Manual for Courts-Martial; Proposed Amendments, 15053-15086 [2012-6166]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Notices]
[Pages 15053-15086]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6166]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2011-OS-0112]


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of response to public comments on proposed amendments to 
the Military Rules of Evidence (M.R.E.) in the Manual for Courts-
Martial, United States (2008 ed.) (MCM).

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SUMMARY: The Joint Service Committee on Military Justice (JSC) is 
forwarding final proposed amendments to the Manual for Courts-Martial, 
United States (MCM) to the Department of Defense. The proposed changes 
constitute the 2012 revision of the Military Rules of Evidence (M.R.E.) 
in the MCM in accordance with DoD Directive 5500.17, ``Role and 
Responsibilities of the Joint Service Committee (JSC) on Military 
Justice,'' May 3, 2003. The proposed changes affect all the M.R.E. and 
are in conformity, to the extent practicable, with the Federal Rules of 
Evidence. 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.

ADDRESSES: Comments and materials received from the public are 
available for inspection or copying at the U.S. Army Office of the 
Judge Advocate General, Criminal Law Division, 2200 Army Pentagon, Room 
3B548, between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
Holidays.

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 Army Pentagon, Room 3B548, Washington DC 20310-2200, (571) 256-
8136, (571) 693-7368 fax, c.kennebeck@us.army.mil.

SUPPLEMENTARY INFORMATION: 

Background

    On October 19, 2011 (76 FR 65062-65093), the JSC published a Notice 
of Proposed Amendments to the Military Rules of Evidence contained 
within the Manual for Courts-Martial and a Notice of Public Meeting to 
receive comments on these proposals. The public meeting was held on 
November 17, 2011. No member of the public appeared. Several comments 
were received via electronic mail and were considered by the JSC.

Discussion of Comments and Changes

    The JSC considered each public comment, and after making minor 
modifications, the JSC is satisfied that the proposed amendments are 
appropriate to implement. The JSC will forward the public comments and 
proposed amendments to the Department of Defense.
    The public comments regarding the proposed changes follow:
    a. Commenter recommended that the JSC prepare and include comments 
for each M.R.E. similar to Committee Notes accompanying F.R.E. The 
notes contained in the Appendix 22, Analysis of the Military Rules of 
Evidence, are intended to serve the same purpose as the Committee 
Notes. In addition to the analysis in the MCM, the JSC prepared an 
Executive Summary of the amendments to the M.R.E. and a Word document 
using color-coded text and comments to explain amendments. Updated 
analysis is being prepared by the JSC and will be included in the next 
Executive Order; however, the analysis currently in the MCM will 
suffice until the MCM is updated to include both the amended M.R.E. and 
its amended analysis (projected in 2013).
    b. Commenter recommended that the revised M.R.E. 412 not limit its 
purpose to the privacy interests of a single affected victim. JSC 
removed reference to victim ``privacy'' and instead refers to M.R.E. 
403 (military judge determines what evidence is relevant and material 
and whether its probative value outweighs the danger of unfair 
prejudice). A new discussion lists ``ordinary countervailing 
interests'' for the military judge to consider, including, but not 
limited to, harassment of a victim.
    c. Commenter recommended renaming the title of M.R.E. 412(c)(3) 
from ``Privacy'' to ``Order'' because privacy is no longer part of the 
M.R.E. 412(c)(3) balancing test. The JSC renamed the subsection from 
``Privacy'' to ``Scope'' because it addresses the scope of admissible 
evidence as determined by the military judge's order.

[[Page 15054]]

    d. Commenter recommended adding a more specific definition of 
``sexual behavior'' in M.R.E. 412 to give practitioners specific 
guidance on what behavior is intended by the rule. The JSC rejected 
this proposal in recognition that the term ``sexual behavior'' should 
be left intentionally broad as it is designed to protect acts beyond 
those which can reasonably be described in a narrow definition.
    e. Commenter recommended revising the discussion under M.R.E. 
412(c)(3) to eliminate reference to a victim's privacy rights in 
conformity with United States v. Gaddis, which held that the accused's 
constitutional right to present certain evidence cannot be limited by a 
victim's privacy interests. The JSC addressed this concern by amending 
subsection (c)(3) similar to a its 2005 version and by revising the 
discussion in conformity with recent jurisprudence to properly reflect 
the balance between an accused's constitutional rights and the 
countervailing interests that must be weighed before admitting 
evidence.
    f. Commenter recommended using the words ``pursuant to statutory 
authority'' in M.R.E. 807. JSC disagreed and defined the applicable 
provisions when hearsay would not apply to ``a federal statue 
applicable in trial by courts-martial.''
    g. Commenter recommended that M.R.E. 804(b)(3)(B) be amended to 
include circumstances in which evidence is presented to inculpate the 
accused, rather than limiting it to evidence presented to exculpate the 
accused. JSC disagreed, and retained the provision in the rule, 
intended to differentiate from the Federal Rule.
    h. Commenter recommended removing the phrase ``on the merits'' from 
proposed M.R.E. 301(c) to ensure limited waiver of accused's right 
against self-incrimination when testifying applies during sentencing. 
The JSC removed ``on the merits,'' making the rule consistent with the 
prior 301(e) which did not have such language, and preventing 
unintentional limitation of the rule to findings.
    i. Commenter recommended removing the word ``allegedly'' from 
proposed M.R.E. 304(b)(2) because its usage in this section is 
unnecessarily confusing when ``allegedly'' is not used elsewhere. The 
JSC removed ``allegedly'' from 304(b)(2) and added it to 304(b), 
capturing the intent of the rule to preclude use of challenged evidence 
unless it met one of three criteria. The JSC also removed the word 
``derivative'' from 304(b)(2) to eliminate internal contradiction 
within the exception, and make the rule consistent with its prior 
iteration.
    j. Commenter recommended removal of proposed M.R.E. 704(b) which 
precludes a psychiatrist from offering an opinion about the defendant's 
responsibility. JSC agreed and removed the proposed subdivision which 
is consistent with the drafting of current M.R.E. 704.
    k. Commenter recommended replacing the word ``belief'' with the 
word ``suspicion'' in M.R.E. 314(f)(2). JSC agreed; amended 
accordingly; and added discussion to address stop and frisk.
    l. Commenter recommended that the word ``waiver'' be replaced with 
the word ``forfeiture'' in M.R.E. 304(f)(1), 311(d)(2)(A), and 
317(d)(2). JSC agreed and amended accordingly.
    c. Commenter recommended amending R.C.M. 704(b) to clarify what is 
meant by ``future crimes.'' JSC will consider this recommendation as a 
new proposal as it outside the scope of the F.R.E. conforming stylistic 
revisions and would require more detailed research.
    m. Commenter noted that amended language in M.R.E 402(a)(2) and 
M.R.E. 802 was potentially confusing. In conformity with F.R.E. 
amendment, the JSC had changed ``acts of Congress'' to ``federal 
statute.'' As a result of the comment, the text ``members of the armed 
forces'' and ``trial by court-martial'' was included in the M.R.E. to 
clearly delineate the scope of the Rules.
    n. Commenter recommended that M.R.E. 611(d)(3) be amended to 
satisfy the constitutional standard for confrontation in Maryland v. 
Craig, 497 U.S. 836 (1990). JSC added the three-part-test of U.S. v. 
Pack, 65 M.J. 381 (C.A.A.F. 2007), referring to Maryland v. Craig, to 
M.R.E. 611(d)(3).
    o. Commenter noted the shift in verb tense in M.R.E. 313(a). JSC 
corrected the discrepancy.
    p. Commenter noted that the first and last sentence of M.R.E. 
312(d) appear redundant and inconsistent. JSC replaced the word 
``involuntary'' to consistently and uniformly refer to 
``nonconsensual'' extraction of body fluids and will address the change 
when revising Appendix 22, Analysis of the Military Rules of Evidence.
    q. Commenter recommended that the drafter's analysis of M.R.E. 313 
be amended to better define ``appropriate supervisory position.'' JSC 
will address this issue when revising Appendix 22, Analysis of the 
Military Rules of Evidence.
    r. Commenter recommended changing the definition of probable cause 
to ``a search where there is a reasonable belief that the person, 
property, or evidence sought might be located'' from current language 
of ``is located'' in M.R.E. 315(f)(2). JSC did not adopt the 
recommended change because case law indicates that both definitions are 
acceptable and therefore no change was needed. The JSC will address 
when revising Appendix 22, Analysis of the Military Rules of Evidence.
    s. Commenter recommended in M.R.E. 315(g) clarifying circumstances 
when exigency would allow officers to enter a residence without a 
warrant. JSC agreed with recommendation and will address it when 
revising Appendix 22, Analysis of the Military Rules of Evidence.
    t. Commenter noted in M.R.E. 316(c)(4) subdivision (e) was 
mislabeled (d). JSC amended accordingly.
    u. Commenter recommended clarification in M.R.E. 316(b)(5)(C) 
regarding what it means to ``observe something in a reasonable 
fashion,'' and clarification of when an officer can seize an item in 
plain view. JSC agreed with recommendation that clarification is needed 
and will provide discussion, case citations, and examples when revising 
Appendix 22, Analysis of the Military Rules of Evidence.
    v. Commenter recommended clarification in M.R.E. 317(b) and (c) to 
specifically address one-party, consent phone calls. JSC did not take 
action because this rule addresses wire intercepts, not pretext phone 
calls.
    w. Commenter recommended changing M.R.E. 314(c) to allow 
inspections conducted on military installations, rather than just at 
entry and exit. JSC did not make the recommended change because there 
is no specific case law permitting such an unrestricted practice, other 
than entry and exit points, and it too drastically narrows an 
individual's privacy interest while on a military installation.
    x. Commenter recommended clarification in M.R.E. 314(e)(2) 
regarding dual consent when a physically present resident has told the 
officers that they may not search the property. JSC agreed with 
recommendation that clarification is needed and will address this issue 
when revising Appendix 22, Analysis of the Military Rules of Evidence.
    y. Commenter recommended amending the phrase ``criminal activity is 
afoot'' in M.R.E. 314(f)(1) because it is antiquated. JSC did not adopt 
recommended change because it believed that ``afoot'' accurately 
describes the standard and is consistent with relevant jurisprudence.
    z. Commenter recommended changing the language in M.R.E. 314(f)(2) 
from ``reasonably believed to be armed'' to ``reasonably suspected of 
being armed'' with regard to a lawful investigatory

[[Page 15055]]

stop. JSC adopted the recommended change, and added a Discussion under 
the rule to further address the standard.
    aa. Commenter recommended clarifying in M.R.E. 314(f)(3) the 
automobile ``pat-down'' rule because it was oversimplified as written. 
JSC agreed, made changes to the rule and added a discussion to further 
address the standard.
    bb. Commenter recommended amending MRE 314(g)(2) to more accurately 
capture the holding in Arizona v. Gant, 129 S.Ct. 1710 (2009). JSC 
agreed with the recommendation and added discussion under the rule to 
clarify the standard.
    cc. Commenter recommended clarification in M.R.E. 314(g)(3)(B) 
regarding the application of the wider protective sweep rule. JSC 
agreed with recommendation and will address it in when revising 
Appendix 22, Analysis of the Military Rules of Evidence.
    dd. Commenter recommended a discussion be added to M.R.E. 314 to 
address when exigent circumstances permit officers to search without a 
warrant. JSC did not add a discussion because the topic is covered in 
MRE 315(g).
    ee. Commenter recommended M.R.E. 305(a)(2) differentiate between 
pre-invocation statements, and post-invocation statements. JSC added 
the words ``after such request'' following ``interrogation'' to 
establish a temporal boundary for admissibility which was required 
after rewording the rule in terms of admissibility and changing passive 
to active voice.
    ff. Commenter recommended a clear statement in M.R.E. 305(a)(3) 
relating to whether the intention was to make the rule more restrictive 
than required under the Sixth Amendment. JSC will address when revising 
Appendix 22, Analysis of the Military Rules of Evidence.
    gg. Commenter recommended a clear statement in M.R.E. 305(e)(1) 
relating to whether the intention was to make the rule more restrictive 
than required under Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). JSC 
acknowledged the higher standard, but left the language unchanged. JSC 
will address when revising Appendix 22, Analysis of the Military Rules 
of Evidence.
    hh. Commenter recommended that the order of provisions and 
numbering of rules remain the same for ease of research and 
consistency. Although JSC agreed, certain rules and provisions were 
moved to better reflect the natural flow of evidence and to simplify 
the rules.
    ii. Commenter recommended that Section 3 not be amended to 
alleviate conduct-based guidance, arguing that many rules are 
specifically intended to proscribe or prescribe specific conduct. 
Although JSC agreed on principle, some conduct-based provisions were 
moved to discussion paragraphs and some Section 3 rules were amended to 
address admissibility rather than conduct.
    jj. Commenter recommended that discussion not be used in the M.R.E. 
because it would be a new practice and could confuse practitioners when 
discerning what authority should be given to discussion content. JSC 
disagreed, but added an introductory discussion to address the purpose 
of the newly added M.R.E. discussion paragraphs. See discussion 
following M.R.E. 101(c). Discussion is commonly used in the MCM and its 
treatise-like purpose is well understood. See Appendix 21, Analysis of 
the Rules for Courts-Martial.
    kk. Commenter recommended moving the definitions contained within a 
specific rule to the beginning of the rule. JSC agreed and amended 
accordingly.
    ll. Commenter recommended retaining the elements of Article 31 
within M.R.E. 305(c)(1) and using the word ``Warnings'' in the title. 
JSC agreed and amended accordingly.
    mm. Commenter recommended that Miranda warnings be specifically 
included within the text of the rule. JSC agreed, but will instead 
address the Miranda warnings fully in Appendix 22, Analysis of the 
Military Rules of Evidence.
    nn. Commenter recommended that M.R.E. 305 should address the 
procedure to be used when the right to counsel or the right to remain 
silent is invoked. JSC determined that the rule adequately provided 
guidance to practitioners, but will address the issue when revising 
Appendix 22, Analysis of the Military Rules of Evidence.
    oo. Commenter recommended that M.R.E. 305(d) should be titled 
``Presence of Counsel'' instead of ``Provision for Counsel''. JSC 
agreed and amended accordingly.
    pp. Commenter recommended that the word ``answer'' in M.R.E. 301(d) 
be changed to ``response'' to more accurately focus on the fact the 
answer must be made in response to the question. JSC disagreed, but 
will address the issue when revising Appendix 22, Analysis of the 
Military Rules of Evidence.
    qq. Commenter recommended leaving the term ``rules prescribed by 
the Supreme Court pursuant to statutory authority'' in M.R.E. 
402(a)(5). JSC disagreed and modified the definition to better conform 
with UCMJ jurisdiction.
    rr. Commenter recommended adding the words ``in the armed forces'' 
to the definition of ``community'' in M.R.E. 405(d) and to keep its 
current phrasing. JSC agreed and amended accordingly.

Proposed Amendments After Period for Public Comment

    The proposed revision to the M.R.E. to be forwarded through the DoD 
for action by Executive Order of the President of the United States are 
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.

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

[[Page 15056]]

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.
    (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 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,

[[Page 15057]]

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 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 allegedly 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 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

[[Page 15058]]

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.
    (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 forfeiture 
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

[[Page 15059]]

involuntary and will be treated under Mil. R. Evid. 304.
    (b) Definitions. As used in this rule:
    (1) ``Person subject to the code'' means a person subject to the 
Uniform Code of Military Justice as contained in Chapter 47 of Title 
10, United States Code. This term includes, for purposes of subdivision 
(c) of this rule, a knowing agent of any such person or of a military 
unit.
    (2) ``Interrogation'' means any formal or informal questioning in 
which an incriminating response either is sought or is a reasonable 
consequence of such questioning.
    (3) ``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.
    (c) Warnings Concerning the Accusation, Right to Remain Silent, and 
Use of Statements.
    (1) Article 31 Rights Warnings. 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). Pursuant to Article 31, a person subject 
to the code may not interrogate or request any statement from an 
accused or a person suspected of an offense without first:
    (A) Informing the accused or suspect of the nature of the 
accusation;
    (B) Advising the accused or suspect that the accused or suspect has 
the right to remain silent; and
    (C) 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.
    (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 after such request, or evidence 
derived from the interrogation after such request, 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 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) Exercise of Rights. If a person chooses to exercise the 
privilege against self-incrimination, questioning must cease 
immediately. If a person who is subjected to interrogation under the 
circumstances described in subdivisions (c)(2) or (c)(3) of this rule 
chooses to exercise the right to counsel, questioning must cease until 
counsel is present.
    (d) Presence 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 and must be present 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) 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 
affirmatively decline 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.
    (f) 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

[[Page 15060]]

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
    (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 forfeiture 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

[[Page 15061]]

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 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 nonconsensual extraction of body fluids 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 nonconsensual 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. An unlawful weapon, 
contraband, or other evidence of a crime discovered during a lawful 
inspection or inventory may be seized and is 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

[[Page 15062]]

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, 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 suspected to be armed and dangerous. Contraband or 
evidence that is located in the process of a lawful frisk may be 
seized.
    (3) Vehicles. Evidence is admissible if seized in the course of a 
search for weapons 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 suspicion 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.

[[Page 15063]]

    (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 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

[[Page 15064]]

preventing communication with a person empowered to grant a search 
authorization.

Rule 316. Seizures

    (a) General Rule. Evidence obtained from reasonable seizures 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) Apprehension. Apprehension is governed by R.C.M. 302.
    (c) Seizure of Property or Evidence.
    (1) Based on Probable Cause. Evidence is admissible when seized 
based on 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.
    (2) 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.
    (3) Consent. Property or evidence may be seized with consent 
consistent with the requirements applicable to consensual searches 
under Mil. R. Evid. 314.
    (4) Government Property. Government property may be seized without 
probable cause and without a search warrant or search authorization by 
any person listed in subdivision (d), unless the person to whom the 
property is issued or assigned has a reasonable expectation of privacy 
therein, as provided in Mil. R. Evid. 314(d), at the time of the 
seizure.
    (5) Other Property. Property or evidence not included in paragraph 
(1)-(4) may be seized for use in evidence by any person listed in 
subdivision (d) if:
    (A) Authorization. The person is authorized to seize the property 
or evidence by a search warrant or a search authorization under Mil. R. 
Evid. 315;
    (B) Exigent Circumstances. The person has probable cause to seize 
the property or evidence and under Mil. R. Evid. 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.
    (6) Temporary Detention. Nothing in this rule prohibits temporary 
detention of property on less than probable cause when authorized under 
the Constitution of the United States.
    (d) Who May 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 forces, 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.
    (e) Other Seizures. Evidence obtained from a seizure not addressed 
in this rule is admissible provided that its seizure was permissible 
under the Constitution of the United States as applied to members of 
the armed forces.

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 Mil. R. Evid. 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 federal statute applicable to members of the armed 
forces.
    (b) When Authorized by Court Order. Evidence from the interception 
of wire or oral communications is admissible when authorized pursuant 
to an application to a federal judge of competent jurisdiction under 
the provisions of a federal statute.
    (c) Regulations. Notwithstanding any other provision of these 
rules, evidence obtained by members of the armed forces or their agents 
through interception of wire or oral communications for law enforcement 
purposes is not admissible unless such interception:
    (1) Takes place in the United States and is authorized under 
subdivision (b);
    (2) Takes place outside the United States and is authorized under 
regulations issued by the Secretary of Defense or the Secretary 
concerned; or
    (3) Is authorized under regulations issued by the Secretary of 
Defense or the Secretary concerned and is not unlawful under applicable 
federal statutes.

Rule 321. Eyewitness Identification

    (a) General Rule. 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's testimony as to identity even 
if the credibility of the witness has not been attacked directly, 
subject to appropriate objection under this rule.
    (b) When Inadmissible. 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:
    (1) The identification is the result of an unlawful lineup or other 
unlawful identification process, as defined in subdivision (c), 
conducted by the United States or other domestic authorities and the 
accused makes a timely motion to suppress or an objection to the 
evidence under this rule; or
    (2) 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 the 
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.
    (c) Unlawful Lineup or Identification Process.
    (1) Unreliable. A lineup or other identification process is 
unreliable, and therefore unlawful, if the lineup or other 
identification process is so suggestive as to create a substantial 
likelihood of misidentification.
    (2) In Violation of Right to Counsel. A lineup is unlawful if it is 
conducted in violation of the accused's 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 R.C.M. 304 for the offense under investigation, the accused is 
required by persons subject to the code or their agents to participate 
in a lineup for the purpose of identification. When a person entitled 
to counsel under this rule requests counsel, a judge advocate or a 
person certified in accordance with Article 27(b) will 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

[[Page 15065]]

the waiver is freely, knowingly, and intelligently made.
    (B) Nonmilitary Lineups. When a person subject to the code is 
required to participate in 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 subdivision (2)(A) do not apply, the person's 
entitlement to counsel 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 lineups.
    (d) Motions to Suppress and Objections.
    (1) Disclosure. Prior to arraignment, the prosecution must disclose 
to the defense all evidence of, or derived from, a prior identification 
of the accused as a lineup or other identification process that it 
intends to offer into evidence against the accused at trial.
    (2) Time Requirement. When such evidence has been disclosed, any 
motion to suppress or objection under this rule 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 constitutes a forfeiture of the motion or objection.
    (3) Continuing Duty. If the prosecution intends to offer such 
evidence and the evidence was not disclosed prior to arraignment, the 
prosecution must 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.
    (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 
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.
    (5) 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 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.
    (6) Burden and Standard of Proof. When the defense has raised 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 object to the evidence.
    (A) Right to Counsel.
    (i) Initial Violation of Right to Counsel at a Lineup. When the 
accused 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.
    (ii) Identification Subsequent to a Lineup Conducted in Violation 
of the Right to Counsel. 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.
    (B) Unreliable Identification.
    (i) Initial Unreliable Identification. When an objection raises the 
issue of an unreliable identification, the prosecution must prove by a 
preponderance of the evidence that the identification was reliable 
under the circumstances.
    (ii) Identification Subsequent to an Unreliable Identification. 
When the military judge determines that an identification is the result 
of an unreliable identification, a later identification may be admitted 
if the prosecution proves by clear and convincing evidence that the 
later identification is not the result of the inadmissible 
identification.
    (7) Rulings. A motion to suppress or an objection to evidence made 
prior to plea under this rule will 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 will 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 
will state his or her essential findings of fact on the record.
    (e) Effect of Guilty Pleas. 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 this rule with respect to 
that offense whether or not raised prior to the plea.

Rule 401. Test for Relevant Evidence

    Evidence is relevant if:
    (a) It has any tendency to make a fact more or less probable than 
it would be without the evidence; and
    (b) The fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

    (a) Relevant evidence is admissible unless any of the following 
provides otherwise:
    (1) The United States Constitution as it applies to members of the 
armed forces;
    (2) A federal statute applicable to trial by courts-martial;
    (3) These rules; or
    (4) This Manual.
    (b) Irrelevant evidence is not admissible.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste 
of Time, or Other Reasons

    The military judge may exclude relevant evidence if its probative 
value is substantially outweighed by a danger of one or more of the 
following: Unfair prejudice, confusing the issues, misleading the 
members, undue delay, wasting time, or needlessly presenting cumulative 
evidence.

Rule 404. Character Evidence; Crimes or Other Acts

    (a) Character Evidence.
    (1) Prohibited Uses. Evidence of a person's character or character 
trait is not admissible to prove that on a particular occasion the 
person acted in accordance with the character or trait.
    (2) Exceptions for an Accused or Victim.
    (A) The accused may offer evidence of the accused's pertinent 
trait, and if the evidence is admitted, the prosecution may offer 
evidence to rebut it.
    (B) Subject to the limitations in Mil. R. Evid. 412, the accused 
may offer

[[Page 15066]]

evidence of an alleged victim's pertinent trait, and if the evidence is 
admitted, the prosecution may:
    (i) Offer evidence to rebut it; and
    (ii) Offer evidence of the accused's same trait; and
    (C) In a homicide or assault case, the prosecution may offer 
evidence of the alleged victim's trait of peacefulness to rebut 
evidence that the victim was the first aggressor.
    (3) Exceptions for a Witness. Evidence of a witness's character may 
be admitted under Mil R. Evid. 607, 608, and 609.
    (b) Crimes, Wrongs, or Other Acts.
    (1) Prohibited Uses. Evidence of a crime, wrong, or other act is 
not admissible to prove a person's character in order to show that on a 
particular occasion the person acted in accordance with the character.
    (2) Permitted Uses; Notice. This evidence may be admissible for 
another purpose, such as proving motive, opportunity, intent, 
preparation, plan, knowledge, identity, absence of mistake, or lack of 
accident. On request by the accused, the prosecution must:
    (A) Provide reasonable notice of the general nature of any such 
evidence that the prosecution intends to offer at trial; and
    (B) Do so before trial--or during trial if the military judge, for 
good cause, excuses lack of pretrial notice.

Rule 405. Methods of Proving Character

    (a) By Reputation or Opinion. When evidence of a person's character 
or character trait is admissible, it may be proved by testimony about 
the person's reputation or by testimony in the form of an opinion. On 
cross-examination of the character witness, the military judge may 
allow an inquiry into relevant specific instances of the person's 
conduct.
    (b) By Specific Instances of Conduct. When a person's character or 
character trait is an essential element of a charge, claim, or defense, 
the character or trait may also be proved by relevant specific 
instances of the person's conduct.
    (c) By Affidavit. 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 a person's habit or an organization's routine practice 
may be admitted to prove that on a particular occasion the person or 
organization acted in accordance with the habit or routine practice. 
The military judge may admit this evidence regardless of whether it is 
corroborated or whether there was an eyewitness.

Rule 407. Subsequent Remedial Measures

    (a) When measures are taken that would have made an earlier injury 
or harm less likely to occur, evidence of the subsequent measures is 
not admissible to prove:
    (1) Negligence;
    (2) Culpable conduct;
    (3) A defect in a product or its design; or
    (4) A need for a warning or instruction.
    (b) The military judge may admit this evidence for another purpose, 
such as impeachment or--if disputed--proving ownership, control, or the 
feasibility of precautionary measures.

Rule 408. Compromise Offers and Negotiations

    (a) Prohibited Uses. Evidence of the following is not admissible--
on behalf of any party--either to prove or disprove the validity or 
amount of a disputed claim or to impeach by a prior inconsistent 
statement or a contradiction:
    (1) Furnishing, promising, or offering--or accepting, promising to 
accept, or offering to accept--a valuable consideration in order to 
compromise the claim; and
    (2) Conduct or a statement made during compromise negotiations 
about the claim--except when the negotiations related to a claim by a 
public office in the exercise of its regulatory, investigative, or 
enforcement authority.
    (b) Exceptions. The military judge may admit this evidence for 
another purpose, such as proving witness bias or prejudice, negating a 
contention of undue delay, or proving an effort to obstruct a criminal 
investigation or prosecution.

Rule 409. Offers To Pay Medical and Similar Expenses

    Evidence of furnishing, promising to pay, or offering to pay 
medical, hospital, or similar expenses resulting from an injury is not 
admissible to prove liability for the injury.

Rule 410. Pleas, Plea Discussions, and Related Statements

    (a) Prohibited Uses. Evidence of the following is not admissible 
against the accused who made the plea or participated in the plea 
discussions:
    (1) A guilty plea that was later withdrawn;
    (2) A nolo contendere plea;
    (3) Any statement made in the course of any judicial inquiry 
regarding either of the foregoing pleas; or
    (4) Any statement made during plea discussions with the convening 
authority, staff judge advocate, trial counsel or other counsel for the 
Government if the discussions did not result in a guilty plea or they 
resulted in a later-withdrawn guilty plea.
    (b) Exceptions. The military judge may admit a statement described 
in subdivision (a)(3) or (a)(4):
    (1) When another statement made during the same plea or plea 
discussions has been introduced, if in fairness the statements ought to 
be considered together; or
    (2) In a proceeding for perjury or false statement, if the accused 
made the statement under oath, on the record, and with counsel present.
    (c) Request for Administrative Disposition. A ``statement made 
during plea discussions'' 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 to prove whether the person acted negligently or 
otherwise wrongfully. The military judge may admit this evidence for 
another purpose, such as proving witness bias or prejudice or proving 
agency, ownership, or control.

Rule 412. Sex Offense Cases: The Victim's Sexual Behavior or 
Predisposition

    (a) Prohibited Uses. The following evidence is not admissible in 
any proceeding involving an alleged sexual offense:

[[Page 15067]]

    (1) Evidence offered to prove that a victim engaged in other sexual 
behavior; or
    (2) Evidence offered to prove a victim's sexual predisposition.
    (b) Exceptions. The military judge may admit the following 
evidence:
    (1) Evidence of specific instances of a victim's sexual behavior, 
if offered to prove that a person other than the accused was the source 
of semen, injury, or other physical evidence;
    (2) Evidence of specific instances of a victim's sexual behavior 
with respect to the accused, if offered by the accused to prove consent 
or if offered by the prosecution; and
    (3) Evidence the exclusion of which would violate the accused's 
constitutional rights.
    (c) Procedure to Determine Admissibility.
    (1) Motion. If a party intends to offer evidence under Rule 412(b), 
the party must:
    (A) File a motion that specifically describes the evidence and 
states the purpose for which it is to be offered;
    (B) Do so at least 5 days prior to entry of pleas unless the 
military judge, for good cause, sets a different time;
    (C) Serve the motion on all parties; and
    (D) Notify the victim or, when appropriate, the victim's guardian 
or representative.
    (2) Hearing. Before admitting evidence under this rule, the 
military judge must conduct a hearing pursuant to Article 39(a) which 
must be closed to the public and outside the presence of the members. 
At this hearing, the parties may call witnesses, including the victim, 
and offer relevant evidence. The victim must be afforded a reasonable 
opportunity to attend and be heard. Unless the military judge orders 
otherwise, the motion, related materials, and the record of the hearing 
must be and remain sealed in accordance with R.C.M. 1103A.
    (3) Scope. If the military judge determines on the basis of the 
hearing described in paragraph (2) of this subdivision that the 
evidence that 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 that may be 
offered and areas with respect to which the victim or witness may be 
questioned.
    (d) Definitions. As used in this rule:
    (1) ``Sexual behavior'' means any sexual behavior not encompassed 
by the alleged offense.
    (2) ``Sexual offense'' means any sexual misconduct punishable under 
the Uniform Code of Military Justice, federal law or state law.
    (3) ``Sexual predisposition'' means a victim's mode of dress, 
speech, or lifestyle, that may have a sexual connotation for the 
factfinder, but that does not directly relate to sexual activities or 
thoughts.
    (4) ``Victim'' includes an alleged victim.

Rule 413. Similar Crimes in Sexual Offense Cases

    (a) Permitted Uses. In a court-martial proceeding for a sexual 
offense, the military judge may admit evidence that the accused 
committed any other sexual offense. The evidence may be considered on 
any matter to which it is relevant.
    (b) Disclosure to the Accused. If the prosecution intends to offer 
this evidence, the prosecution must disclose it to the accused, 
including any witnesses' statements or a summary of the expected 
testimony. The prosecution must do so at least 5 days prior to entry of 
pleas or at a later time that the military judge allows for good cause.
    (c) Effect on Other Rules. This rule does not limit the admission 
or consideration of evidence under any other rule.
    (d) Definition. As used in this rule, ``sexual offense'' means an 
offense punishable under the Uniform Code of Military Justice, or a 
crime under federal or state law (as ``state'' is defined in 18 U.S.C. 
Sec.  513), involving:
    (1) Any conduct prohibited by Article 120;
    (2) Any conduct prohibited by 18 U.S.C. chapter 109A;
    (3) Contact, without consent, between any part of the accused's 
body--or an object--and another person's genitals or anus;
    (4) Contact, without consent, between the accused's genitals or 
anus and any part of another person's body;
    (5) Deriving sexual pleasure or gratification from inflicting 
death, bodily injury, or physical pain on another person; or
    (6) An attempt or conspiracy to engage in conduct described in 
subdivisions (1)-(5).

Rule 414. Similar Crimes in Child-Molestation Cases

    (a) Permitted Uses. In a court-martial proceeding in which an 
accused is charged with an act of child molestation, the military judge 
may admit evidence that the accused committed any other offense of 
child molestation. The evidence may be considered on any matter to 
which it is relevant.
    (b) Disclosure to the Accused. If the prosecution intends to offer 
this evidence, the prosecution must disclose it to the accused, 
including witnesses' statements or a summary of the expected testimony. 
The prosecution must do so at least 5 days prior to entry of pleas or 
at a later time that the military judge allows for good cause.
    (c) Effect on Other Rules. This rule does not limit the admission 
or consideration of evidence under any other rule.
    (d) Definitions. As used in this rule:
    (1) ``Child'' means a person below the age of 16; and
    (2) ``Child molestation'' means an offense punishable under the 
Uniform Code of Military Justice, or a crime under federal law or under 
state law (as ``state'' is defined in 18 U.S.C. 513), that involves:
    (A) Any conduct prohibited by Article 120 and committed with a 
child;
    (B) Any conduct prohibited by 18 U.S.C. chapter 109A and committed 
with a child;
    (C) Any conduct prohibited by 18 U.S.C. chapter 110;
    (D) Contact between any part of the accused's body--or an object--
and a child's genitals or anus;
    (E) Contact between the accused's genitals or anus and any part of 
a child's body;
    (F) Deriving sexual pleasure or gratification from inflicting 
death, bodily injury, or physical pain on a child; or
    (G) An attempt or conspiracy to engage in conduct described in 
subdivisions (A)-(F).

Rule 501. Privilege in General

    (a) A person may not claim a privilege with respect to any matter 
except as required by or provided for in:
    (1) The United States Constitution as applied to members of the 
armed forces;
    (2) A federal statute applicable to trials by courts-martial;
    (3) These rules;
    (4) This Manual; or
    (4) The principles of common law generally recognized in the trial 
of criminal cases in the United States district courts under 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

[[Page 15068]]

    (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. 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) ``Client'' means 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) ``Lawyer'' means 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) ``Lawyer's representative'' means 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 any of 
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 the 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. 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) ``Clergyman'' means 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) ``Clergyman's assistant'' means a person employed by or 
assigned to assist a clergyman in his capacity as a spiritual advisor.
    (3) 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 the Marriage.
    (1) General Rule. 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. As used in this rule, 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

[[Page 15069]]

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) To 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) To 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 
Article 133 or 134, with importing the other spouse as an alien for 
prostitution or other immoral purpose in violation of 18 U.S.C. 1328; 
with transporting the other spouse in interstate commerce for immoral 
purposes or other offense in violation of 18 U.S.C. 2421-2424; 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.
    (D) Where both parties have been substantial participants in 
illegal activity, those communications between the spouses during the 
marriage regarding the illegal activity in which they have jointly 
participated are not marital communications for purposes of the 
privilege in subdivision (b), and are not entitled to protection under 
the privilege in subdivision (b).
    (d) Definitions. As used in this rule:
    (1) ``A child of either'' means a biological child, adopted child, 
or ward of one of the spouses and includes a child who is under the 
permanent or temporary physical custody of one of the spouses, 
regardless of the existence of a legal parent-child relationship. For 
purposes of this rule only, a child is:
    (A) An individual under the age of 18; or
    (B) An individual with a mental handicap who functions under the 
age of 18.
    (2) ``Temporary physical custody'' means a parent has entrusted his 
or her child with another. There is no minimum amount of time necessary 
to establish temporary physical custody, nor is a written agreement 
required. Rather, the focus is on the parent's agreement with another 
for assuming parental responsibility for the child. For example, 
temporary physical custody may include instances where a parent 
entrusts another with the care of their child for recurring care or 
during absences due to temporary duty or deployments.

Rule 505. Classified Information

    (a) General Rule. Classified information must be protected and is 
privileged from disclosure if disclosure would be detrimental to the 
national security. Under no circumstances may a military judge order 
the release of classified information to any person not authorized to 
receive such information. The Secretary of Defense may prescribe 
security procedures for protection against the compromise of classified 
information submitted to courts-martial and appellate authorities.
    (b) Definitions. As used in this rule:
    (1) ``Classified information'' means any information or material 
that has been determined by the United States Government pursuant to an 
executive order, statute, or regulations, to require protection against 
unauthorized disclosure for reasons of national security, and any 
restricted data, as defined in 42 U.S.C. 2014(y).
    (2) ``National security'' means the national defense and foreign 
relations of the United States.
    (3) ``In camera hearing'' means a session under Article 39(a) from 
which the public is excluded.
    (4) ``In camera review'' means an inspection of documents or other 
evidence conducted by the military judge alone in chambers and not on 
the record.
    (5) ``Ex parte'' means a discussion between the military judge and 
either the defense counsel or prosecution, without the other party or 
the public present. This discussion can be on or off the record, 
depending on the circumstances. The military judge will grant a request 
for an ex parte discussion or hearing only after finding that such 
discussion or hearing is necessary to protect classified information or 
other good cause. Prior to granting a request from one party for an ex 
parte discussion or hearing, the military judge must provide notice to 
the opposing party on the record. If the ex parte discussion is 
conducted off the record, the military judge should later state on the 
record that such ex parte discussion took place and generally summarize 
the subject matter of the discussion, as appropriate.
    (c) Access to Evidence. Any information admitted into evidence 
pursuant to any rule, procedure, or order by the military judge must be 
provided to the accused.
    (d) Declassification. Trial counsel should, when practicable, seek 
declassification of evidence that may be used at trial, consistent with 
the requirements of national security. A decision not to declassify 
evidence under this section is not subject to review by a military 
judge or upon appeal.
    (e) Action Prior to Referral of Charges.
    (1) Prior to referral of charges, upon a showing by the accused 
that the classified information sought is relevant and necessary to an 
element of the offense or a legally cognizable defense, the convening 
authority must respond in writing to a request by the accused for 
classified information if the privilege in this rule is claimed for 
such information. In response to such a request, the convening 
authority may:
    (A) Delete specified items of classified information from documents 
made available to the accused;
    (B) Substitute a portion or summary of the information for such 
classified documents;
    (C) Substitute a statement admitting relevant facts that the 
classified information would tend to prove;
    (D) Provide the document subject to conditions that will guard 
against the compromise of the information disclosed to the accused; or
    (E) Withhold disclosure if actions under (A) through (D) cannot be 
taken without causing identifiable damage to the national security.
    (2) An Article 32 investigating officer may not rule on any 
objection by the accused to the release of documents or information 
protected by this rule.
    (3) Any objection by the accused to withholding of information or 
to the conditions of disclosure must be raised through a motion for 
appropriate relief at a pretrial conference.
    (f) Actions after Referral of Charges.
    (1) Pretrial Conference. At any time after referral of charges, any 
party may move for a pretrial conference under

[[Page 15070]]

Article 39(a) to consider matters relating to classified information 
that may arise in connection with the trial. Following such a motion, 
or when the military judge recognizes the need for such conference, the 
military judge must promptly hold a pretrial conference under Article 
39(a).
    (2) Ex Parte Permissible. Upon request by either party and with a 
showing of good cause, the military judge must hold such conference ex 
parte to the extent necessary to protect classified information from 
disclosure.
    (3) Matters To Be Established at Pretrial Conference.
    (A) Timing of Subsequent Actions. At the pretrial conference, the 
military judge must establish the timing of:
    (i) Requests for discovery;
    (ii) The provision of notice required by subdivision (i) of this 
rule; and
    (iii) The initiation of the procedure established by subdivision 
(j) of this rule.
    (B) Other Matters. At the pretrial conference, the military judge 
may also consider any matter which relates to classified information or 
which may promote a fair and expeditious trial.
    (4) Convening Authority Notice and Action. If a claim of privilege 
has been made under this rule with respect to classified information 
that apparently contains evidence that is relevant and necessary to an 
element of the offense or a legally cognizable defense and is otherwise 
admissible in evidence in the court-martial proceeding, the matter will 
be reported to the convening authority. The convening authority may:
    (A) Institute action to obtain the classified information for the 
use by the military judge in making a determination under subdivision 
(j);
    (B) Dismiss the charges;
    (C) Dismiss the charges or specifications or both to which the 
information relates; or
    (D) Take such other action as may be required in the interests of 
justice.
    (5) Remedies. 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 must dismiss the charges or specifications or both to which the 
classified information relates.
    (g) Protective Orders. Upon motion of the trial counsel, the 
military judge must issue an order to protect against the disclosure of 
any classified information that has been disclosed by the United States 
to any accused in any court-martial proceeding or that has otherwise 
been provided to, or obtained by, any such accused in any such court-
martial proceeding. The terms of any such protective order may include, 
but are not limited to, provisions:
    (1) Prohibiting the disclosure of the information except as 
authorized by the military judge;
    (2) Requiring storage of material in a manner appropriate for the 
level of classification assigned to the documents to be disclosed;
    (3) Requiring controlled access to the material during normal 
business hours and at other times upon reasonable notice;
    (4) Mandating that all persons requiring security clearances will 
cooperate with investigatory personnel in any investigations which are 
necessary to obtain a security clearance;
    (5) 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;
    (6) Regulating the making and handling of notes taken from material 
containing classified information; or
    (7) Requesting the convening authority to authorize the assignment 
of government security personnel and the provision of government 
storage facilities.
    (h) Discovery and Access by the Accused.
    (1) Limitations.
    (A) Government Claim of Privilege. In court-martial proceeding in 
which the government seeks to delete, withhold, or otherwise obtain 
other relief with respect to the discovery of or access to any 
classified information, the trial counsel must submit a declaration 
invoking the United States' classified information privilege and 
setting forth the damage to the national security that the discovery of 
or access to such information reasonably could be expected to cause. 
The declaration must be signed by the head, or designee, of the 
executive or military department or government agency concerned.
    (B) Standard for Discovery or Access by the Accused. Upon the 
submission of a declaration under subdivision (h)(1)(A), the military 
judge may not authorize the discovery of or access to such classified 
information unless the military judge determines that such classified 
information would be noncumulative and relevant to a legally cognizable 
defense, rebuttal of the prosecution's case, or to sentencing. If the 
discovery of or access to such classified information is authorized, it 
must be addressed in accordance with the requirements of subdivision 
(h)(2).
    (2) Alternatives to Full Discovery.
    (A) Substitutions and Other Alternatives. The military judge, in 
assessing the accused's right to discover or access classified 
information under this subdivision, may authorize the Government:
    (i) To delete or withhold specified items of classified 
information;
    (ii) To substitute a summary for classified information; or
    (iii) To substitute a statement admitting relevant facts that the 
classified information or material 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.
    (B) In Camera Review. The military judge must, upon the request of 
the prosecution, conduct an in camera review of the prosecution's 
motion and any materials submitted in support thereof and must not 
disclose such information to the accused.
    (C) Action by Military Judge. The military judge must grant the 
request of the trial counsel to substitute a summary or to substitute a 
statement admitting relevant facts, or to provide other relief in 
accordance with subdivision (h)(2)(A), if the military judge finds that 
the summary, statement, or other relief would provide the accused with 
substantially the same ability to make a defense as would discovery of 
or access to the specific classified information.
    (3) Reconsideration. An order of a military judge authorizing a 
request of the trial counsel to substitute, summarize, withhold, or 
prevent access to classified information under this subdivision (h) is 
not subject to a motion for reconsideration by the accused, if such 
order was entered pursuant to an ex parte showing under this 
subdivision.
    (i) Disclosure by the Accused.
    (1) Notification to Trial Counsel and Military Judge. If an accused 
reasonably expects to disclose, or to cause the disclosure of, 
classified information in any manner in connection with any trial or 
pretrial proceeding involving the prosecution of such accused, the 
accused must, within the time specified by the military judge or, where 
no time is specified, prior to arraignment of the accused, notify the 
trial counsel and the military judge in writing.
    (2) Content of Notice. Such notice must include a brief description 
of the classified information.
    (3) Ex Parte Proffer. At the request of the defense counsel, the 
military judge may allow defense counsel to make an ex parte proffer of 
the classified information to the military judge so that

[[Page 15071]]

the military judge can determine the relevance of the information for 
use by the accused.
    (4) Continuing Duty To Notify. Whenever the accused learns of 
additional classified information the accused reasonably expects to 
disclose, or to cause the disclosure of, at any such proceeding, the 
accused must notify trial counsel and the military judge in writing as 
soon as possible thereafter and must include a brief description of the 
classified information.
    (5) Limitation on Disclosure by Accused. The accused may not 
disclose, or cause the disclosure of, any information known or believed 
to be classified in connection with a trial or pretrial proceeding 
until:
    (A) Notice has been given under this subdivision (i); and
    (B) The Government has been afforded a reasonable opportunity to 
seek a determination pursuant to the procedure set forth in subdivision 
(j).
    (6) Failure to comply. If the accused fails to comply with the 
requirements of this subdivision, the military judge:
    (A) May preclude disclosure of any classified information not made 
the subject of notification; and
    (B) May prohibit the examination by the accused of any witness with 
respect to any such information.
    (j) Procedure for Use of Classified Information in Trials and 
Pretrial Proceedings.
    (1) Hearing on Use of Classified Information.
    (A) Motion for Hearing. Within the time specified by the military 
judge for the filing of a motion under this rule, either party may move 
for a hearing concerning the use at any proceeding of any classified 
information. Upon a request by either party, the military judge must 
conduct such a hearing and must rule prior to conducting any further 
proceedings.
    (B) Request for In Camera Hearing. Any hearing held pursuant to 
this subdivision (or any portion of such hearing specified in the 
request of a knowledgeable United States official) must be held in 
camera if a knowledgeable United States official possessing authority 
to classify information submits to the military judge a declaration 
that a public proceeding may result in the disclosure of classified 
information.
    (C) Notice to Accused. Before the hearing, trial counsel must 
provide the accused with notice of the classified information that is 
at issue. Such notice must identify the specific classified information 
at issue whenever that information previously has been made available 
to the accused by the United States. When the United States has not 
previously made the information available to the accused in connection 
with the case the information may be described by generic category, in 
such forms as the military judge may approve, rather than by 
identification of the specific information of concern to the United 
States.
    (D) Standard for Disclosure. Classified information is not subject 
to disclosure under this subdivision unless the information is relevant 
and necessary to an element of the offense or a legally cognizable 
defense and is otherwise admissible in evidence. In presentencing 
proceedings, relevant and material classified information pertaining to 
the appropriateness of, or the appropriate degree of, punishment must 
be admitted only if no unclassified version of such information is 
available.
    (E) Written Findings. As to each item of classified information, 
the military judge must set forth in writing the basis for the 
determination.
    (2) Alternatives to Full Disclosure.
    (A) Motion by the Prosecution. Upon any determination by the 
military judge authorizing the disclosure of specific classified 
information under the procedures established by this subdivision (j), 
the trial counsel may move that, in lieu of the disclosure of such 
specific classified information, the military judge order:
    (i) The substitution for such classified information of a statement 
admitting relevant facts that the specific classified information would 
tend to prove;
    (ii) The substitution for such classified information of a summary 
of the specific classified information; or
    (iii) Any other procedure or redaction limiting the disclosure of 
specific classified information.
    (B) Declaration of Damage to National Security. The trial counsel 
may, in connection with a motion under this subdivision (j), submit to 
the military judge a declaration signed by the head, or designee, of 
the executive or military department or government agency concerned 
certifying that disclosure of classified information would cause 
identifiable damage to the national security of the United States and 
explaining the basis for the classification of such information. If so 
requested by the trial counsel, the military judge must examine such 
declaration during an in camera review.
    (C) Hearing. The military judge must hold a hearing on any motion 
under this subdivision. Any such hearing must be held in camera at the 
request of a knowledgeable United States official possessing authority 
to classify information.
    (D) Standard for Use of Alternatives. The military judge must grant 
such a motion of the trial counsel if the military judge finds that the 
statement, summary, or other procedure or redaction will provide the 
accused with substantially the same ability to make his or her defense 
as would disclosure of the specific classified information.
    (3) Sealing of Records of In Camera Hearings. If at the close of an 
in camera hearing under this subdivision (or any portion of a hearing 
under this subdivision that is held in camera), the military judge 
determines that the classified information at issue may not be 
disclosed or elicited at the trial or pretrial proceeding, the record 
of such in camera hearing must be sealed in accordance with R.C.M. 
1103A and preserved for use in the event of an appeal. The accused may 
seek reconsideration of the military judge's determination prior to or 
during trial.
    (4) Remedies. If the military judge determines that alternatives to 
full disclosure may not be used and the prosecution continues to object 
to disclosure of the information, the military judge must issue any 
order that the interests of justice require, including but not limited 
to, an order:
    (A) Striking or precluding all or part of the testimony of a 
witness;
    (B) Declaring a mistrial;
    (C) Finding against the Government on any issue as to which the 
evidence is relevant and material to the defense;
    (D) Dismissing the charges, with or without prejudice; or
    (E) Dismissing the charges or specifications or both to which the 
information relates.
    The Government may avoid the sanction for nondisclosure by 
permitting the accused to disclose the information at the pertinent 
court-martial proceeding.
    (5) Disclosure of Rebuttal Information. Whenever the military judge 
determines that classified information may be disclosed in connection 
with a trial or pretrial proceeding, the military judge must, unless 
the interests of fairness do not so require, order the prosecution to 
provide the accused with the information it expects to use to rebut the 
classified information.
    (A) Continuing Duty. The military judge may place the prosecution 
under a continuing duty to disclose such rebuttal information.
    (B) Sanction for Failure To Comply. If the prosecution fails to 
comply with its obligation under this subdivision, the military judge:
    (i) May exclude any evidence not made the subject of a required 
disclosure; and

[[Page 15072]]

    (ii) May prohibit the examination by the prosecution of any witness 
with respect to such information.
    (6) Disclosure at Trial of Previous Statements by a Witness.
    (A) Motion for Production of Statements in Possession of the 
Prosecution. After a witness called by the trial counsel has testified 
on direct examination, the military judge, on motion of the accused, 
may order production of statements of the witness in the possession of 
the Prosecution which relate to the subject matter as to which the 
witness has testified. This paragraph does not preclude discovery or 
assertion of a privilege otherwise authorized.
    (B) Invocation of Privilege by the Government. If the Government 
invokes a privilege, the trial counsel may provide the prior statements 
of the witness to the military judge for in camera review to the extent 
necessary to protect classified information from disclosure.
    (C) Action by Military Judge. If the military judge finds that 
disclosure of any portion of the statement identified by the Government 
as classified would be detrimental to the national security in the 
degree required to warrant classification under the applicable 
Executive Order, statute, or regulation, that such portion of the 
statement is consistent with the testimony of the witness, and that the 
disclosure of such portion is not necessary to afford the accused a 
fair trial, the military judge must excise that portion from the 
statement. If the military judge finds that such portion of the 
statement is inconsistent with the testimony of the witness or that its 
disclosure is necessary to afford the accused a fair trial, the 
military judge must, upon the request of the trial counsel, consider 
alternatives to disclosure in accordance with this subdivision (j)(2).
    (k) Introduction into Evidence of Classified Information.
    (1) Preservation of Classification Status. Writings, recordings, 
and photographs containing classified information may be admitted into 
evidence in court-martial proceedings under this rule without change in 
their classification status.
    (A) Precautions. The military judge in a trial by court-martial, in 
order to prevent unnecessary disclosure of classified information, 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, unless the whole ought in fairness be 
considered.
    (B) Classified Information Kept Under Seal. The military judge must 
allow classified information offered or accepted into evidence to 
remain under seal during the trial, even if such evidence is disclosed 
in the court-martial proceeding, and may, upon motion by the 
Government, seal exhibits containing classified information in 
accordance with R.C.M. 1103A for any period after trial as necessary to 
prevent a disclosure of classified information when a knowledgeable 
United States official possessing authority to classify information 
submits to the military judge a declaration setting forth the damage to 
the national security that the disclosure of such information 
reasonably could be expected to cause.
    (2) Testimony.
    (A) Objection by Trial Counsel. During the examination of a 
witness, trial counsel may object to any question or line of inquiry 
that may require the witness to disclose classified information not 
previously found to be admissible.
    (B) Action by Military Judge. Following an objection under this 
subdivision (k), the military judge must 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 trial counsel to provide the military judge with a proffer of 
the witness's 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 sought to be elicited by the accused. Upon request, 
the military judge may accept an ex parte proffer by trial counsel to 
the extent necessary to protect classified information from disclosure.
    (3) Closed session. The military judge may, subject to the 
requirements of the United States Constitution, exclude the public 
during that portion of the presentation of evidence that discloses 
classified information.
    (l) Record of Trial. If under this rule 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 
prosecution's motion and any materials submitted in support thereof 
must be sealed in accordance with R.C.M. 1103A and attached to the 
record of trial as an appellate exhibit. Such material must be made 
available to reviewing authorities in closed proceedings for the 
purpose of reviewing the determination of the military judge. The 
record of trial with respect to any classified matter will be prepared 
under R.C.M. 1103(h) and 1104(b)(1)(D).

Rule 506. Government Information Other Than Classified Information

    (a) Protection of Government Information. Except where disclosure 
is required by a federal statute, government information is privileged 
from disclosure if disclosure would be detrimental to the public 
interest.
    (b) Scope. ``Government information'' includes official 
communication and documents and other information within the custody or 
control of the Federal Government. This rule does not apply to 
classified information (Mil. R. Evid. 505) or to the identity of an 
informant (Mil. R. Evid. 507).
    (c) Definitions. As used in this rule:
    (1) ``In camera hearing'' means a session under Article 39(a) from 
which the public is excluded.
    (2) ``In camera review'' means an inspection of documents or other 
evidence conducted by the military judge alone in chambers and not on 
the record.
    (3) ``Ex parte'' means a discussion between the military judge and 
either the defense counsel or prosecution, without the other party or 
the public present. This discussion can be on or off the record, 
depending on the circumstances. The military judge will grant a request 
for an ex parte discussion or hearing only after finding that such 
discussion or hearing is necessary to protect government information or 
other good cause. Prior to granting a request from one party for an ex 
parte discussion or hearing, the military judge must provide notice to 
the opposing party on the record. If the ex parte discussion is 
conducted off the record, the military judge should later state on the 
record that such ex parte discussion took place and generally summarize 
the subject matter of the discussion, as appropriate.
    (d) Who May Claim the Privilege. The privilege may be claimed by 
the head, or designee, of the executive or military department or 
government agency concerned. The privilege for records and information 
of the Inspector General may be claimed by the immediate superior of 
the inspector general officer responsible for creation of the records 
or information, the Inspector General, or any other 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.

[[Page 15073]]

    (e) Action Prior to Referral of Charges.
    (1) Prior to referral of charges, upon a showing by the accused 
that the government information sought is relevant and necessary to an 
element of the offense or a legally cognizable defense, the convening 
authority must respond in writing to a request by the accused for 
government information if the privilege in this rule is claimed for 
such information. In response to such a request, the convening 
authority may:
    (A) Delete specified items of government information claimed to be 
privileged from documents made available to the accused;
    (B) Substitute a portion or summary of the information for such 
documents;
    (C) Substitute a statement admitting relevant facts that the 
government information would tend to prove;
    (D) Provide the document subject to conditions similar to those set 
forth in subdivision (g) of this rule; or
    (E) Withhold disclosure if actions under (1) through (4) cannot be 
taken without causing identifiable damage to the public interest.
    (2) Any objection by the accused to withholding of information or 
to the conditions of disclosure must be raised through a motion for 
appropriate relief at a pretrial conference.
    (f) Action After Referral of Charges.
    (1) Pretrial Conference. At any time after referral of charges, any 
party may move for a pretrial conference under Article 39(a) to 
consider matters relating to government information that may arise in 
connection with the trial. Following such a motion, or when the 
military judge recognizes the need for such conference, the military 
judge must promptly hold a pretrial conference under Article 39(a).
    (2) Ex Parte Permissible. Upon request by either party and with a 
showing of good cause, the military judge must hold such conference ex 
parte to the extent necessary to protect government information from 
disclosure.
    (3) Matters to be Established at Pretrial Conference.
    (A) Timing of Subsequent Actions. At the pretrial conference, the 
military judge must establish the timing of:
    (i) Requests for discovery;
    (ii) The provision of notice required by subdivision (i) of this 
rule; and
    (iii) The initiation of the procedure established by subdivision 
(j) of this rule.
    (B) Other Matters. At the pretrial conference, the military judge 
may also consider any matter which relates to government information or 
which may promote a fair and expeditious trial.
    (4) Convening Authority Notice and Action. If a claim of privilege 
has been made under this rule with respect to government information 
that apparently contains evidence that is relevant and necessary to an 
element of the offense or a legally cognizable defense and is otherwise 
admissible in evidence in the court-martial proceeding, the matter must 
be reported to the convening authority. The convening authority may:
    (A) Institute action to obtain the information for use by the 
military judge in making a determination under subdivision (j);
    (B) Dismiss the charges;
    (C) Dismiss the charges or specifications or both to which the 
information relates; or
    (D) Take such other action as may be required in the interests of 
justice.
    (5) Remedies. 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 must dismiss the 
charges or specifications or both to which the information relates.
    (g) Protective Orders. Upon motion of the trial counsel, the 
military judge must issue an order to protect against the disclosure of 
any government information that has been disclosed by the United States 
to any accused in any court-martial proceeding or that has otherwise 
been provided to, or obtained by, any such accused in any such court-
martial proceeding. The terms of any such protective order may include, 
but are not limited to, 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) Discovery and Access by the Accused.
    (1) Limitations.
    (A) Government Claim of Privilege. In court-martial proceeding in 
which the government seeks to delete, withhold, or otherwise obtain 
other relief with respect to the discovery of or access to any 
government information subject to a claim of privilege, the trial 
counsel must submit a declaration invoking the United States' 
government information privilege and setting forth the detriment to the 
public interest that the discovery of or access to such information 
reasonably could be expected to cause. The declaration must be signed 
by a knowledgeable United States official as described in subdivision 
(d) of this rule.
    (B) Standard for Discovery or Access by the Accused. Upon the 
submission of a declaration under subdivision (h)(1)(A), the military 
judge may not authorize the discovery of or access to such government 
information unless the military judge determines that such government 
information would be noncumulative, relevant, and helpful to a legally 
cognizable defense, rebuttal of the prosecution's case, or to 
sentencing. If the discovery of or access to such government 
information is authorized, it must be addressed in accordance with the 
requirements of subdivision (h)(2).
    (2) Alternatives to Full Disclosure.
    (A) Substitutions and Other Alternatives. The military judge, in 
assessing the accused's right to discover or access government 
information under this subdivision, may authorize the Government:
    (i) To delete or withhold specified items of government 
information;
    (ii) To substitute a summary for government information; or
    (iii) To substitute a statement admitting relevant facts that the 
government information or material would tend to prove, unless the 
military judge determines that disclosure of the government information 
itself is necessary to enable the accused to prepare for trial.
    (B) In Camera Review. The military judge must, upon the request of 
the prosecution, conduct an in camera review of the prosecution's 
motion and any materials submitted in support thereof and must not 
disclose such information to the accused.
    (C) Action by Military Judge. The military judge must grant the 
request of the trial counsel to substitute a summary or to substitute a 
statement admitting relevant facts, or to provide other relief in 
accordance with subdivision (h)(2)(A), if the military judge finds that 
the summary, statement, or other relief would provide the accused with 
substantially the same ability to make a defense as would

[[Page 15074]]

discovery of or access to the specific government information.
    (i) Disclosure by the Accused.
    (1) Notification to Trial Counsel and Military Judge. If an accused 
reasonably expects to disclose, or to cause the disclosure of, 
government information subject to a claim of privilege in any manner in 
connection with any trial or pretrial proceeding involving the 
prosecution of such accused, the accused must, within the time 
specified by the military judge or, where no time is specified, prior 
to arraignment of the accused, notify the trial counsel and the 
military judge in writing.
    (2) Content of Notice. Such notice must include a brief description 
of the government information.
    (3) Ex Parte Review. At the request of the defense counsel, the 
military judge may allow defense counsel to make an ex parte proffer of 
the government information to the military judge so that the military 
judge can determine the relevance of the information for use by the 
accused.
    (4) Continuing Duty to Notify. Whenever the accused learns of 
additional government information the accused reasonably expects to 
disclose, or to cause the disclosure of, at any such proceeding, the 
accused must notify trial counsel and the military judge in writing as 
soon as possible thereafter and must include a brief description of the 
government information.
    (5) Limitation on Disclosure by Accused. The accused may not 
disclose, or cause the disclosure of, any information known or believed 
to be subject to a claim of privilege in connection with a trial or 
pretrial proceeding until:
    (A) Notice has been given under this subdivision (i); and
    (B) The Government has been afforded a reasonable opportunity to 
seek a determination pursuant to the procedure set forth in subdivision 
(j).
    (6) Failure to Comply. If the accused fails to comply with the 
requirements of this subdivision, the military judge:
    (A) May preclude disclosure of any government information not made 
the subject of notification; and
    (B) May prohibit the examination by the accused of any witness with 
respect to any such information.
    (j) Procedure for Use of Government Information Subject to a Claim 
of Privilege in Trials and Pretrial Proceedings.
    (1) Hearing on Use of Government Information.
    (A) Motion for Hearing. Within the time specified by the military 
judge for the filing of a motion under this rule, either party may move 
for an in camera hearing concerning the use at any proceeding of any 
government information that may be subject to a claim of privilege. 
Upon a request by either party, the military judge must conduct such a 
hearing and must rule prior to conducting any further proceedings.
    (B) Request for In Camera Hearing. Any hearing held pursuant to 
this subdivision must be held in camera if a knowledgeable United 
States official described in subdivision (d) of this rule submits to 
the military judge a declaration that disclosure of the information 
reasonably could be expected to cause identifiable damage to the public 
interest.
    (C) Notice to Accused. Subject to subdivision (j)(2) below, the 
prosecution must disclose government information claimed to be 
privileged under this rule for the limited purpose of litigating, in 
camera, the admissibility of the information at trial. The military 
judge must enter an appropriate protective order to the accused and all 
other appropriate trial participants concerning the disclosure of the 
information according to subdivision (g), above. The accused may not 
disclose any information provided under this subdivision unless, and 
until, such information has been admitted into evidence by the military 
judge. In the in camera hearing, both parties may have the opportunity 
to brief and argue the admissibility of the government information at 
trial.
    (D) Standard for Disclosure. Government information is subject to 
disclosure at the court-martial proceeding 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 or to punishment of the accused, and is otherwise admissible 
in the court-martial proceeding.
    (E) Written Findings. As to each item of government information, 
the military judge must set forth in writing the basis for the 
determination.
    (2) Alternatives to Full Disclosure.
    (A) Motion by the Prosecution. Upon any determination by the 
military judge authorizing disclosure of specific government 
information under the procedures established by this subdivision (j), 
the prosecution may move that, in lieu of the disclosure of such 
information, the military judge order:
    (i) The substitution for such government information of a statement 
admitting relevant facts that the specific government information would 
tend to prove;
    (ii) The substitution for such government information of a summary 
of the specific government information; or
    (iii) Any other procedure or redaction limiting the disclosure of 
specific government information.
    (B) Hearing. The military judge must hold a hearing on any motion 
under this subdivision. At the request of the trial counsel, the 
military judge will conduct an in camera hearing.
    (C) Standard for Use of Alternatives. The military judge must grant 
such a motion of the trial counsel if the military judge finds that the 
statement, summary, or other procedure or redaction will provide the 
accused with substantially the same ability to make his or her defense 
as would disclosure of the specific government information.
    (3) Sealing of Records of In Camera Hearings. If at the close of an 
in camera hearing under this subdivision (or any portion of a hearing 
under this subdivision that is held in camera), the military judge 
determines that the government information at issue may not be 
disclosed or elicited at the trial or pretrial proceeding, the record 
of such in camera hearing must be sealed in accordance with R.C.M. 
1103A and preserved for use in the event of an appeal. The accused may 
seek reconsideration of the military judge's determination prior to or 
during trial.
    (4) Remedies. If the military judge determines that alternatives to 
full disclosure may not be used and the prosecution continues to object 
to disclosure of the information, the military judge must issue any 
order that the interests of justice require, including but not limited 
to, an order:
    (A) Striking or precluding all or part of the testimony of a 
witness;
    (B) Declaring a mistrial;
    (C) Finding against the Government on any issue as to which the 
evidence is relevant and necessary to the defense;
    (D) Dismissing the charges, with or without prejudice; or
    (E) Dismissing the charges or specifications or both to which the 
information relates.
    The Government may avoid the sanction for nondisclosure by 
permitting the accused to disclose the information at the pertinent 
court-martial proceeding.
    (5) Disclosure of Rebuttal Information. Whenever the military judge 
determines that government information may be disclosed in connection 
with a trial or pretrial proceeding, the military judge must, unless 
the interests of fairness do not so require, order the prosecution to 
provide the accused with the

[[Page 15075]]

information it expects to use to rebut the government information.
    (A) Continuing Duty. The military judge may place the prosecution 
under a continuing duty to disclose such rebuttal information.
    (B) Sanction for Failure to Comply. If the prosecution fails to 
comply with its obligation under this subdivision, the military judge 
may make such ruling as the interests of justice require, to include:
    (i) Excluding any evidence not made the subject of a required 
disclosure; and
    (ii) Prohibiting the examination by the prosecution of any witness 
with respect to such information.
    (k) Appeals of Orders and Rulings. In a court-martial in which a 
punitive discharge may be adjudged, the Government may appeal an order 
or ruling of the military judge that terminates the proceedings with 
respect to a charge or specification, directs the disclosure of 
government information, or imposes sanctions for nondisclosure of 
government information. The Government may also appeal an order or 
ruling in which the military judge refuses to issue a protective order 
sought by the United States to prevent the disclosure of government 
information, or to enforce such an order previously issued by 
appropriate authority. The Government may not appeal an order or ruling 
that is, or amounts to, a finding of not guilty with respect to the 
charge or specification.
    (l) Introduction into Evidence of Government Information Subject to 
a Claim of Privilege.
    (1) Precautions. The military judge in a trial by court-martial, in 
order to prevent unnecessary disclosure of government information after 
there has been a claim of privilege under this rule, may order 
admission into evidence of only part of a writing, recording, or 
photograph or admit into evidence the whole writing, recording, or 
photograph with excision of some or all of the government information 
contained therein, unless the whole ought in fairness be considered.
    (2) Government Information Kept Under Seal. The military judge must 
allow government information offered or accepted into evidence to 
remain under seal during the trial, even if such evidence is disclosed 
in the court-martial proceeding, and may, upon motion by the 
prosecution, seal exhibits containing government information in 
accordance with R.C.M. 1103A for any period after trial as necessary to 
prevent a disclosure of government information when a knowledgeable 
United States official described in subdivision (d) submits to the 
military judge a declaration setting forth the detriment to the public 
interest that the disclosure of such information reasonably could be 
expected to cause.
    (3) Testimony.
    (A) Objection by Trial Counsel. During examination of a witness, 
trial counsel may object to any question or line of inquiry that may 
require the witness to disclose government information not previously 
found admissible if such information has been or is reasonably likely 
to be the subject of a claim of privilege under this rule.
    (B) Action by Military Judge. Following such an objection, the 
military judge must 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 trial counsel 
to provide the military judge with a proffer of the witness's 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 
sought to be elicited by the accused. Upon request, the military judge 
may accept an ex parte proffer by trial counsel to the extent necessary 
to protect government information from disclosure.
    (m) Record of Trial. If under this rule 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 
prosecution's motion and any materials submitted in support thereof 
must be sealed in accordance with R.C.M. 1103A and attached to the 
record of trial as an appellate exhibit. Such material must be made 
available to reviewing authorities in closed proceedings for the 
purpose of reviewing the determination of the military judge.

Rule 507. Identity of Informants

    (a) General Rule. The United States or a State or subdivision 
thereof has a privilege to refuse to disclose the identity of an 
informant. 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) Definitions. As used in this rule:
    (1) ``Informant'' means a person who has furnished information 
relating to or assisting in an investigation of a possible violation of 
law to a person whose official duties include the discovery, 
investigation, or prosecution of crime.
    (2) ``In camera review'' means an inspection of documents or other 
evidence conducted by the military judge alone in chambers and not on 
the record.
    (c) Who May Claim the Privilege. The privilege may be claimed by an 
appropriate representative of the United States, regardless of whether 
information was furnished to an officer of the United States or 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 will not be 
allowed if the prosecution objects.
    (d) Exceptions.
    (1) Voluntary Disclosures; Informant as a Prosecution 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) Informant as a Defense Witness. If a claim of privilege has 
been made under this rule, the military judge must, 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 defense, 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) Informant as a Witness regarding a Motion to Suppress Evidence. 
If a claim of privilege has been made under this rule with respect to a 
motion under Mil. R. Evid. 311, the military judge must, upon motion of 
the accused, determine whether disclosure of the identity of the 
informant is required by the United States Constitution 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.
    (e) Procedures.
    (1) In Camera Review. If the accused has articulated a basis for 
disclosure under the standards set forth in this rule, the prosecution 
may ask the military judge to conduct an in camera

[[Page 15076]]

review of affidavits or other evidence relevant to disclosure.
    (2) Order by the Military Judge. If a claim of privilege has been 
made under this rule, the military judge may make any order required by 
the interests of justice.
    (3) Action by the Convening Authority. 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 must 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.
    (4) Remedies. 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 charge 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 Mil. R. Evid. 606, the deliberations of 
courts, courts-martial, military judges, 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) General Rule. 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) Use of Communications Media. 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 a Privilege Without the Knowledge of the Members. In a 
trial before a court-martial with members, proceedings must be 
conducted, to the extent practicable, so as to facilitate the making of 
claims of privilege without the knowledge of the members. This 
subdivision (b) 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).

Rule 513. Psychotherapist--Patient Privilege

    (a) General Rule. A patient has a privilege to refuse to disclose 
and to prevent any other person from disclosing a confidential 
communication made between the patient and a psychotherapist or an 
assistant to the psychotherapist, in a case arising under the Uniform 
Code of Military Justice, if such communication was made for the 
purpose of facilitating diagnosis or treatment of the patient's mental 
or emotional condition.
    (b) Definitions. As used in this rule:
    (1) ``Patient'' means a person who consults with or is examined or 
interviewed by a psychotherapist for purposes of advice, diagnosis, or 
treatment of a mental or emotional condition.
    (2) ``Psychotherapist'' means a psychiatrist, clinical 
psychologist, or clinical social worker who is licensed in any state, 
territory, possession, the District of Columbia or Puerto Rico to 
perform professional services as such, or who holds credentials to 
provide such services from any military health care facility, or is a 
person reasonably believed by the patient to have such license or 
credentials.
    (3) ``Assistant to a psychotherapist'' means a person directed by 
or assigned to assist a psychotherapist in providing professional 
services, or is reasonably believed by the patient to be such.
    (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 services to the patient or 
those reasonably necessary for such transmission of the communication.
    (5) ``Evidence of a patient's records or communications'' means 
testimony of a psychotherapist, or assistant to the same, or patient 
records that pertain to communications by a patient to a 
psychotherapist, or assistant to the same for the purposes of diagnosis 
or treatment of the patient's mental or emotional condition.
    (c) Who May Claim the Privilege. The privilege may be claimed by 
the patient or the guardian or conservator of the patient. A person who 
may claim the privilege may authorize trial counsel or defense counsel 
to claim the privilege on his or her behalf. The psychotherapist or 
assistant to the psychotherapist who received the communication may 
claim the privilege on behalf of the patient. The authority of such a 
psychotherapist, assistant, guardian, or conservator to so assert the 
privilege is presumed in the absence of evidence to the contrary.

[[Page 15077]]

    (d) Exceptions. There is no privilege under this rule:
    (1) When the patient is dead;
    (2) When the communication is evidence of child abuse or of 
neglect, or in a proceeding in which one spouse is charged with a crime 
against a child of either spouse;
    (3) When federal law, state law, or service regulation imposes a 
duty to report information contained in a communication;
    (4) When a psychotherapist or assistant to a psychotherapist 
believes that a patient's mental or emotional condition makes the 
patient a danger to any person, including the patient;
    (5) If the communication clearly contemplated the future commission 
of a fraud or crime or if the services of the psychotherapist are 
sought or obtained to enable or aid anyone to commit or plan to commit 
what the patient knew or reasonably should have known to be a crime or 
fraud;
    (6) When necessary to ensure the safety and security of military 
personnel, military dependents, military property, classified 
information, or the accomplishment of a military mission;
    (7) When an accused offers statements or other evidence concerning 
his mental condition in defense, extenuation, or mitigation, under 
circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such 
situations, the military judge may, upon motion, order disclosure of 
any statement made by the accused to a psychotherapist as may be 
necessary in the interests of justice; or
    (8) When admission or disclosure of a communication is 
constitutionally required.
    (e) Procedure to Determine Admissibility of Patient Records or 
Communications.
    (1) In any case in which the production or admission of records or 
communications of a patient other than the accused is a matter in 
dispute, a party may seek an interlocutory ruling by the military 
judge. In order to obtain such a ruling, the party must:
    (A) File a written motion at least 5 days prior to entry of pleas 
specifically describing the evidence and stating the purpose for which 
it is sought or offered, or objected to, unless the military judge, for 
good cause shown, requires a different time for filing or permits 
filing during trial; and
    (B) Serve the motion on the opposing party, the military judge and, 
if practical, notify the patient or the patient's guardian, 
conservator, or representative that the motion has been filed and that 
the patient has an opportunity to be heard as set forth in subdivision 
(e)(2).
    (2) Before ordering the production or admission of evidence of a 
patient's records or communication, the military judge must conduct a 
hearing. Upon the motion of counsel for either party and upon good 
cause shown, the military judge may order the hearing closed. At the 
hearing, the parties may call witnesses, including the patient, and 
offer other relevant evidence. The patient must be afforded a 
reasonable opportunity to attend the hearing and be heard at the 
patient's own expense unless the patient has been otherwise subpoenaed 
or ordered to appear at the hearing. However, the proceedings may not 
be unduly delayed for this purpose. In a case before a court-martial 
composed of a military judge and members, the military judge must 
conduct the hearing outside the presence of the members.
    (3) The military judge may examine the evidence or a proffer 
thereof in camera, if such examination is necessary to rule on the 
motion.
    (4) To prevent unnecessary disclosure of evidence of a patient's 
records or communications, the military judge may issue protective 
orders or may admit only portions of the evidence.
    (5) The motion, related papers, and the record of the hearing must 
be sealed in accordance with R.C.M. 1103A and must remain under seal 
unless the military judge or an appellate court orders otherwise.

Rule 514. Victim Advocate--Victim Privilege

    (a) General Rule. A victim has a privilege to refuse to disclose 
and to prevent any other person from disclosing a confidential 
communication made between the alleged victim and a victim advocate, in 
a case arising under the Uniform Code of Military Justice, if such 
communication was made for the purpose of facilitating advice or 
supportive assistance to the alleged victim.
    (b) Definitions. As used in this rule:
    (1) ``Victim'' means any person who is alleged to have suffered 
direct physical or emotional harm as the result of a sexual or violent 
offense.
    (2) ``Victim advocate'' means a person who:
    (A) Is designated in writing as a victim advocate in accordance 
with service regulation;
    (B) Is authorized to perform victim advocate duties in accordance 
with service regulation and is acting in the performance of those 
duties; or
    (C) Is certified as a victim advocate pursuant to federal or state 
requirements.
    (3) A communication is ``confidential'' if made in the course of 
the victim advocate--victim relationship and not intended to be 
disclosed to third persons other than those to whom disclosure is made 
in furtherance of the rendition of advice or assistance to the alleged 
victim or those reasonably necessary for such transmission of the 
communication.
    (4) ``Evidence of a victim's records or communications'' means 
testimony of a victim advocate, or records that pertain to 
communications by a victim to a victim advocate, for the purposes of 
advising or providing supportive assistance to the victim.
    (c) Who May Claim the Privilege. The privilege may be claimed by 
the victim or the guardian or conservator of the victim. A person who 
may claim the privilege may authorize trial counsel or a defense 
counsel representing the victim to claim the privilege on his or her 
behalf. The victim advocate who received the communication may claim 
the privilege on behalf of the victim. The authority of such a victim 
advocate, guardian, conservator, or a defense counsel representing the 
victim to so assert the privilege is presumed in the absence of 
evidence to the contrary.
    (d) Exceptions. There is no privilege under this rule:
    (1) When the victim is dead;
    (2) When federal law, state law, or service regulation imposes a 
duty to report information contained in a communication;
    (3) When a victim advocate believes that a victim's mental or 
emotional condition makes the victim a danger to any person, including 
the victim;
    (4) If the communication clearly contemplated the future commission 
of a fraud or crime, or if the services of the victim advocate are 
sought or obtained to enable or aid anyone to commit or plan to commit 
what the victim knew or reasonably should have known to be a crime or 
fraud;
    (5) When necessary to ensure the safety and security of military 
personnel, military dependents, military property, classified 
information, or the accomplishment of a military mission; or
    (6) When admission or disclosure of a communication is 
constitutionally required.
    (e) Procedure to Determine Admissibility of Victim Records or 
Communications.
    (1) In any case in which the production or admission of records or 
communications of a victim is a matter in dispute, a party may seek an 
interlocutory ruling by the military

[[Page 15078]]

judge. In order to obtain such a ruling, the party must:
    (A) File a written motion at least 5 days prior to entry of pleas 
specifically describing the evidence and stating the purpose for which 
it is sought or offered, or objected to, unless the military judge, for 
good cause shown, requires a different time for filing or permits 
filing during trial; and
    (B) Serve the motion on the opposing party, the military judge and, 
if practicable, notify the victim or the victim's guardian, 
conservator, or representative that the motion has been filed and that 
the victim has an opportunity to be heard as set forth in subdivision 
(e)(2).
    (2) Before ordering the production or admission of evidence of a 
victim's records or communication, the military judge must conduct a 
hearing. Upon the motion of counsel for either party and upon good 
cause shown, the military judge may order the hearing closed. At the 
hearing, the parties may call witnesses, including the victim, and 
offer other relevant evidence. The victim must be afforded a reasonable 
opportunity to attend the hearing and be heard at the victim's own 
expense unless the victim has been otherwise subpoenaed or ordered to 
appear at the hearing. However, the proceedings may not be unduly 
delayed for this purpose. In a case before a court-martial composed of 
a military judge and members, the military judge must conduct the 
hearing outside the presence of the members.
    (3) The military judge may examine the evidence or a proffer 
thereof in camera, if such examination is necessary to rule on the 
motion.
    (4) To prevent unnecessary disclosure of evidence of a victim's 
records or communications, the military judge may issue protective 
orders or may admit only portions of the evidence.
    (5) The motion, related papers, and the record of the hearing must 
be sealed in accordance with R.C.M. 1103A and must remain under seal 
unless the military judge or an appellate court orders otherwise.

Rule 601. Competency to Testify in General

    Every person is competent to be a witness unless these rules 
provide otherwise.

Rule 602. Need for Personal Knowledge

    A witness may testify to a matter only if evidence is introduced 
sufficient to support a finding that the witness has personal knowledge 
of the matter. Evidence to prove personal knowledge may consist of the 
witness's own testimony. This rule does not apply to a witness's expert 
testimony under Mil. R. Evid. 703.

Rule 603. Oath or Affirmation To Testify Truthfully

    Before testifying, a witness must give an oath or affirmation to 
testify truthfully. It must be in a form designed to impress that duty 
on the witness's conscience.

Rule 604. Interpreter

    An interpreter must be qualified and must give an oath or 
affirmation to make a true translation.

Rule 605. Military Judge's Competency as a Witness

    (a) The presiding military judge may not testify as a witness at 
any proceeding of that court-martial. A party need not object to 
preserve the issue.
    (b) This rule does not preclude the military judge from placing on 
the record matters concerning docketing of the case.

Rule 606. Member's Competency as a Witness

    (a) At the Trial by Court-Martial. A member of a court-martial may 
not testify as a witness before the other members at any proceeding of 
that court-martial. If a member is called to testify, the military 
judge must--except in a special court-martial without a military 
judge--give the opposing party an opportunity to object outside the 
presence of the members.
    (b) During an Inquiry into the Validity of a Finding or Sentence.
    (1) Prohibited Testimony or Other Evidence. During an inquiry into 
the validity of a finding or sentence, a member of a court-martial may 
not testify about any statement made or incident that occurred during 
the deliberations of that court-martial; the effect of anything on that 
member's or another member's vote; or any member's mental processes 
concerning the finding or sentence. The military judge may not receive 
a member's affidavit or evidence of a member's statement on these 
matters.
    (2) Exceptions. A member may testify about whether:
    (A) Extraneous prejudicial information was improperly brought to 
the members' attention;
    (B) Unlawful command influence or any other outside influence was 
improperly brought to bear on any member; or
    (C) A mistake was made in entering the finding or sentence on the 
finding or sentence forms.

Rule 607. Who May Impeach a Witness

    Any party, including the party that called the witness, may attack 
the witness's credibility.

Rule 608. A Witness's Character for Truthfulness or Untruthfulness

    (a) Reputation or Opinion Evidence. A witness's credibility may be 
attacked or supported by testimony about the witness's reputation for 
having a character for truthfulness or untruthfulness, or by testimony 
in the form of an opinion about that character. Evidence of truthful 
character is admissible only after the witness's character for 
truthfulness has been attacked.
    (b) Specific Instances of Conduct. Except for a criminal conviction 
under Mil. R. Evid. 609, extrinsic evidence is not admissible to prove 
specific instances of a witness's conduct in order to attack or support 
the witness's character for truthfulness. The military judge may, on 
cross-examination, allow them to be inquired into if they are probative 
of the character for truthfulness or untruthfulness of:
    (1) The witness; or
    (2) Another witness whose character the witness being cross-
examined has testified about.
    By testifying on another matter, a witness does not waive any 
privilege against self-incrimination for testimony that relates only to 
the witness's character for truthfulness.
    (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 a Criminal Conviction

    (a) In General. The following rules apply to attacking a witness's 
character for truthfulness by evidence of a criminal conviction:
    (1) For a crime that, in the convicting jurisdiction, was 
punishable by death, dishonorable discharge, or by imprisonment for 
more than one year, the evidence:
    (A) Must be admitted, subject to Mil. R. Evid. 403, in a court-
martial in which the witness is not the accused; and
    (B) Must be admitted in a court-martial in which the witness is the 
accused, if the probative value of the evidence outweighs its 
prejudicial effect to that accused; and
    (2) For any crime regardless of the punishment, the evidence must 
be admitted if the court can readily determine that establishing the 
elements of the crime required proving--or the

[[Page 15079]]

witness's admitting--a dishonest act or false statement.
    (3) 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) Limit on Using the Evidence After 10 Years. This subdivision 
(b) applies if more than 10 years have passed since the witness's 
conviction or release from confinement for it, whichever is later. 
Evidence of the conviction is admissible only if:
    (1) Its probative value, supported by specific facts and 
circumstances, substantially outweighs its prejudicial effect; and
    (2) The proponent gives an adverse party reasonable written notice 
of the intent to use it so that the party has a fair opportunity to 
contest its use.
    (c) Effect of a Pardon, Annulment, or Certificate of 
Rehabilitation. Evidence of a conviction is not admissible if:
    (1) The conviction has been the subject of a pardon, annulment, 
certificate of rehabilitation, or other equivalent procedure based on a 
finding that the person has been rehabilitated, and the person has not 
been convicted of a later crime punishable by death, dishonorable 
discharge, or imprisonment for more than 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 a juvenile adjudication is 
admissible under this rule only if:
    (1) The adjudication was of a witness other than the accused;
    (2) An adult's conviction for that offense would be admissible to 
attack the adult's credibility; and
    (3) Admitting the evidence is necessary to fairly determine guilt 
or innocence.
    (e) Pendency of an Appeal. A conviction that satisfies this rule is 
admissible even if an appeal is pending, 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 under Article 64 or Article 66, if applicable. Evidence of 
the pendency is also 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 a witness's religious beliefs or opinions is not 
admissible to attack or support the witness's credibility.

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

    (a) Control by the Military Judge; Purposes. The military judge 
should exercise reasonable control over the mode and order of examining 
witnesses and presenting evidence so as to:
    (1) Make those procedures effective for determining the truth;
    (2) Avoid wasting time; and
    (3) Protect witnesses from harassment or undue embarrassment.
    (b) Scope of Cross-Examination. Cross-examination should not go 
beyond the subject matter of the direct examination and matters 
affecting the witness's credibility. The military judge may allow 
inquiry into additional matters as if on direct examination.
    (c) Leading Questions. Leading questions should not be used on 
direct examination except as necessary to develop the witness's 
testimony. Ordinarily, the military judge should allow leading 
questions:
    (1) On cross-examination; and
    (2) When a party calls a hostile witness or a witness identified 
with an adverse party.
    (d) Remote live testimony of a child.
    (1) In a case involving domestic violence or the abuse of a child, 
the military judge must, subject to the requirements of subdivision (3) 
of this rule, allow a child victim or witness to testify from an area 
outside the courtroom as prescribed in R.C.M. 914A.
    (2) Definitions. As used in this rule:
    (A) ``Child'' means a person who is under the age of 16 at the time 
of his or her testimony.
    (B) ``Abuse of a child'' means the physical or mental injury, 
sexual abuse or exploitation, or negligent treatment of a child.
    (C) ``Exploitation'' means child pornography or child prostitution.
    (D) ``Negligent treatment'' means the failure to provide, for 
reasons other than poverty, adequate food, clothing, shelter, or 
medical care so as to endanger seriously the physical health of the 
child.
    (E) ``Domestic violence'' means an offense that has as an element 
the use, or attempted or threatened use of physical force against a 
person by a current or former spouse, parent, or guardian of the 
victim; by a person with whom the victim shares a child in common; by a 
person who is cohabiting with or has cohabited with the victim as a 
spouse, parent, or guardian; or by a person similarly situated to a 
spouse, parent, or guardian of the victim.
    (3) Remote live testimony will be used only where the military 
judge makes the following three findings on the record:
    (A) That it is necessary to protect the welfare of the particular 
child witness;
    (B) That the child witness would be traumatized, not by the 
courtroom generally, but by the presence of the defendant; and
    (C) That the emotional distress suffered by the child witness in 
the presence of the defendant is more than de minimis.
    (4) Remote live testimony of a child will not be used when the 
accused elects to absent himself from the courtroom in accordance with 
R.C.M. 804(d).
    (5) In making a determination under subdivision (d)(3), the 
military judge may question the child in chambers, or at some 
comfortable place other than the courtroom, on the record for a 
reasonable period of time, in the presence of the child, a 
representative of the prosecution, a representative of the defense, and 
the child's attorney or guardian ad litem.

Rule 612. Writing Used To Refresh a Witness's Memory

    (a) Scope. This rule gives an adverse party certain options when a 
witness uses a writing to refresh memory:
    (1) While testifying; or
    (2) Before testifying, if the military judge decides that justice 
requires the party to have those options.
    (b) Adverse Party's Options; Deleting Unrelated Matter. An adverse 
party is entitled to have the writing produced at the hearing, to 
inspect it, to cross-examine the witness about it, and to introduce in 
evidence any portion that relates to the witness's testimony. If the 
producing party claims that the writing includes unrelated or 
privileged matter, the military judge must examine the writing in 
camera, delete any unrelated or privileged portion, and order that the 
rest be delivered to the adverse party. Any portion deleted over 
objection must be preserved for the record.
    (c) Failure to Produce or Deliver the Writing. If a writing is not 
produced or is not delivered as ordered, the military judge may issue 
any appropriate order. If the prosecution does not comply, the military 
judge must strike the witness's testimony or--if justice so requires--
declare a mistrial.
    (d) No Effect on Other Disclosure Requirements. This rule does not 
preclude disclosure of information

[[Page 15080]]

required to be disclosed under other provisions of these rules or this 
Manual.

Rule 613. Witness's Prior Statement

    (a) Showing or Disclosing the Statement During Examination. When 
examining a witness about the witness's prior statement, a party need 
not show it or disclose its contents to the witness. The party must, on 
request, show it or disclose its contents to an adverse party's 
attorney.
    (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic 
evidence of a witness's prior inconsistent statement is admissible only 
if the witness is given an opportunity to explain or deny the statement 
and an adverse party is given an opportunity to examine the witness 
about it, or if justice so requires. This subdivision (b) does not 
apply to an opposing party's statement under Mil. R. Evid. 801(d)(2).

Rule 614. Court-Martial's Calling or Examining a Witness

    (a) Calling. The military judge may--sua sponte or at the request 
of the members or the suggestion of a party--call a witness. Each party 
is entitled to cross-examine the witness. When the members wish to call 
or recall a witness, the military judge must determine whether the 
testimony would be relevant and not barred by any rule or provision of 
this Manual.
    (b) Examining. The military judge or members may examine a witness 
regardless of who calls the witness. Members must submit their 
questions to the military judge in writing. Following the opportunity 
for review by both parties, the military judge must rule on the 
propriety of the questions, and ask the questions in an acceptable form 
on behalf of the members. When the military judge or the members call a 
witness who has not previously testified, the military judge may 
conduct the direct examination or may assign the responsibility to 
counsel for any party.
    (c) Objections. A party may object to the court-martial's calling 
or examining a witness either at that time or at the next opportunity 
when the members are not present.

Rule 615. Excluding Witnesses

    At a party's request, the military judge must order witnesses 
excluded so that they cannot hear other witnesses' testimony, or the 
military judge may do so sua sponte. This rule does not authorize 
excluding:
    (a) The accused;
    (b) A member of an armed service or an employee of the United 
States after being designated as a representative of the United States 
by the trial counsel;
    (c) A person whose presence a party shows to be essential to 
presenting the party's case;
    (d) A person authorized by statute to be present; or
    (e) A victim of an offense from the trial of an accused for that 
offense, when the sole basis for exclusion would be that the victim may 
testify or present information during the presentencing phase of the 
trial.

Rule 701. Opinion Testimony by Lay Witnesses

    If a witness is not testifying as an expert, testimony in the form 
of an opinion is limited to one that is:
    (a) Rationally based on the witness's perception;
    (b) Helpful to clearly understanding the witness's testimony or to 
determining a fact in issue; and
    (c) Not based on scientific, technical, or other specialized 
knowledge within the scope of Mil. R. Evid. 702.

Rule 702. Testimony by Expert Witnesses

    A witness who is qualified as an expert by knowledge, skill, 
experience, training, or education may testify in the form of an 
opinion or otherwise if:
    (a) The expert's scientific, technical, or other specialized 
knowledge will help the trier of fact to understand the evidence or to 
determine a fact in issue;
    (b) The testimony is based on sufficient facts or data;
    (c) The testimony is the product of reliable principles and 
methods; and
    (d) The expert has reliably applied the principles and methods to 
the facts of the case.

Rule 703. Bases of an Expert's Opinion Testimony

    An expert may base an opinion on facts or data in the case that the 
expert has been made aware of or personally observed. If experts in the 
particular field would reasonably rely on those kinds of facts or data 
in forming an opinion on the subject, they need not be admissible for 
the opinion to be admitted. If the facts or data would otherwise be 
inadmissible, the proponent of the opinion may disclose them to the 
members of a court-martial only if the military judge finds that their 
probative value in helping the members evaluate the opinion 
substantially outweighs their prejudicial effect.

Rule 704. Opinion on an Ultimate Issue

    An opinion is not objectionable just because it embraces an 
ultimate issue.

Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion

    Unless the military judge orders otherwise, an expert may state an 
opinion--and give the reasons for it--without first testifying to the 
underlying facts or data. The expert may be required to disclose those 
facts or data on cross-examination.

Rule 706. Court-Appointed Expert Witnesses

    (a) Appointment Process. The trial counsel, the defense counsel, 
and the court-martial have equal opportunity to obtain expert witnesses 
under Article 46 and R.C.M. 703.
    (b) Compensation. The compensation of expert witnesses is governed 
by R.C.M. 703.
    (c) Accused's Choice of Experts. This rule does not limit an 
accused in calling any expert at the accused's own expense.

Rule 707. Polygraph Examinations

    (a) Prohibitions. Notwithstanding any other provision of law, the 
result of a polygraph examination, the polygraph examiner's opinion, or 
any reference to an offer to take, failure to take, or taking of a 
polygraph examination is not admissible.
    (b) Statements Made During a Polygraph Examination. This rule does 
not prohibit admission of an otherwise admissible statement made during 
a polygraph examination.

Rule 801. Definitions That Apply to This Section; Exclusions From 
Hearsay

    (a) Statement. ``Statement'' means a person's oral assertion, 
written assertion, or nonverbal conduct, if the person intended it as 
an assertion.
    (b) Declarant. ``Declarant'' means the person who made the 
statement.
    (c) Hearsay. ``Hearsay'' means a statement that:
    (1) The declarant does not make while testifying at the current 
trial or hearing; and
    (2) A party offers in evidence to prove the truth of the matter 
asserted in the statement.
    (d) Statements that Are Not Hearsay. A statement that meets the 
following conditions is not hearsay:
    (1) A Declarant-Witness's Prior Statement. The declarant testifies 
and is subject to cross-examination about a prior statement, and the 
statement:
    (A) Is inconsistent with the declarant's testimony and was given 
under penalty of perjury at a trial, hearing, or other proceeding or in 
a deposition;
    (B) Is consistent with the declarant's testimony and is offered to 
rebut an

[[Page 15081]]

express or implied charge that the declarant recently fabricated it or 
acted from a recent improper influence or motive in so testifying; or
    (C) Identifies a person as someone the declarant perceived earlier.
    (2) An Opposing Party's Statement. The statement is offered against 
an opposing party and:
    (A) Was made by the party in an individual or representative 
capacity;
    (B) Is one the party manifested that it adopted or believed to be 
true;
    (C) Was made by a person whom the party authorized to make a 
statement on the subject;
    (D) Was made by the party's agent or employee on a matter within 
the scope of that relationship and while it existed; or
    (E) Was made by the party's co-conspirator during and in 
furtherance of the conspiracy.
    The statement must be considered but does not by itself establish 
the declarant's authority under (C); the existence or scope of the 
relationship under (D); or the existence of the conspiracy or 
participation in it under (E).

Rule 802. The Rule Against Hearsay

    Hearsay is not admissible unless any of the following provides 
otherwise:
    (a) A federal statute applicable in trial by courts-martial; or
    (b) These rules.

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether 
the Declarant Is Available as a Witness

    The following are not excluded by the rule against hearsay, 
regardless of whether the declarant is available as a witness:
    (1) Present Sense Impression. A statement describing or explaining 
an event or condition, made while or immediately after the declarant 
perceived it.
    (2) Excited Utterance. A statement relating to a startling event or 
condition, made while the declarant was under the stress of excitement 
that it caused.
    (3) Then-Existing Mental, Emotional, or Physical Condition. A 
statement of the declarant's then-existing state of mind (such as 
motive, intent, or plan) or emotional, sensory, or physical condition 
(such as mental feeling, pain, or bodily health), but not including a 
statement of memory or belief to prove the fact remembered or believed 
unless it relates to the validity or terms of the declarant's will.
    (4) Statement Made for Medical Diagnosis or Treatment. A statement 
that--
    (A) Is made for--and is reasonably pertinent to--medical diagnosis 
or treatment; and
    (B) Describes medical history; past or present symptoms or 
sensations; their inception; or their general cause.
    (5) Recorded Recollection. A record that:
    (A) Is on a matter the witness once knew about but now cannot 
recall well enough to testify fully and accurately;
    (B) Was made or adopted by the witness when the matter was fresh in 
the witness's memory; and
    (C) Accurately reflects the witness's knowledge.
    If admitted, the record may be read into evidence but may be 
received as an exhibit only if offered by an adverse party.
    (6) Records of a Regularly Conducted Activity. A record of an act, 
event, condition, opinion, or diagnosis if:
    (A) The record was made at or near the time by--or from information 
transmitted by--someone with knowledge;
    (B) the record was kept in the course of a regularly conducted 
activity of a uniformed service, business, institution, association, 
profession, organization, occupation, or calling of any kind, whether 
or not conducted for profit;
    (C) Making the record was a regular practice of that activity;
    (D) All these conditions are shown by the testimony of the 
custodian or another qualified witness, or by a certification that 
complies with Mil. R. Evid. 902(11) or with a statute permitting 
certification in a criminal proceeding in a court of the United States; 
and
    (E) Neither the source of information nor the method or 
circumstances of preparation indicate a lack of trustworthiness.
    Records of regularly conducted activities include, but are not 
limited to, enlistment papers, physical examination papers, 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 a Record of a Regularly Conducted Activity. Evidence 
that a matter is not included in a record described in paragraph (6) 
if:
    (A) The evidence is admitted to prove that the matter did not occur 
or exist;
    (B) A record was regularly kept for a matter of that kind; and
    (C) Neither the possible source of the information nor other 
circumstances indicate a lack of trustworthiness.
    (8) Public Records. A record or statement of a public office if:
    (A) It sets out:
    (i) The office's activities;
    (ii) A matter observed while under a legal duty to report, but not 
including a matter observed by law-enforcement personnel and other 
personnel acting in a law enforcement capacity; or
    (iii) Against the government, factual findings from a legally 
authorized investigation; and
    (B) Neither the source of information nor other circumstances 
indicate a lack of trustworthiness.
    Notwithstanding (A)(ii), 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, fingerprint 
cards, forensic laboratory reports, chain of custody documents, morning 
reports and other personnel accountability documents, service records, 
officer and enlisted qualification records, court-martial conviction 
records, logs, unit personnel diaries, individual equipment records, 
daily strength records of prisoners, and rosters of prisoners.
    (9) Public Records of Vital Statistics. A record of a birth, death, 
or marriage, if reported to a public office in accordance with a legal 
duty.
    (10) Absence of a Public Record. Testimony--or a certification 
under Mil. R. Evid. 902--that a diligent search failed to disclose a 
public record or statement if the testimony or certification is 
admitted to prove that:
    (A) The record or statement does not exist; or
    (B) A matter did not occur or exist, if a public office regularly 
kept a record or statement for a matter of that kind.
    (11) Records of Religious Organizations Concerning Personal or 
Family History. A statement of birth, legitimacy, ancestry, marriage, 
divorce, death, relationship by blood or marriage, or similar facts of 
personal or family history, contained in a regularly kept record of a 
religious organization.
    (12) Certificates of Marriage, Baptism, and Similar Ceremonies. A 
statement of fact contained in a certificate:
    (A) Made by a person who is authorized by a religious organization 
or by law to perform the act certified;
    (B) Attesting that the person performed a marriage or similar 
ceremony or administered a sacrament; and

[[Page 15082]]

    (C) Purporting to have been issued at the time of the act or within 
a reasonable time after it.
    (13) Family Records. A statement of fact about personal or family 
history contained in a family record, such as a Bible, genealogy, 
chart, engraving on a ring, inscription on a portrait, or engraving on 
an urn or burial marker.
    (14) Records of Documents that Affect an Interest in Property. The 
record of a document that purports to establish or affect an interest 
in property if:
    (A) The record is admitted to prove the content of the original 
recorded document, along with its signing and its delivery by each 
person who purports to have signed it;
    (B) The record is kept in a public office; and
    (C) A statute authorizes recording documents of that kind in that 
office.
    (15) Statements in Documents that Affect an Interest in Property. A 
statement contained in a document that purports to establish or affect 
an interest in property if the matter stated was relevant to the 
document's purpose unless later dealings with the property are 
inconsistent with the truth of the statement or the purport of the 
document.
    (16) Statements in Ancient Documents. A statement in a document 
that is at least 20 years old and whose authenticity is established.
    (17) Market Reports and Similar Commercial Publications. Market 
quotations, lists (including government price lists), directories, or 
other compilations that are generally relied on by the public or by 
persons in particular occupations.
    (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A 
statement contained in a treatise, periodical, or pamphlet if:
    (A) The statement is called to the attention of an expert witness 
on cross-examination or relied on by the expert on direct examination; 
and
    (B) The publication is established as a reliable authority by the 
expert's admission or testimony, by another expert's testimony, or by 
judicial notice. If admitted, the statement may be read into evidence 
but not received as an exhibit.
    (19) Reputation Concerning Personal or Family History. A reputation 
among a person's family by blood, adoption, or marriage--or among a 
person's associates or in the community--concerning the person's birth, 
adoption, legitimacy, ancestry, marriage, divorce, death, relationship 
by blood, adoption, or marriage, or similar facts of personal or family 
history.
    (20) Reputation Concerning Boundaries or General History. A 
reputation in a community--arising before the controversy--concerning 
boundaries of land in the community or customs that affect the land, or 
concerning general historical events important to that community, 
state, or nation.
    (21) Reputation Concerning Character. A reputation among a person's 
associates or in the community concerning the person's character.
    (22) Judgment of a Previous Conviction. Evidence of a final 
judgment of conviction if:
    (A) The judgment was entered after a trial or guilty plea, but not 
a nolo contendere plea;
    (B) The conviction was for a crime punishable by death, 
dishonorable discharge, or by imprisonment for more than a year;
    (C) The evidence is admitted to prove any fact essential to the 
judgment; and
    (D) When offered by the prosecutor for a purpose other than 
impeachment, the judgment was against 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 for 
more than one year, the maximum punishment prescribed by the President 
under Article 56 of the Uniform Code of Military Justice at the time of 
the conviction applies without regard to whether the case was tried by 
general, special, or summary court-martial.
    (23) Judgments Involving Personal, Family, or General History, or a 
Boundary. A judgment that is admitted to prove a matter of personal, 
family, or general history, or boundaries, if the matter:
    (A) Was essential to the judgment; and
    (B) Could be proved by evidence of reputation.

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is 
Unavailable as a Witness

    (a) Criteria for Being Unavailable. A declarant is considered to be 
unavailable as a witness if the declarant:
    (1) Is exempted from testifying about the subject matter of the 
declarant's statement because the military judge rules that a privilege 
applies;
    (2) Refuses to testify about the subject matter despite the 
military judge's order to do so;
    (3) Testifies to not remembering the subject matter;
    (4) Cannot be present or testify at the trial or hearing because of 
death or a then-existing infirmity, physical illness, or mental 
illness; or
    (5) Is absent from the trial or hearing and the statement's 
proponent has not been able, by process or other reasonable means, to 
procure:
    (A) The declarant's attendance, in the case of a hearsay exception 
under subdivision (b)(1) or (b)(5);
    (B) The declarant's attendance or testimony, in the case of a 
hearsay exception under subdivision (b)(2), (b)(3), or (b)(4); or
    (6) Is unavailable within the meaning of Article 49(d)(2).
    This subdivision (a) does not apply if the statement's proponent 
procured or wrongfully caused the declarant's unavailability as a 
witness in order to prevent the declarant from attending or testifying.
    (b) The Exceptions. The following are exceptions to the rule 
against hearsay, and are not excluded by that rule if the declarant is 
unavailable as a witness:
    (1) Former Testimony. Testimony that:
    (A) Was given by a witness at a trial, hearing, or lawful 
deposition, whether given during the current proceeding or a different 
one; and
    (B) Is now offered against a party who had an opportunity and 
similar motive to develop it by direct, cross-, or redirect 
examination.
    Subject to the limitations in Articles 49 and 50, a record of 
testimony given before a court-martial, court of inquiry, military 
commission, other military tribunal, or pretrial investigation under 
Article 32 is admissible under this subdivision (b)(1) if the record of 
the testimony is a verbatim record.
    (2) Statement under the Belief of Imminent Death. In a prosecution 
for any offense resulting in the death of the alleged victim, a 
statement that the declarant, while believing the declarant's death to 
be imminent, made about its cause or circumstances.
    (3) Statement against Interest. A statement that:
    (A) A reasonable person in the declarant's position would have made 
only if the person believed it to be true because, when made, it was so 
contrary to the declarant's proprietary or pecuniary interest or had so 
great a tendency to invalidate the declarant's claim against someone 
else or to expose the declarant to civil or criminal liability; and
    (B) Is supported by corroborating circumstances that clearly 
indicate its trustworthiness, if it tends to expose the declarant to 
criminal liability and is offered to exculpate the accused.
    (4) Statement of Personal or Family History. A statement about:

[[Page 15083]]

    (A) The declarant's own birth, adoption, legitimacy, ancestry, 
marriage, divorce, relationship by blood or marriage, or similar facts 
of personal or family history, even though the declarant had no way of 
acquiring personal knowledge about that fact; or
    (B) Another person concerning any of these facts, as well as death, 
if the declarant was related to the person by blood, adoption, or 
marriage or was so intimately associated with the person's family that 
the declarant's information is likely to be accurate.
    (5) Other Exceptions. [Transferred to M.R.E. 807]
    (6) Statement Offered against a Party that Wrongfully Caused the 
Declarant's Unavailability. A statement offered against a party that 
wrongfully caused or acquiesced in wrongfully causing the declarant's 
unavailability as a witness, and did so intending that result.

Rule 805. Hearsay Within Hearsay

    Hearsay within hearsay is not excluded by the rule against hearsay 
if each part of the combined statements conforms with an exception or 
exclusion to the rule.

Rule 806. Attacking and Supporting the Declarant's Credibility

    When a hearsay statement--or a statement described in Mil. R. Evid. 
801(d)(2)(C), (D), or (E)--has been admitted in evidence, the 
declarant's credibility may be attacked, and then supported, by any 
evidence that would be admissible for those purposes if the declarant 
had testified as a witness. The military judge may admit evidence of 
the declarant's inconsistent statement or conduct, regardless of when 
it occurred or whether the declarant had an opportunity to explain or 
deny it. If the party against whom the statement was admitted calls the 
declarant as a witness, the party may examine the declarant on the 
statement as if on cross-examination.

Rule 807. Residual Exception

    (a) In General. Under the following circumstances, a hearsay 
statement is not excluded by the rule against hearsay even if the 
statement is not specifically covered by a hearsay exception in Mil. R. 
Evid. 803 or 804:
    (1) The statement has equivalent circumstantial guarantees of 
trustworthiness;
    (2) It is offered as evidence of a material fact;
    (3) It is more probative on the point for which it is offered than 
any other evidence that the proponent can obtain through reasonable 
efforts; and
    (4) Admitting it will best serve the purposes of these rules and 
the interests of justice.
    (b) Notice. The statement is admissible only if, before the trial 
or hearing, the proponent gives an adverse party reasonable notice of 
the intent to offer the statement and its particulars, including the 
declarant's name and address, so that the party has a fair opportunity 
to meet it.

Rule 901. Authenticating or Identifying Evidence

    (a) In General. To satisfy the requirement of authenticating or 
identifying an item of evidence, the proponent must produce evidence 
sufficient to support a finding that the item is what the proponent 
claims it is.
    (b) Examples. The following are examples only--not a complete 
list--of evidence that satisfies the requirement:
    (1) Testimony of a Witness with Knowledge. Testimony that an item 
is what it is claimed to be.
    (2) Nonexpert Opinion about Handwriting. A nonexpert's opinion that 
handwriting is genuine, based on a familiarity with it that was not 
acquired for the current litigation.
    (3) Comparison by an Expert Witness or the Trier of Fact. A 
comparison with an authenticated specimen by an expert witness or the 
trier of fact.
    (4) Distinctive Characteristics and the Like. The appearance, 
contents, substance, internal patterns, or other distinctive 
characteristics of the item, taken together with all the circumstances.
    (5) Opinion about a Voice. An opinion identifying a person's 
voice--whether heard firsthand or through mechanical or electronic 
transmission or recording--based on hearing the voice at any time under 
circumstances that connect it with the alleged speaker.
    (6) Evidence about a Telephone Conversation. For a telephone 
conversation, evidence that a call was made to the number assigned at 
the time to:
    (A) A particular person, if circumstances, including self-
identification, show that the person answering was the one called; or
    (B) A particular business, if the call was made to a business and 
the call related to business reasonably transacted over the telephone.
    (7) Evidence about Public Records. Evidence that:
    (A) A document was recorded or filed in a public office as 
authorized by law; or
    (B) A purported public record or statement is from the office where 
items of this kind are kept.
    (8) Evidence about Ancient Documents or Data Compilations. For a 
document or data compilation, evidence that it:
    (A) Is in a condition that creates no suspicion about its 
authenticity;
    (B) Was in a place where, if authentic, it would likely be; and
    (C) Is at least 20 years old when offered.
    (9) Evidence about a Process or System. Evidence describing a 
process or system and showing that it produces an accurate result.
    (10) Methods Provided by a Statute or Rule. Any method of 
authentication or identification allowed by a federal statute, a rule 
prescribed by the Supreme Court, or an applicable regulation prescribed 
pursuant to statutory authority.

Rule 902. Evidence That Is Self-Authenticating

    The following items of evidence are self-authenticating; they 
require no extrinsic evidence of authenticity in order to be admitted:
    (1) Domestic Public Documents that are Sealed and Signed. A 
document that bears:
    (A) A seal purporting to be that of the United States; any state, 
district, commonwealth, territory, or insular possession of the United 
States; the former Panama Canal Zone; the Trust Territory of the 
Pacific Islands; a political subdivision of any of these entities; or a 
department, agency, or officer of any entity named above; and
    (B) A signature purporting to be an execution or attestation.
    (2) Domestic Public Documents that are Not Sealed but are Signed 
and Certified. A document that bears no seal if:
    (A) It bears the signature of an officer or employee of an entity 
named in subdivision (1)(A) above; and
    (B) Another public officer who has a seal and official duties 
within that same entity certifies under seal--or its equivalent--that 
the signer has the official capacity and that the signature is genuine.
    (3) Foreign Public Documents. A document that purports to be signed 
or attested by a person who is authorized by a foreign country's law to 
do so. The document must be accompanied by a final certification that 
certifies the genuineness of the signature and official position of the 
signer or attester--or of any foreign official whose certificate of 
genuineness relates to the signature or attestation or is in a chain of 
certificates of genuineness relating to the signature or attestation. 
The certification may be made by a secretary of a United States

[[Page 15084]]

embassy or legation; by a consul general, vice consul, or consular 
agent of the United States; or by a diplomatic or consular official of 
the foreign country assigned or accredited to the United States. If all 
parties have been given a reasonable opportunity to investigate the 
document's authenticity and accuracy, the military judge may, for good 
cause, either:
    (A) Order that it be treated as presumptively authentic without 
final certification; or
    (B) Allow it 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 a copy of a document that was recorded or filed in a public 
office as authorized by law--if the copy is certified as correct by:
    (A) The custodian or another person authorized to make the 
certification; or
    (B) A certificate that complies with subdivision (1), (2), or (3) 
above, a federal statute, a rule prescribed by the Supreme Court, 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. A book, pamphlet, or other publication 
purporting to be issued by a public authority.
    (6) Newspapers and Periodicals. Printed material purporting to be a 
newspaper or periodical.
    (7) Trade Inscriptions and the Like. An inscription, sign, tag, or 
label purporting to have been affixed in the course of business and 
indicating origin, ownership, or control.
    (8) Acknowledged Documents. A document accompanied by a certificate 
of acknowledgment that is lawfully executed by a notary public or 
another officer who is authorized to take acknowledgments.
    (9) Commercial Paper and Related Documents. Commercial paper, a 
signature on it, and related documents, to the extent allowed by 
general commercial law.
    (10) Presumptions under a Federal Statute or Regulation. A 
signature, document, or anything else that a federal statute, or an 
applicable regulation prescribed pursuant to statutory authority, 
declares to be presumptively or prima facie genuine or authentic.
    (11) Certified Domestic Records of a Regularly Conducted Activity. 
The original or a copy of a domestic record that meets the requirements 
of Mil. R. Evid. 803(6)(A)-(C), as shown by a certification of the 
custodian or another qualified person that complies with a federal 
statute or a rule prescribed by the Supreme Court. Before the trial or 
hearing, or at a later time that the military judge allows for good 
cause, the proponent must give an adverse party reasonable written 
notice of the intent to offer the record and must make the record and 
certification available for inspection so that the party has a fair 
opportunity to challenge them.

Rule 903. Subscribing Witness's Testimony

    A subscribing witness's testimony is necessary to authenticate a 
writing only if required by the law of the jurisdiction that governs 
its validity.

Rule 1001. Definitions That Apply to This Section

    In this section:
    (a) A ``writing'' consists of letters, words, numbers, or their 
equivalent set down in any form.
    (b) A ``recording'' consists of letters, words, numbers, or their 
equivalent recorded in any manner.
    (c) A ``photograph'' means a photographic image or its equivalent 
stored in any form.
    (d) An ``original'' of a writing or recording means the writing or 
recording itself or any counterpart intended to have the same effect by 
the person who executed or issued it. For electronically stored 
information, ``original'' means any printout or other output readable 
by sight if it accurately reflects the information. An ``original'' of 
a photograph includes the negative or a print from it.
    (e) A ``duplicate'' means a counterpart produced by a mechanical, 
photographic, chemical, electronic, or other equivalent process or 
technique that accurately reproduces the original.

Rule 1002. Requirement of the Original

    An original writing, recording, or photograph is required in order 
to prove its content unless these rules, this Manual, or a federal 
statute provides otherwise.

Rule 1003. Admissibility of Duplicates

    A duplicate is admissible to the same extent as the original unless 
a genuine question is raised about the original's authenticity or the 
circumstances make it unfair to admit the duplicate.

Rule 1004. Admissibility of Other Evidence of Content

    An original is not required and other evidence of the content of a 
writing, recording, or photograph is admissible if:
    (a) All the originals are lost or destroyed, and not by the 
proponent acting in bad faith;
    (b) An original cannot be obtained by any available judicial 
process;
    (c) The party against whom the original would be offered had 
control of the original; was at that time put on notice, by pleadings 
or otherwise, that the original would be a subject of proof at the 
trial or hearing; and fails to produce it at the trial or hearing; or
    (d) The writing, recording, or photograph is not closely related to 
a controlling issue.

Rule 1005. Copies of Public Records To Prove Content

    The proponent may use a copy to prove the content of an official 
record--or of a document that was recorded or filed in a public office 
as authorized by law--if these conditions are met: The record or 
document is otherwise admissible; and the copy is certified as correct 
in accordance with Mil. R. Evid. 902(4) or is testified to be correct 
by a witness who has compared it with the original. If no such copy can 
be obtained by reasonable diligence, then the proponent may use other 
evidence to prove the content.

Rule 1006. Summaries To Prove Content

    The proponent may use a summary, chart, or calculation to prove the 
content of voluminous writings, recordings, or photographs that cannot 
be conveniently examined in court. The proponent must make the 
originals or duplicates available for examination or copying, or both, 
by other parties at a reasonable time or place. The military judge may 
order the proponent to produce them in court.

Rule 1007. Testimony or Statement of a Party To Prove Content

    The proponent may prove the content of a writing, recording, or 
photograph by the testimony, deposition, or written statement of the 
party against whom the evidence is offered. The proponent need not 
account for the original.

Rule 1008. Functions of the Military Judge and the Members

    Ordinarily, the military judge determines whether the proponent has 
fulfilled the factual conditions for admitting other evidence of the 
content of a writing, recording, or photograph under Mil. R. Evid. 1004 
or 1005. When

[[Page 15085]]

a court-martial is composed of a military judge and members, the 
members determine--in accordance with Mil. R. Evid. 104(b)--any issue 
about whether:
    (a) An asserted writing, recording, or photograph ever existed;
    (b) Another one produced at the trial or hearing is the original; 
or
    (c) Other evidence of content accurately reflects the content.

Rule 1101. Applicability of These Rules

    (a) In General. Except as otherwise provided in this Manual, these 
rules apply generally to all courts-martial, including summary courts-
martial, Article 39(a) sessions, limited factfinding proceedings 
ordered on review, proceedings in revision, and contempt proceedings 
other than contempt proceedings in which the judge may act summarily.
    (b) Rules Relaxed. The application of these rules may be relaxed in 
presentencing proceedings as provided under R.C.M. 1001 and otherwise 
as provided in this Manual.
    (c) Rules on Privilege. The rules on privilege apply at all stages 
of a case or proceeding.
    (d) Exceptions. These rules--except for Mil. R. Evid. 412 and those 
on privilege--do not apply to the following:
    (1) The military judge's determination, under Rule 104(a), on a 
preliminary question of fact governing admissibility;
    (2) Pretrial investigations under Article 32;
    (3) Proceedings for vacation of suspension of sentence under 
Article 72; and
    (4) Miscellaneous actions and proceedings related to search 
authorizations, pretrial restraint, pretrial confinement, or other 
proceedings authorized under the Uniform Code of Military Justice or 
this Manual that are not listed in subdivision (a).

Rule 1102. Amendments

    (a) General Rule. Amendments to the Federal Rules of Evidence--
other than Articles III and V--will amend parallel provisions of the 
Military Rules of Evidence by operation of law 18 months after the 
effective date of such amendments, unless action to the contrary is 
taken by the President.
    (b) Rules Determined Not to Apply. The President has determined 
that the following Federal Rules of Evidence do not apply to the 
Military Rules of Evidence: Rules 301, 302, 415, and 902(12).

Rule 1103. Title

    These rules may be cited as the Military Rules of Evidence.
Changes to the Discussion Accompanying the Manual for Courts Martial, 
United States
    (a) A new Discussion is added following Mil. R. Evid. 101(c):
``DISCUSSION
    Discussion was added to these Rules in 2012 and is intended to 
serve as a treatise. The Discussion itself, however, does not have the 
force of law, even though it may describe legal requirements derived 
from other sources. It is in the nature of treatise, and may be used as 
secondary authority. If a matter is included in a rule, it is intended 
that the matter be binding, unless it is clearly expressed as 
precatory. The Discussion will be revised from time to time as 
warranted by changes in applicable law. See Composition of the Manual 
for Courts-Martial in Appendix 21.
    Practitioners should also refer to the Analysis of the Military 
Rules of Evidence contained in Appendix 22 of this Manual. The Analysis 
is similar to Committee Notes accompanying the Federal Rules of 
Evidence and is intended to address the basis of the rule, deviation 
from the Federal Rules of Evidence, relevant precedent, and drafter's 
intent.''
    (b) A new Discussion is added following Mil. R. Evid. 301(c):
``DISCUSSION
    A military judge is not required to provide Article 31 warnings. If 
a witness who seems uninformed of the privileges under this rule 
appears likely to incriminate himself or herself, the military judge 
may 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 ask the military 
judge to so advise a witness if such a request is made out of the 
hearing of the witness and the members, if present. Failure to so 
advise a witness does not make the testimony of the witness 
inadmissible.''
    (c) A new Discussion is added following Mil. R. Evid. 312(b)(2)(F):
``DISCUSSION
    An examination of the unclothed body under this rule should be 
conducted whenever practicable by a person of the same sex as that of 
the person being examined; however, failure to comply with this 
requirement does not make an examination an unlawful search within the 
meaning of Mil. R. Evid. 311.''
    (d) A new Discussion is added following Mil. R. Evid. 312(e):
``DISCUSSION
    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.''
    (e) A new Discussion is added following Mil. R. Evid. 312(f):
``DISCUSSION
    Nothing in this rule will 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 servicemember.''
    (f) A new Discussion is added following Mil. R. Evid. 314(c):
``DISCUSSION
    Searches under subdivision (c) 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; however, failure to comply with a 
treaty or agreement does not render a search unlawful within the 
meaning of Mil. R. Evid. 311.''
    (g) A new Discussion is added following Mil. R. Evid. 314(f)(2):
``DISCUSSION
    Subdivision (f)(2) requires that the official making the stop have 
a reasonable suspicion based on specific and articulable facts that the 
person being frisked is armed and dangerous. Officer safety is a 
factor, and the officer need not be absolutely certain that the 
individual detained is armed for the purposes of frisking or patting 
down that person's outer clothing for weapons. The test is whether a 
reasonably prudent person in similar circumstances would be warranted 
in a belief that his or her safety was in danger. The purpose of a 
frisk is to search for weapons or other dangerous items, including but 
not limited to: Firearms, knives, needles, or razor blades. A limited 
search of outer clothing for weapons serves to protect both the officer 
and the public; therefore, a frisk is reasonable under the Fourth 
Amendment.''
    (h) A new Discussion is added following Mil. R. Evid. 314(f)(3):
``DISCUSSION
    The official must limit the search to those areas within the 
passenger compartment in which a weapon may be placed or hidden. The 
scope of the search is similar to the ``stop and frisk'' defined in 
subdivision (f)(2) of this rule.

[[Page 15086]]

During the search for weapons, the official may seize any item that is 
immediately apparent as contraband or as evidence related to the 
offense serving as the basis for the stop. As a matter of safety, the 
official may, after conducting a lawful stop of a vehicle, order the 
driver and any passengers out of the car without any additional 
suspicion or justification.''
    (i) A new Discussion is added following Mil. R. Evid. 314(g)(2):
``DISCUSSION
    The scope of the search for weapons is limited to that which is 
necessary to protect the arresting official. The official may not 
search a vehicle for weapons if there is no possibility that the 
arrestee could reach into the searched area, for example, after the 
arrestee is handcuffed and removed from the vehicle. The scope of the 
search is broader for destructible evidence related to the offense for 
which the individual is being arrested. Unlike a search for weapons, 
the search for destructible offense-related evidence may take place 
after the arrestee is handcuffed and removed from a vehicle. If, 
however, the official cannot expect to find destructible offense-
related evidence, this exception does not apply.''
    (j) A new Discussion is added following Mil. R. Evid. 315(a):
``DISCUSSION
    Although military personnel should adhere to procedural guidance 
regarding the conduct of searches, violation of such procedural 
guidance does not render evidence inadmissible unless the search is 
unlawful under these rules or the Constitution of the United States as 
applied to members of the armed forces. For example, 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 notify him or her of the fact of 
authorization and the general substance of the authorization. Such 
notice may be made prior to or contemporaneously with the search. 
Property seized should be inventoried at the time of a seizure or as 
soon thereafter as practicable. A copy of the inventory should be given 
to a person from whose possession or premises the property was taken. 
Failure to provide notice, make an inventory, furnish a copy thereof, 
or otherwise comply with this guidance does not render a search or 
seizure unlawful within the meaning of Mil. R. Evid. 311.''
    (k) A new Discussion is added following Mil. R. Evid. 315(c)(4):
``DISCUSSION
    If nonmilitary property within a foreign country is owned, used, 
occupied by, or in the possession of an agency of the United States 
other than the Department of Defense, a search should be conducted in 
coordination with an appropriate representative of the agency 
concerned, although failure to obtain such coordination would not 
render a search unlawful within the meaning of Mil. R. Evid. 311. If 
other nonmilitary property within a foreign country is to be searched, 
the search should be conducted in accordance with any relevant treaty 
or agreement or in coordination with an appropriate representative of 
the foreign country, although failure to obtain such coordination or 
noncompliance with a treaty or agreement would not render a search 
unlawful within the meaning of Mil. R. Evid. 311.''
    (l) A new Discussion is added following Mil. R. Evid. 317(b):
``DISCUSSION
    Pursuant to 18 U.S.C. 2516(1), 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 18 U.S.C. 
2518, an order authorizing or approving the interception of wire or 
oral communications by the Department of Defense, the Department of 
Homeland Security, or any Military Department for purposes of obtaining 
evidence concerning the offenses enumerated in 18 U.S.C. 2516(1), to 
the extent such offenses are punishable under the Uniform Code of 
Military Justice.''
    (m) A new Discussion is added following Mil. R. Evid. 412(c)(3):
``DISCUSSION
    After hearing all evidence on the motion under subdivision (c) and 
before making a determination that the evidence is constitutionally 
required, the military judge should determine precisely what evidence 
is relevant and material and whether its probative value outweighs the 
danger of unfair prejudice. See United States v. Ellerbrock, 70 M.J. 
314, 318 (C.A.A.F. 2011). The probative value of the evidence must be 
balanced against and outweigh the ordinary countervailing interests 
reviewed in making a determination as to whether evidence is 
constitutionally required. United States v. Gaddis, 70 M.J. 248, 255 
(C.A.A.F. 2011). Such interests include, but are not limited to, 
harassment of a victim, prejudice to the integrity of the trial 
process, confusion of the issues, the victim's safety, or interrogation 
of a victim that is only marginally relevant. The military judge 
retains wide latitude to impose reasonable limits on cross-examination 
regarding the bias of a victim or witness or motive to fabricate based 
on concerns about, among other things, harassment, prejudice, confusion 
of the issues, the safety of a victim or witness, or interrogation that 
is repetitive or only marginally relevant. See Delaware v. Van Arsdall, 
475 U.S. 673, 679 (1986). The Constitution guarantees an opportunity 
for effective cross-examination, but not cross-examination that is 
effective in whatever way, and to whatever extent, the defense might 
wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). The military judge 
should carefully tailor an order that protects the right of the accused 
to present admissible evidence under this rule but does not allow 
presentation of evidence that is not admissible under subdivision 
(b).''
    (n) A new Discussion is added following Mil. R. Evid. 505(k)(3):
``DISCUSSION
    In addition to the sixth amendment right of an accused to a public 
trial, the Supreme Court has held that the press and general public 
have a constitutional right under the first amendment to access to 
criminal trials. United States v. Hershey, 20 M.J. 433 (C.M.A. 1985) 
citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The 
test that must be met before closure of a criminal trial to the public 
is set out in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 
(1984), to wit: The party seeking closure must advance an overriding 
interest that is likely to be prejudiced; the closure must be narrowly 
tailored to protect that interest; the trial court must consider 
reasonable alternatives to closure; and it must make adequate findings 
supporting the closure to aid in review.''

    Dated: February 28, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-6166 Filed 3-13-12; 8:45 am]
BILLING CODE 5001-06-P