 
appeal the ruling. The military judge must state essential findings of 
fact on the record when the ruling involves factual issues.
    (6) Burden of Proof. When the defense has made an appropriate 
motion or objection under this rule, the prosecution has the burden of 
establishing the admissibility of the evidence. When the military judge 
has required a specific motion or objection under subdivision (f)(4), 
the burden on the prosecution extends only to the grounds upon which 
the defense moved to suppress or object to the evidence.
    (7) Standard of Proof. 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 will be resolved pursuant to R.C.M. 801(e)(3)(C).
    (8) Effect of Guilty Plea. Except as otherwise expressly provided 
in R.C.M. 910(a)(2), 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.
    (g) Weight of the Evidence. If a statement is admitted into 
evidence, the military judge must permit the defense to present 
relevant evidence with respect to the voluntariness of the statement 
and must instruct the members to give such weight to the statement as 
it deserves under all the circumstances.
    (h) 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.
    (i) Evidence of an Oral Statement. 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.
    (j) Refusal To Obey an Order To Submit a Body Substance. If an 
accused refuses a lawful order to submit for chemical analysis a sample 
of his or her blood, breath, urine or other body substance, evidence of 
such refusal may be admitted into evidence on:
    (1) A charge of violating an order to submit such a sample; or
    (2) Any other charge on which the results of the chemical analysis 
would have been admissible.

Rule 305. Warnings About Rights

    (a) General Rule. A statement obtained in violation of this rule is 
involuntary and will be treated under Mil. R. Evid. 304.
    (1) Article 31 Rights Advisory. A statement obtained from the 
accused in violation of the accused's rights under Article 31 is 
involuntary and therefore inadmissible against the accused except as 
provided in subdivision (d).
    (2) Fifth Amendment Right to Counsel. If a person suspected of an 
offense and subjected to custodial interrogation requests counsel, any 
statement made in the interrogation, or evidence derived from the 
interrogation, is inadmissible against the accused unless counsel was 
present for the interrogation.
    (3) Sixth Amendment Right to Counsel. If an accused against whom 
charges have been preferred is interrogated on matters concerning the 
preferred charges by anyone acting in a

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law enforcement capacity, or the agent of such a person, and the 
accused requests counsel, or if the accused has appointed or retained 
counsel, any statement made in the interrogation, or evidence derived 
from the interrogation, is inadmissible unless counsel was present for 
the interrogation.
    (4) Definitions. As used in this rule:
    (A) ``Person subject to the code'' means a person subject to the 
Uniform Code of Military Justice, as defined by Article 2, and includes 
a knowing agent of any such person or of a military unit.
    (B) ``Interrogation'' means any formal or informal questioning in 
which an incriminating response either is sought or is a reasonable 
consequence of such questioning.
    (C) ``Custodial interrogation'' means questioning that takes place 
while 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.
    (b) Provision of Counsel. When a person entitled to counsel under 
this rule requests counsel, a judge advocate or an individual certified 
in accordance with Article 27(b) will be provided by the United States 
at no expense to the person and without regard to the person's 
indigency 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.
    (c) Waiver.
    (1) Waiver of the Privilege Against Self-Incrimination. After 
receiving applicable warnings under this rule, a person may waive the 
rights described therein and in Mil. R. Evid. 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 affirmatively 
acknowledge that he or she understands the rights involved, 
affirmatively decline the right to counsel, and affirmatively consent 
to making a statement.
    (2) Waiver of the Right to Counsel. If the right to counsel is 
applicable under this rule 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.
    (3) Waiver After Initially Invoking the Right to Counsel.
    (A) Fifth Amendment Right to Counsel. If an accused or suspect 
subjected to custodial interrogation requests counsel, any subsequent 
waiver of the right to counsel obtained during a custodial 
interrogation concerning the same or different offenses is invalid 
unless the prosecution can demonstrate by a preponderance of the 
evidence that:
    (i) The accused or suspect initiated the communication leading to 
the waiver; or
    (ii) The accused or suspect has not continuously had his or her 
freedom restricted by confinement, or other means, during the period 
between the request for counsel and the subsequent waiver.
    (B) Sixth Amendment Right to Counsel. If an accused or suspect 
interrogated after preferral of charges as described in subdivision 
(c)(1) requests counsel, any subsequent waiver of the right to counsel 
obtained during an interrogation concerning the same offenses is 
invalid unless the prosecution can demonstrate by a preponderance of 
the evidence that the accused or suspect initiated the communication 
leading to the waiver.
    (d) Standards for Nonmilitary Interrogations.
    (1) United States Civilian Interrogations. When a person subject to 
the code 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, the person's entitlement to rights 
warnings and the validity of any waiver of applicable rights will 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. Warnings under Article 31 and the Fifth 
and Sixth Amendments to the United States Constitution are not required 
during an interrogation conducted outside of a State, district, 
commonwealth, territory, or possession of the United States 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 (d)(1). A statement obtained from a foreign interrogation 
is admissible unless the statement 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 (d)(1) merely because 
such a person was present at an interrogation conducted in a foreign 
nation by officials of a foreign government or their agents, or because 
such a person acted as an interpreter or 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) The accused makes a timely motion to suppress or an objection 
to the evidence under this rule; and
    (2) 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) Definition. As used in this rule, a search or seizure is 
``unlawful'' if it was conducted, instigated, or participated in by:
    (1) Military personnel or their agents and was in violation of the 
Constitution of the United States as applied to members of the armed 
forces, a federal statute applicable to trials by court-martial that 
requires exclusion of evidence obtained in violation thereof, or Mil. 
R. Evid. 312-317;
    (2) 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

[[Page 65067]]

    (3) Officials of a foreign government or their agents, and the 
accused was subjected to gross and brutal maltreatment. A search or 
seizure is not ``participated in'' by a United States military or 
civilian official merely because that person is present at a search or 
seizure conducted in a foreign nation by officials of a foreign 
government or their agents, or because that person acted as an 
interpreter or took steps to mitigate damage to property or physical 
harm during the foreign search or seizure.
    (c) Exceptions.
    (1) Impeachment. 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.
    (2) Inevitable Discovery. Evidence that was obtained as a result of 
an unlawful search or seizure may be used when the evidence would have 
been obtained even if such unlawful search or seizure had not been 
made.
    (3) Good Faith Execution of a Warrant or Search Authorization. 
Evidence that was obtained as a result of an unlawful search or seizure 
may be used if:
    (A) The search or seizure resulted from an authorization to search, 
seize or apprehend issued by an individual competent to issue the 
authorization under Mil. R. Evid. 315(d) or from a search warrant or 
arrest warrant issued by competent civilian authority;
    (B) The individual issuing the authorization or warrant had a 
substantial basis for determining the existence of probable cause; and
    (C) The officials seeking and executing the authorization or 
warrant reasonably and with good faith relied on the issuance of the 
authorization or warrant. Good faith is to be determined using an 
objective standard.
    (d) Motions to Suppress and Objections.
    (1) Disclosure. Prior to arraignment, the prosecution must disclose 
to the defense all evidence seized from the person or property of the 
accused, or believed to be owned by the accused, or evidence derived 
therefrom, that it intends to offer into evidence against the accused 
at trial.
    (2) Time Requirements.
    (A) When evidence has been disclosed prior to arraignment under 
subdivision (d)(1), the defense must make any motion to suppress or 
objection under this rule 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 described in 
subdivision (d)(1) that was not disclosed prior to arraignment, the 
prosecution must 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.
    (3) Specificity. The military judge may require the defense to 
specify the grounds upon which the defense moves to suppress or object 
to evidence described in subdivision (d)(1). 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) Challenging Probable Cause.
    (A) Relevant Evidence. 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 subdivision (d)(4)(B).
    (B) 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, is entitled to a hearing. At the 
hearing, the defense has the burden of establishing by a preponderance 
of the evidence the allegation of knowing and intentional 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 must be granted unless the search is otherwise 
lawful under these rules.
    (5) Burden and Standard of Proof.
    (A) In general. When the defense makes an appropriate motion or 
objection under this subdivision (d), the prosecution has the burden of 
proving by a preponderance of the evidence that the evidence was not 
obtained as a result of an unlawful search or seizure, that the 
evidence would have been obtained even if the unlawful search or 
seizure had not been made, or that the evidence was obtained by 
officials who reasonably and with good faith relied on the issuance of 
an authorization to search, seize, or apprehend or a search warrant or 
an arrest warrant.
    (B) Statement Following Apprehension. In addition to subdivision 
(d)(5)(A), a statement obtained from a person apprehended in a dwelling 
in violation R.C.M. 302(d)(2) and (e), is admissible if the prosecution 
shows by a preponderance of the evidence that the apprehension was 
based on probable cause, the statement was made at a location outside 
the dwelling subsequent to the apprehension, and the statement was 
otherwise in compliance with these rules.
    (C) Specific Grounds of Motion or Objection. When the military 
judge has required the defense to make a specific motion or objection 
under subdivision (d)(3), the burden on the prosecution extends only to 
the grounds upon which the defense moved to suppress or objected to the 
evidence.
    (6) 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 must 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.
    (7) Rulings. The military judge must rule, prior to plea, upon any 
motion to suppress or objection to evidence made prior to plea unless, 
for good cause, the military judge orders that the ruling be deferred 
for determination at trial or after findings. The military judge may 
not defer ruling if doing so adversely affects a party's right to 
appeal the ruling. The military judge must state essential findings of 
fact on the record when the ruling involves factual issues.
    (8) Informing the Members. If a defense motion or objection under 
this

[[Page 65068]]

rule is sustained in whole or in part, the court-martial members may 
not be informed of that fact except when the military judge must 
instruct the members to disregard evidence.
    (e) Effect of Guilty Plea. Except as otherwise expressly provided 
in R.C.M. 910(a)(2), 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 Mil. R. Evid. 311-317 with 
respect to the offense whether or not raised prior to plea.

Rule 312. Body Views and Intrusions

    (a) General Rule. Evidence obtained from body 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 Examination. Evidence obtained from a visual 
examination of the unclothed body is admissible if the person consented 
to the inspection in accordance with Mil. R. Evid. 314(e).
    (2) Involuntary Examination. Evidence obtained from an involuntary 
display of the unclothed body, including a visual examination of body 
cavities, is admissible only if the inspection was conducted in a 
reasonable fashion and authorized under the following provisions of the 
Military Rules of Evidence:
    (A) Inspections and inventories under Mil. R. Evid. 313;
    (B) Searches under Mil. R. Evid. 314(b) and 314(c) if there is a 
reasonable suspicion that weapons, contraband, or evidence of crime is 
concealed on the body of the person to be searched;
    (C) Searches incident to lawful apprehension under Mil. R. Evid. 
314(g);
    (D) Searches within jails and similar facilities under Mil. R. 
Evid. 314(h) if reasonably necessary to maintain the security of the 
institution or its personnel;
    (E) Emergency searches under Mil. R. Evid. 314(i); and
    (F) Probable cause searches under Mil. R. Evid. 315.
    (c) Intrusion into Body Cavities.
    (1) Mouth, Nose, and Ears. Evidence obtained from a reasonable 
nonconsensual physical intrusion into the mouth, nose, and ears is 
admissible under the same standards that apply to a visual examination 
of the body under subdivision (b).
    (2) Other Body Cavities. Evidence obtained from nonconsensual 
intrusions into other body cavities is admissible only if made in a 
reasonable fashion by a person with appropriate medical qualifications 
and if:
    (A) At the time of the intrusion there was probable cause to 
believe that a weapon, contraband, or other evidence of crime was 
present;
    (B) Conducted to remove weapons, contraband, or evidence of crime 
discovered under subdivisions (b) or (c)(2)(A) of this rule;
    (C) Conducted pursuant to Mil. R. Evid. 316(c)(5)(C);
    (D) Conducted pursuant to a search warrant or search authorization 
under Mil. R. Evid. 315; or
    (E) Conducted pursuant to Mil. R. Evid. 314(h) based on a 
reasonable suspicion that the individual is concealing a weapon, 
contraband, or evidence of crime.
    (d) Extraction of Body Fluids. Evidence obtained from nonconsensual 
extraction of body fluids is admissible if seized pursuant to a search 
warrant or a search authorization under Mil. R. Evid. 315. Evidence 
obtained from body fluid extractions made without such a warrant or 
authorization is admissible, not withstanding Mil. R. Evid. 315(g), 
only when probable cause existed at the time of extraction to believe 
that evidence of crime would be found and that the delay necessary to 
obtain a search warrant or search authorization could have resulted in 
the destruction of the evidence. Evidence obtained from involuntary 
extraction of body fluids is admissible only when executed in a 
reasonable fashion by a person with appropriate medical qualifications.
    (e) Other Intrusive Searches. Evidence obtained from a 
nonconsensual intrusive search of the body, other than searches 
described in subdivisions (c) or (d), conducted to locate or obtain 
weapons, contraband, or evidence of crime is admissible only if 
obtained pursuant to a search warrant or search authorization under 
Mil. R. Evid. 315 and conducted in a reasonable fashion by a person 
with appropriate medical qualifications in such a manner so as not to 
endanger the health of the person to be searched.
    (f) Intrusions for Valid Medical Purposes. Evidence or contraband 
obtained in the course of a medical examination or an intrusion 
conducted for a valid medical purpose is admissible. Such an 
examination or intrusion may not, for the purpose of obtaining evidence 
or contraband, exceed what is necessary for the medical purpose.
    (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 lawful inspections and 
inventories in the armed forces is admissible at trial when relevant 
and not otherwise inadmissible under these rules. Unlawful weapons, 
contraband, or other evidence of crime discovered during a lawful 
inspection or inventory may be seized and are admissible in accordance 
with this rule.
    (b) Lawful 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. Inspections must be conducted in a 
reasonable fashion and, if applicable, must comply with Mil. R. Evid. 
312. Inspections may utilize any reasonable natural or technological 
aid and may be conducted with or without notice to those inspected.
    (1) Purpose of Inspections. 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 airworthiness, sanitation and cleanliness; and that 
personnel are present, fit, and ready for duty. An order to produce 
body fluids, such as urine, is permissible in accordance with this 
rule.
    (2) Searches for Evidence. 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.
    (3) Examinations to Locate and Confiscate Weapons or Contraband.
    (A) An inspection may include an examination to locate and 
confiscate unlawful weapons and other contraband provided that the 
criteria set forth in this subdivision (b)(3)(B) are not implicated.
    (B) The prosecution must prove by clear and convincing evidence 
that the examination was an inspection within the meaning of this rule 
if a purpose of an examination is to locate weapons or contraband, and 
if:
    (i) The examination was directed immediately following a report of 
a specific offense in the unit,

[[Page 65069]]

organization, installation, vessel, aircraft, or vehicle and was not 
previously scheduled;
    (ii) Specific individuals are selected for examination; or
    (iii) Persons examined are subjected to substantially different 
intrusions during the same examination.
    (c) Lawful Inventories. An ``inventory'' is a reasonable 
examination, accounting, or other control measure used to account for 
or control property, assets, or other resources. It is administrative 
and not prosecutorial in nature; and if applicable, the inventory must 
comply with Mil. R. Evid. 312. 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 is admissible at trial when relevant and not 
otherwise inadmissible under these rules or the Constitution of the 
United States as applied to members of the armed forces.
    (b) Border Searches. Evidence from a border search for customs or 
immigration purposes authorized by a federal statute is admissible.
    (c) Searches Upon Entry to or Exit from United States 
Installations, Aircraft, and Vessels Abroad. In addition to inspections 
under Mil. R. Evid. 313(b), evidence is admissible when 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, has authorized appropriate 
personnel to search persons or the property of such persons upon entry 
to or exit from the installation, enclave, aircraft, or vessel to 
ensure the security, military fitness, or good order and discipline of 
the command. 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 (c).
    (d) Searches of Government Property. Evidence resulting from a 
search of government property without probable cause is admissible 
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. Normally 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. Evidence of a search conducted without probable 
cause is admissible if conducted 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 the 
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 and Standard of Proof. The prosecution must prove 
consent 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 consent, but it does not affect the 
standard of proof.
    (f) Searches Incident to a Lawful Stop.
    (1) Lawfulness. A stop is lawful when conducted by a person 
authorized to apprehend under R.C.M. 302(b) or others performing law 
enforcement duties and 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 stop must be temporary and investigatory in nature.
    (2) Stop and Frisk. Evidence is admissible if seized from a person 
who was lawfully stopped and who was frisked for weapons because he or 
she was reasonably believed to be armed and presently dangerous. 
Contraband or evidence that is located in the process of a lawful frisk 
may be seized.
    (3) Vehicles. Evidence is admissible if seized from the passenger 
compartment of a vehicle in which a person lawfully stopped is the 
driver or a passenger and if the official who made the stop has a 
reasonable belief that the person stopped is dangerous and may gain 
immediate control of a weapon.
    (g) Searches Incident to Apprehension.
    (1) General Rule. Evidence is admissible if seized in a search of a 
person who has been lawfully apprehended or if seized as a result of a 
reasonable protective sweep.
    (2) Search for Weapons and Destructible Evidence. A lawful search 
incident to apprehension may include a search for weapons or 
destructible evidence in the area within the immediate control of a 
person who has been apprehended. ``Immediate control'' means that area 
in which the individual searching could reasonably believe that the 
person apprehended could reach with a sudden movement to obtain such 
property.
    (3) Protective Sweep for Other Persons.
    (A) Area of Potential Immediate Attack. Apprehending officials may, 
incident to apprehension, as a precautionary matter and without 
probable cause or reasonable suspicion, look in closets and other 
spaces immediately adjoining the place of apprehension from which an 
attack could be immediately launched.
    (B) Wider Protective Sweep. When an apprehension takes place at a 
location in which another person might be present who might endanger 
the apprehending officials or others in the area of the apprehension, a 
search incident to arrest may lawfully include a reasonable examination 
of those spaces where a person might be found. Such a reasonable 
examination is lawful under this subdivision if the apprehending 
official has a reasonable suspicion based on specific and articulable 
facts that the area to be examined harbors an individual posing a 
danger to those in the area of the apprehension.
    (h) Searches within Jails, Confinement Facilities, or Similar 
Facilities. Evidence obtained from a search within a jail, confinement 
facility, or similar facility is admissible even if conducted without 
probable cause provided that it was authorized by persons with 
authority over the institution.
    (i) Emergency Searches to Save Life or for Related Purposes. 
Evidence obtained from emergency searches of persons or property 
conducted to save life, or for a

[[Page 65070]]

related purpose, is admissible provided that the search was conducted 
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. Evidence obtained from a 
search of an open field or woodland is admissible provided that the 
search was not unlawful within the meaning of Mil. R. Evid. 311.

Rule 315. Probable Cause Searches

    (a) General Rule. Evidence obtained from reasonable searches 
conducted pursuant to a search warrant or search authorization, or 
under the exigent circumstances described in this rule, is admissible 
at trial when relevant and not otherwise inadmissible under these rules 
or the Constitution of the United States as applied to members of the 
armed forces.
    (b) Definitions. As used in these rules:
    (1) ``Search authorization'' means 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'' means express permission to search and seize 
issued by competent civilian authority.
    (c) Scope of Search Authorization. A search authorization may be 
valid under this rule for a search of:
    (1) The physical person of anyone subject to military law or the 
law of war wherever found;
    (2) Military property of the United States or of nonappropriated 
fund activities of an armed force of the United States wherever 
located;
    (3) 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.
    (d) Who May Authorize. A search authorization under this rule is 
valid only if issued by an impartial individual in this subdivision 
(d)(1) and (d)(2). An otherwise impartial authorizing official does not 
lose the 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.
    (1) Commander. A commander 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; or
    (2) Military Judge or Magistrate. A military judge or magistrate if 
authorized under regulations prescribed by the Secretary of Defense or 
the Secretary concerned.
    (e) Who May Search.
    (1) Search Authorization. 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 forces, 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).
    (2) Search Warrants. Any civilian or military criminal investigator 
authorized to request search warrants pursuant to applicable law or 
regulation is authorized to serve and execute 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 federal statute.
    (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. A search authorization may be based upon hearsay evidence in 
whole or in part. A determination of probable cause under this rule 
will be based upon any or all of the following:
    (A) Written statements communicated to the authorizing officer;
    (B) Oral statements communicated to the authorizing official in 
person, via telephone, or by other appropriate means of communication; 
or
    (C) 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. Evidence obtained from a probable cause search is 
admissible without a search warrant or search authorization when 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. 
Military operational necessity may create an exigency by prohibiting or 
preventing com