PART III RULES OF

SECTION I GENERAL PROVISIONS

Rule 101. Scope the error materially prejudices a substantial right of (a) Scope. These rules apply to -martial the party and: proceedings to the extent and with the exceptions (1) if the ruling admits evidence, a party, on the stated in Mil. R. Evid. 1101. record: (b) Sources of . In the absence of guidance in (A) timely objects or moves to strike; and this Manual or these rules, courts-martial will apply: (B) states the specific ground, unless it was (1) First, the Federal Rules of Evidence and the apparent from the context; or interpreting them; and (2) if the ruling excludes evidence, a party in- (2) Second, when not inconsistent with subdivi- forms the military of its substance by an offer of , unless the substance was apparent from the sion (b)(1), the rules of evidence at . context. (c) Rule of Construction. Except as otherwise pro- (b) Not Needing to Renew an Objection or Offer of vided in these rules, the term “military judge” in- Proof. Once the military judge rules definitively on cludes the president of a -martial the record admitting or excluding evidence, either without a military judge and a summary court-mar- before or at , a party need not renew an objec- tial officer. tion or to preserve a claim of error for . Discussion (c) Review of Constitutional Error. The standard Discussion was added to these Rules in 2013. The Discussion provided in subdivision (a)(2) does not apply to er- itself does not have the force of law, even though it may describe rors implicating the as it legal requirements derived from other sources. It is in the nature applies to members of the Armed Forces, unless the 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 error arises under these rules and subdivision (a)(2) it is clearly expressed as precatory. The Discussion will be re- provides a standard that is more advantageous to the vised from time to time as warranted by changes in applicable accused than the constitutional standard. law. See Composition of the Manual for Courts-Martial in Appen- (d) Military Judge’s Statement about the Ruling; dix 21. Directing an Offer of Proof. The military judge may Practitioners should also refer to the Analysis of the Military Rules of Evidence contained in Appendix 22 of this Manual. The make any statement about the character or form of Analysis is similar to Committee Notes accompanying the Federal the evidence, the objection made, and the ruling. Rules of Evidence and is intended to address the basis of the rule, The military judge may direct that an offer of proof deviation from the Federal Rules of Evidence, relevant , be made in question-and- form. and drafters’ intent. (e) Preventing the Members from Inadmis- sible Evidence. In a court-martial composed of a military judge and members, to the extent practica- Rule 102. Purpose ble, the military judge must conduct a trial so that These rules should be construed so as to adminis- inadmissible evidence is not suggested to the mem- ter every proceeding fairly, eliminate unjustifiable bers by any means. expense and delay, and promote the development of (f) Taking Notice of Plain Error. A military judge evidence law, to of ascertaining the truth may take notice of a plain error that materially prej- and securing a just determination. udices a substantial right, even if the claim of error was not properly preserved. Rule 103. Rulings on evidence (a) Preserving a Claim of Error. A party may claim Rule 104. Preliminary questions error in a ruling to admit or exclude evidence only if (a) In General. The military judge must decide any

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preliminary question about whether a is available or qualified, a exists, a continu- introduction, at that time, of any other part – or any ance should be granted, or evidence is admissible. In other writing or recorded statement – that in fairness so deciding, the military judge is not bound by evi- ought to be considered at the same time. dence rules, except those on privilege. (b) that Depends on a Fact. When the SECTION II 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 Rule 201. Judicial notice of adjudicative may admit the proposed evidence on the condition facts that the proof be introduced later. A ruling on the (a) Scope. This rule governs judicial notice of an sufficiency of evidence to support a finding of ful- adjudicative fact only, not a legislative fact. fillment of a condition of fact is the sole responsibil- (b) Kinds of Facts that May Be Judicially Noticed. ity of the military judge, except where these rules or The military judge may judicially notice a fact that this Manual provide expressly to the contrary. is not subject to reasonable dispute because it: (c) Conducting a Hearing so that the Members Can- (1) is generally known universally, locally, or in not Hear It. Except in cases tried before a special the area pertinent to the event; or court-martial without a military judge, the military judge must conduct any hearing on a preliminary (2) can be accurately and readily determined from question so that the members cannot hear it if: sources whose accuracy cannot reasonably be questioned. (1) the hearing involves the admissibility of a statement of the accused under Mil. R. Evid. 301- (c) Taking Notice. The military judge: 306; (1) may take judicial notice whether requested or (2) the accused is a witness and so requests; or not; or (3) so requires. (2) must take judicial notice if a party requests it and the military judge is supplied with the necessary (d) Cross-Examining the Accused. By testifying on information. a preliminary question, the accused does not become The military judge must inform the parties in open subject to cross-examination on other issues in the court when, without being requested, he or she takes case. judicial notice of an adjudicative fact essential to (e) Evidence Relevant to Weight and Credibility. establishing an element of the case. This rule does not limit a party’s right to introduce (d) Timing. The military judge may take judicial before the members evidence that is relevant to the notice at any stage of the proceeding. weight or credibility of other evidence. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of Rule 105. Limiting evidence that is not taking judicial notice and the nature of the fact to be admissible against other parties or for other noticed. If the military judge takes judicial notice purposes before notifying a party, the party, on request, is still If the military judge admits evidence that is ad- entitled to be heard. missible against a party or for a purpose – but not (f) Instructing the Members. The military judge against another party or for another purpose – the must instruct the members that they may or may not military judge, on timely request, must restrict the accept the noticed fact as conclusive. evidence to its proper scope and instruct the mem- bers accordingly. Rule 202. Judicial notice of law (a) Domestic Law. The military judge may take ju- Rule 106. Remainder of or related writings dicial notice of domestic law. If a domestic law is a or recorded statements fact that is of consequence to the determination of If a party introduces all or part of a writing or the action, the procedural requirements of Mil. R. recorded statement, an adverse party may require the Evid. 201 – except Rule 201(f) – apply. (b) Foreign Law. A party who intends to raise an

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issue concerning the law of a foreign country must (d) Exercise of the Privilege. If a witness states that give reasonable written notice. The military judge, in the answer to a question may tend to incriminate determining foreign law, may consider any relevant him or her, the witness cannot be required to answer material or source, in accordance with Mil. R. Evid. unless the military judge finds that the facts and 104. Such a determination is a ruling on a question circumstances are such that no answer the witness of law. might make to the question would tend to incrimi- nate the witness or that the witness has, with respect SECTION III to the question, waived the privilege against self- EXCLUSIONARY RULES AND RELATED incrimination. A witness may not assert the privilege MATTERS CONCERNING SELF- if he or she is not subject to criminal penalty as a INCRIMINATION, SEARCH AND SEIZURE, result of an answer by reason of immunity, running of the of limitations, or similar reason. AND EYEWITNESS IDENTIFICATION (1) Immunity Requirements. The minimum grant

of immunity adequate to overcome the privilege is Rule 301. Privilege concerning compulsory that which under either R.C.M. 704 or other proper self-incrimination authority provides that neither the of the (a) General Rule. An individual may claim the most witness nor any evidence obtained from that testi- favorable privilege provided by the Fifth Amend- mony may be used against the witness at any subse- ment to the United States Constitution, Article 31, or quent trial other than in a prosecution for , these rules. The privileges against self-incrimination false swearing, the making of a false official state- are applicable only to evidence of a testimonial or ment, or failure to comply with an order to testify communicative nature. after the military judge has ruled that the privilege (b) Standing. The privilege of a witness to refuse to may not be asserted by reason of immunity. respond to a question that may tend to incriminate (2) Notification of Immunity or Leniency. When a the witness is a personal one that the witness may prosecution witness before a court-martial has been exercise or waive at his or her discretion. granted immunity or leniency in exchange for testi- (c) Limited Waiver. An accused who chooses to tes- mony, the grant must be reduced to writing and tify as a witness waives the privilege against self- must be served on the accused prior to incrimination only with respect to the matters about or within a reasonable time before the witness tes- which he or she testifies. If the accused is on trial tifies. If notification is not made as required by this for two or more offenses and on rule, the military judge may grant a testifies about only one or some of the offenses, the until notification is made, prohibit or strike the testi- accused may not be cross-examined as to or mony of the witness, or enter such other order as innocence with respect to the other offenses unless may be required. the cross-examination is relevant to an offense con- (e) Waiver of the Privilege. A witness who answers cerning which the accused has testified. This waiver a self-incriminating question without having asserted is subject to Mil. R. Evid. 608(b). the privilege against self-incrimination may be re-

Discussion quired to answer questions relevant to the disclosure, unless the questions are likely to elicit additional A military judge is not required to provide Article 31 warnings. If self-incriminating information. a witness who seems uninformed of the privileges under this rule appears likely to incriminate himself or herself, the military judge (1) If a witness asserts the privilege against self- may advise the witness of the right to decline to make any answer incrimination on cross-examination, the military that might tend to incriminate the witness and that any self- judge, upon , may strike the direct testimony incriminating answer the witness might make can later be used as of the witness in whole or in part, unless the matters evidence against the witness. for any party or for the witness may ask the military judge to so advise a witness if such to which the witness refuses to testify are purely a request is made out of the hearing of the witness and the collateral. members, if present. Failure to so advise a witness does not make (2) Any limited waiver of the privilege under the testimony of the witness inadmissible. subdivision (e) applies only at the trial in which the answer is given, does not extend to a rehearing or

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new or other trial, and is subject to Mil. R. Evid. ments of the accused except as provided in 608(b). subdivision (b)(1). (f) Effect of Claiming the Privilege. (c) Release of Evidence from an R.C.M. 706 Exami- (1) No Inference to Be Drawn. The fact that a nation. If the offers expert testimony con- witness has asserted the privilege against self-in- cerning the mental condition of the accused, the crimination cannot be considered as raising any in- military judge, upon motion, must order the release ference unfavorable to either the accused or the to the prosecution of the full contents, other than government. any statements made by the accused, of any report (2) Pretrial Invocation Not Admissible. The fact prepared pursuant to R.C.M. 706. If the defense of- that the accused during official questioning and in fers statements made by the accused at such exami- exercise of rights under the Fifth Amendment to the nation, the military judge, upon motion, may order United States Constitution or Article 31 remained the disclosure of such statements made by the ac- silent, refused to answer a certain question, re- cused and contained in the report as may be neces- quested counsel, or requested that the questioning be sary in the interests of justice. terminated, is not admissible against the accused. (d) Noncompliance by the Accused. The military (3) Instructions Regarding the Privilege. When judge may prohibit an accused who refuses to coop- the accused does not testify at trial, defense counsel erate in a mental examination authorized under may request that the members of the court be in- R.C.M. 706 from presenting any expert medical tes- structed to disregard that fact and not to draw any timony as to any issue that would have been the adverse inference from it. Defense counsel may re- subject of the mental examination. quest that the members not be so instructed. Defense (e) Procedure. The privilege in this rule may be counsel’s will be binding upon the military claimed by the accused only under the procedure set judge except that the military judge may give the forth in Mil. R. Evid. 304 for an objection or a instruction when the instruction is necessary in the motion to suppress. interests of justice. Rule 303. Degrading questions Rule 302. Privilege concerning mental Statements and evidence are inadmissible if they examination of an accused are not material to the issue and may tend to de- (a) General rule. The accused has a privilege to grade the person testifying. prevent any statement made by the accused at a mental examination ordered under R.C.M. 706 and Rule 304. Confessions and admissions any derivative evidence obtained through use of (a) General rule. If the accused makes a timely mo- such a statement from being received into evidence tion or objection under this rule, an involuntary against the accused on the issue of guilt or inno- statement from the accused, or any evidence derived cence or during sentencing proceedings. This privi- lege may be claimed by the accused notwithstanding therefrom, is inadmissible at trial except as provided the fact that the accused may have been warned of in subdivision (e). the rights provided by Mil. R. Evid. 305 at the (1) Definitions. As used in this rule: examination. (A) “Involuntary statement” means a statement (b) Exceptions. obtained in violation of the self-incrimination privi- (1) There is no privilege under this rule when the lege or Due Process Clause of the Fifth Amendment accused first introduces into evidence such state- to the United States Constitution, Article 31, or ments or derivative evidence. through the use of coercion, unlawful influence, or unlawful inducement. (2) If the court-martial has allowed the defense to present expert testimony as to the mental condition (B) “” means an acknowledgment of of the accused, an for the prosecution guilt. may testify as to the reasons for his or her conclu- (C) “” means a self-incriminating sions, but such testimony may not extend to state- statement falling short of an acknowledgment of

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guilt, even if it was intended by its maker to be essential facts admitted. The amount and type of exculpatory. evidence introduced as corroboration is a factor to (2) Failure to deny an accusation of wrongdoing be considered by the in determining the is not an admission of the truth of the accusation if weight, if any, to be given to the admission or at the time of the alleged failure the person was confession. under investigation or was in confinement, , or (5) Procedure. The military judge alone is to de- custody for the alleged wrongdoing. termine when adequate evidence of corroboration (b) Evidence Derived from a Statement of the Ac- has been received. Corroborating evidence must be cused. When the defense has made an appropriate introduced before the admission or confession is in- and timely motion or objection under this rule, evi- troduced unless the military judge allows submission dence allegedly derived from a statement of the ac- of such evidence subject to later corroboration. cused may not be admitted unless the military judge (d) Disclosure of Statements by the Accused and finds by a preponderance of the evidence that: Derivative Evidence. Before arraignment, the prose- (1) the statement was made voluntarily, cution must disclose to the defense the contents of (2) the evidence was not obtained by use of the all statements, oral or written, made by the accused accused’s statement, or that are relevant to the case, known to the trial (3) the evidence would have been obtained even counsel, and within the control of the Armed Forces, if the statement had not been made. and all evidence derived from such statements, that (c) Corroboration of a Confession or Admission. the prosecution intends to offer against the accused. (1) An admission or a confession of the accused (e) Limited Use of an Involuntary Statement. A may be considered as evidence against the accused statement obtained in violation of Article 31 or Mil. on the question of guilt or innocence only if inde- R. Evid. 305(b)-(c) may be used only: pendent evidence, either direct or circumstantial, has (1) to impeach by contradiction the in-court testi- been admitted into evidence that corroborates the mony of the accused; or essential facts admitted to justify sufficiently an in- (2) in a later prosecution against the accused for ference of their truth. perjury, false swearing, or the making of a false (2) Other uncorroborated confessions or admis- official statement. sions of the accused that would themselves require (f) Motions and Objections. corroboration may not be used to supply this inde- (1) Motions to suppress or objections under this pendent evidence. If the independent evidence raises rule, or Mil. R. Evid. 302 or 305, to any statement an inference of the truth of some but not all of the or derivative evidence that has been disclosed must essential facts admitted, then the confession or ad- be made by the defense prior to submission of a mission may be considered as evidence against the . In the absence of such motion or objection, the accused only with respect to those essential facts defense may not raise the issue at a later time except stated in the confession or admission that are corrob- orated by the independent evidence. as permitted by the military judge for good cause shown. Failure to so move or object constitutes a (3) Corroboration is not required for a statement waiver of the objection. made by the accused before the court by which the accused is being tried, for statements made prior to (2) If the prosecution seeks to offer a statement or contemporaneously with the act, or for statements made by the accused or derivative evidence that was offered under a rule of evidence other than that not disclosed before arraignment, the prosecution pertaining to the admissibility of admissions or must provide timely notice to the military judge and confessions. defense counsel. The defense may object at that (4) Quantum of Evidence Needed. The independ- time, and the military judge may make such orders ent evidence necessary to establish corroboration as are required in the interests of justice. need not be sufficient of itself to establish beyond a (3) The defense may present evidence relevant to the truth of facts stated in the ad- the admissibility of evidence as to which there has mission or confession. The independent evidence been an objection or motion to suppress under this need raise only an inference of the truth of the rule. An accused may testify for the limited purpose

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of denying that the accused made the statement or made, it will be resolved pursuant to R.C.M. that the statement was made voluntarily. 801(e)(3)(C). (A) Prior to the introduction of such testimony (8) Effect of Guilty Plea. Except as otherwise ex- by the accused, the defense must inform the military pressly provided in R.C.M. 910(a)(2), a plea of judge that the testimony is offered under subdivision guilty to an offense that results in a finding of guilty (f)(3). waives all privileges against self-incrimination and (B) When the accused testifies under subdivi- all motions and objections under this rule with sion (f)(3), the accused may be cross-examined only respect to that offense regardless of whether raised as to the matter on which he or she testifies. Nothing prior to plea. said by the accused on either direct or cross-exami- (g) Weight of the Evidence. If a statement is admit- nation may be used against the accused for any ted into evidence, the military judge must permit the purpose other than in a prosecution for perjury, false defense to present relevant evidence with respect to swearing, or the making of a false official statement. the voluntariness of the statement and must instruct the members to give such weight to the statement as (4) Specificity. The military judge may require it deserves under all the circumstances. the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If (h) Completeness. If only part of an alleged admis- defense counsel, despite the exercise of due dili- sion or confession is introduced against the accused, gence, has been unable to interview adequately those the defense, by cross-examination or otherwise, may persons involved in the taking of a statement, the introduce the remaining portions of the statement. military judge may make any order required in the (i) Evidence of an Oral Statement. A voluntary oral interests of justice, including authorization for the confession or admission of the accused may be defense to make a general motion to suppress or proved by the testimony of anyone who heard the general objection. accused make it, even if it was reduced to writing and the writing is not accounted for. (5) Rulings. The military judge must rule, prior to plea, upon any motion to suppress or objection to (j) Refusal to Obey an Order to Submit a Body evidence made prior to plea unless, for good cause, Substance. If an accused refuses a lawful order to the military judge orders that the ruling be deferred submit for chemical analysis a sample of his or her for determination at trial or after findings. The mili- blood, breath, urine or other body substance, evi- tary judge may not defer ruling if doing so adversely dence of such refusal may be admitted into evidence on: affects a party’s right to appeal the ruling. The mili- tary judge must state essential findings of fact on the (1) A charge of violating an order to submit such record when the ruling involves factual issues. a sample; or (6) . When the defense has made (2) Any other charge on which the results of the an appropriate motion or objection under this rule, chemical analysis would have been admissible. the prosecution has the burden of establishing the admissibility of the evidence. When the military Rule 305. Warnings about rights judge has required a specific motion or objection (a) General rule. A statement obtained in violation under subdivision (f)(4), the burden on the prosecu- of this rule is involuntary and will be treated under tion extends only to the grounds upon which the Mil. R. Evid. 304. defense moved to suppress or object to the evidence. (b) Definitions. As used in this rule: (7) Standard of Proof. The military judge must (1) “Person subject to the code” means a person find by a preponderance of the evidence that a state- subject to the Uniform Code of as ment by the accused was made voluntarily before it contained in Chapter 47 of 10, United States may be received into evidence. When trial is by a Code. This term includes, for purposes of subdivi- special court-martial without a military judge, a de- sion (c) of this rule, a knowing agent of any such termination by the president of the court that a state- person or of a military unit. ment was made voluntarily is subject to objection by (2) “Interrogation” means any formal or informal any member of the court. When such objection is questioning in which an incriminating response ei-

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ther is sought or is a reasonable consequence of such counsel under this rule requests counsel, a judge questioning. or an individual certified in accordance (3) “Custodial interrogation” means questioning with Article 27(b) will be provided by the United that takes place while the accused or is in States at no expense to the person and without custody, could reasonably believe himself or herself regard to the person’s indigency and must be present to be in custody, or is otherwise deprived of his or before the interrogation may proceed. In addition to her freedom of action in any significant way. counsel supplied by the United States, the person (c) Warnings Concerning the Accusation, Right to may retain civilian counsel at no expense to the Remain Silent, and Use of Statements. United States. Unless otherwise provided by regula- tions of the Secretary concerned, an accused or sus- (1) Article 31 Rights Warnings. A statement ob- pect does not have a right under this rule to have tained from the accused in violation of the accused’s military counsel of his or her own selection. rights under Article 31 is involuntary and therefore inadmissible against the accused except as provided (e) Waiver. in subdivision (d). Pursuant to Article 31, a person (1) Waiver of the Privilege Against Self-Incrimi- subject to the code may not interrogate or request nation. After receiving applicable warnings under any statement from an accused or a person suspected this rule, a person may waive the rights described of an offense without first: therein and in Mil. R. Evid. 301 and make a state- (A) informing the accused or suspect of the ment. The waiver must be made freely, knowingly, nature of the accusation; and intelligently. A written waiver is not required. (B) advising the accused or suspect that the The accused or suspect must affirmatively acknowl- edge that he or she understands the rights involved, accused or suspect has the right to remain silent; and affirmatively decline the , and af- (C) advising the accused or suspect that any firmatively to making a statement. statement made may be used as evidence against the (2) Waiver of the Right to Counsel. If the right to accused or suspect in a trial by court-martial. counsel is applicable under this rule and the accused (2) Fifth Amendment Right to Counsel. If a per- or suspect does not affirmatively decline the right to son suspected of an offense and subjected to custo- counsel, the prosecution must demonstrate by a pre- dial interrogation requests counsel, any statement ponderance of the evidence that the individual made in the interrogation after such request, or evi- waived the right to counsel. dence derived from the interrogation after such re- quest, is inadmissible against the accused unless (3) Waiver After Initially Invoking the Right to counsel was present for the interrogation. Counsel. (3) Sixth Amendment Right to Counsel. If an ac- (A) Fifth Amendment Right to Counsel. If an cused against whom charges have been preferred is accused or suspect subjected to custodial interroga- interrogated on matters concerning the preferred tion requests counsel, any subsequent waiver of the charges by anyone acting in a ca- right to counsel obtained during a custodial interro- pacity, or the agent of such a person, and the ac- gation concerning the same or different offenses is cused requests counsel, or if the accused has invalid unless the prosecution can demonstrate by a appointed or retained counsel, any statement made preponderance of the evidence that: in the interrogation, or evidence derived from the (i) the accused or suspect initiated the com- interrogation, is inadmissible unless counsel was munication leading to the waiver; or present for the interrogation. (ii) the accused or suspect has not con- (4) Exercise of Rights. If a person chooses to tinuously had his or her freedom restricted by con- exercise the privilege against self-incrimination, finement, or other means, during the period between questioning must cease immediately. If a person the request for counsel and the subsequent waiver. who is subjected to interrogation under the circum- (B) Sixth Amendment Right to Counsel. If an stances described in subdivisions (c)(2) or (c)(3) of accused or suspect interrogated after preferral of this rule chooses to exercise the right to counsel, charges as described in subdivision (c)(1) requests questioning must cease until counsel is present. counsel, any subsequent waiver of the right to coun- (d) Presence of Counsel. When a person entitled to sel obtained during an interrogation concerning the

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same offenses is invalid unless the prosecution can Rule 311. Evidence obtained from unlawful demonstrate by a preponderance of the evidence that searches and seizures the accused or suspect initiated the communication (a) General rule. Evidence obtained as a result of an leading to the waiver. unlawful search or seizure made by a person acting (f) Standards for Nonmilitary Interrogations. in a governmental capacity is inadmissible against (1) United States Civilian Interrogations. When a the accused if: person subject to the code is interrogated by an (1) the accused makes a timely motion to sup- official or agent of the United States, of the District press or an objection to the evidence under this rule; of Columbia, or of a State, , or pos- and session of the United States, or any political subdivi- (2) the accused had a reasonable expectation of sion of such a State, Commonwealth, or , privacy in the person, place or searched; the person’s entitlement to rights warnings and the the accused had a legitimate interest in the property validity of any waiver of applicable rights will be or evidence seized when challenging a seizure; or determined by the principles of law generally recog- the accused would otherwise have grounds to object nized in the trial of criminal cases in the United to the search or seizure under the Constitution of the States district courts involving similar interrogations. United States as applied to members of the Armed (2) Foreign Interrogations. Warnings under Arti- Forces. cle 31 and the Fifth and Sixth Amendments to the (b) Definition. As used in this rule, a search or sei- United States Constitution are not required during an zure is “unlawful” if it was conducted, instigated, or interrogation conducted outside of a State, district, participated in by: Commonwealth, territory, or possession of the (1) military personnel or their agents and was in United States by officials of a foreign government or violation of the Constitution of the United States as their agents unless such interrogation is conducted, applied to members of the Armed Forces, a federal instigated, or participated in by military personnel or statute applicable to by court-martial that re- their agents or by those officials or agents listed in quires exclusion of evidence obtained in violation subdivision (f)(1). A statement obtained from a for- thereof, or Mil. R. Evid. 312-317; eign interrogation is admissible unless the statement (2) other officials or agents of the United States, is obtained through the use of coercion, unlawful of the District of Columbia, or of a State, Common- influence, or unlawful inducement. An interrogation wealth, or possession of the United States or any is not “participated in” by military personnel or their political subdivision of such a State, Common- agents or by the officials or agents listed in subdivi- wealth, or possession, and was in violation of the sion (f)(1) merely because such a person was present Constitution of the United States, or is unlawful at an interrogation conducted in a foreign nation by under the principles of law generally applied in the officials of a foreign government or their agents, or trial of criminal cases in the United States district because such a person acted as an interpreter or took courts involving a similar search or seizure; or steps to mitigate damage to property or physical (3) officials of a foreign government or their harm during the foreign interrogation. agents, where evidence was obtained as a result of a foreign search or seizure that subjected the accused Rule 306. Statements by one of several to gross and brutal maltreatment. A search or seizure accused is not “participated in” by a United States military or When two or more accused are tried at the same civilian official merely because that person is pres- trial, evidence of a statement made by one of them ent at a search or seizure conducted in a foreign which is admissible only against him or her or only nation by officials of a foreign government or their against some but not all of the accused may not be agents, or because that person acted as an interpreter received in evidence unless all references inculpat- or took steps to mitigate damage to property or ing an accused against whom the statement is inad- physical harm during the foreign search or seizure. missible are deleted effectively or the maker of the (c) Exceptions. statement is subject to cross-examination. (1) Impeachment. Evidence that was obtained as a result of an unlawful search or seizure may be

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used to impeach by contradiction the in-court testi- make such orders as are required in the interest of mony of the accused. justice. (2) Inevitable . Evidence that was ob- (3) Specificity. The military judge may require tained as a result of an unlawful search or seizure the defense to specify the grounds upon which the may be used when the evidence would have been defense moves to suppress or object to evidence obtained even if such unlawful search or seizure had described in subdivision (d)(1). If defense counsel, not been made. despite the exercise of , has been una- ble to interview adequately those persons involved (3) Execution of a Warrant or Search in the search or seizure, the military judge may enter Authorization. Evidence that was obtained as a result any order required by the interests of justice, includ- of an unlawful search or seizure may be used if: ing authorization for the defense to make a general (A) the search or seizure resulted from an au- motion to suppress or a general objection. thorization to search, seize or apprehend issued by (4) Challenging . an individual competent to issue the authorization (A) Relevant Evidence. If the defense chal- under Mil. R. Evid. 315(d) or from a lenges evidence seized pursuant to a search warrant or issued by competent civilian or search authorization on the ground that the war- authority; rant or authorization was not based upon probable (B) the individual issuing the authorization or cause, the evidence relevant to the motion is limited warrant had a substantial basis for determining the to evidence concerning the information actually existence of probable cause; and presented to or otherwise known by the authorizing (C) the officials seeking and executing the au- officer, except as provided in subdivision (d)(4)(B). thorization or warrant reasonably and with good (B) False Statements. If the defense makes a faith relied on the issuance of the authorization or substantial preliminary showing that a government warrant. Good faith is to be determined using an agent included a false statement knowingly and in- objective standard. tentionally or with reckless disregard for the truth in (d) Motions to Suppress and Objections. the information presented to the authorizing officer, and if the allegedly false statement is necessary to (1) Disclosure. Prior to arraignment, the prosecu- the finding of probable cause, the defense, upon tion must disclose to the defense all evidence seized request, is entitled to a hearing. At the hearing, the from the person or property of the accused, or be- defense has the burden of establishing by a prepon- lieved to be owned by the accused, or evidence derance of the evidence the of knowing derived therefrom, that it intends to offer into evi- and intentional falsity or reckless disregard for the dence against the accused at trial. truth. If the defense meets its burden, the prosecu- (2) Time Requirements. tion has the burden of proving by a preponderance (A) When evidence has been disclosed prior to of the evidence, with the false information set aside, arraignment under subdivision (d)(1), the defense that the remaining information presented to the must make any motion to suppress or objection authorizing officer is sufficient to establish probable under this rule prior to submission of a plea. In the cause. If the prosecution does not meet its burden, the objection or motion must be granted unless the absence of such motion or objection, the defense search is otherwise lawful under these rules. may not raise the issue at a later time except as permitted by the military judge for good cause (5) Burden and Standard of Proof. shown. Failure to so move or object constitutes a (A) In general. When the defense makes an waiver of the motion or objection. appropriate motion or objection under subdivision (d), the prosecution has the burden of proving by a (B) If the prosecution intends to offer evidence preponderance of the evidence that the evidence was described in subdivision (d)(1) that was not dis- not obtained as a result of an unlawful search or closed prior to arraignment, the prosecution must seizure, that the evidence would have been obtained provide timely notice to the military judge and to even if the unlawful search or seizure had not been counsel for the accused. The defense may enter an made, or that the evidence was obtained by officials objection at that time and the military judge may who reasonably and with good faith relied on the

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issuance of an authorization to search, seize, or ap- pressly provided in R.C.M. 910(a)(2), a plea of prehend or a search warrant or an arrest warrant. guilty to an offense that results in a finding of guilty (B) Statement Following Apprehension. In ad- waives all issues under the Fourth Amendment to dition to subdivision (d)(5)(A), a statement obtained the Constitution of the United States and Mil. R. from a person apprehended in a dwelling in viola- Evid. 311-317 with respect to the offense, whether tion R.C.M. 302(d)(2) and (e), is admissible if the or not raised prior to plea. prosecution shows by a preponderance of the evi- dence that the apprehension was based on probable Rule 312. Body views and intrusions cause, the statement was made at a location outside (a) General rule. Evidence obtained from body the dwelling subsequent to the apprehension, and the views and intrusions conducted in accordance with statement was otherwise in compliance with these this rule is admissible at trial when relevant and not rules. otherwise inadmissible under these rules. (C) Specific Grounds of Motion or Objection. (b) Visual examination of the body. When the military judge has required the defense to (1) Consensual Examination. Evidence obtained make a specific motion or objection under subdivi- from a visual examination of the unclothed body is sion (d)(3), the burden on the prosecution extends admissible if the person consented to the inspection only to the grounds upon which the defense moved in accordance with Mil. R. Evid. 314(e). to suppress or objected to the evidence. (2) Involuntary Examination. Evidence obtained (6) Defense Evidence. The defense may present from an involuntary display of the unclothed body, evidence relevant to the admissibility of evidence as including a visual examination of body cavities, is to which there has been an appropriate motion or admissible only if the inspection was conducted in a objection under this rule. An accused may testify for reasonable fashion and authorized under the follow- the limited purpose of contesting the of the ing provisions of the Military Rules of Evidence: search or seizure giving rise to the challenged evi- (A) inspections and inventories under Mil. R. dence. Prior to the introduction of such testimony by Evid. 313; the accused, the defense must inform the military (B) searches under Mil. R. Evid. 314(b) and judge that the testimony is offered under subdivision 314(c) if there is a that weap- (d). When the accused testifies under subdivision ons, contraband, or evidence of is concealed (d), the accused may be cross-examined only as to on the body of the person to be searched; the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination (C) searches incident to lawful apprehension may be used against the accused for any purpose under Mil. R. Evid. 314(g); other than in a prosecution for perjury, false swear- (D) searches within a jail, confinement facility, ing, or the making of a false official statement. or similar facility under Mil. R. Evid. 314(h) if rea- sonably necessary to maintain the security of the (7) Rulings. The military judge must rule, prior to institution or its personnel; plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, (E) emergency searches under Mil. R. Evid. the military judge orders that the ruling be deferred 314(i); and for determination at trial or after findings. The mili- (F) probable cause searches under Mil. R. tary judge may not defer ruling if doing so adversely Evid. 315. affects a party’s right to appeal the ruling. The mili- tary judge must state essential findings of fact on the Discussion

record when the ruling involves factual issues. An examination of the unclothed body under this rule should be (8) Informing the Members. If a defense motion conducted whenever practicable by a person of the same sex as or objection under this rule is sustained in whole or that of the person being examined; however, failure to comply with this requirement does not make an examination an unlawful in part, the court-martial members may not be in- search within the meaning of Mil. R. Evid. 311. formed of that fact except when the military judge must instruct the members to disregard evidence. (c) Intrusion into Body Cavities. (e) Effect of Guilty Plea. Except as otherwise ex-

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(1) Mouth, Nose, and Ears. Evidence obtained medical qualifications in such a manner so as not to from a reasonable nonconsensual physical intrusion endanger the health of the person to be searched. into the mouth, nose, and ears is admissible under the same standards that apply to a visual examina- Discussion

tion of the body under subdivision (b). Compelling a person to ingest substances for the purposes of (2) Other Body Cavities. Evidence obtained from locating the property described above or to compel the bodily elimination of such property is a search within the meaning of nonconsensual intrusions into other body cavities is this section. admissible only if made in a reasonable fashion by a person with appropriate medical qualifications and if: (f) Intrusions for Valid Medical Purposes. Evidence or contraband obtained in the course of a medical (A) at the time of the intrusion there was prob- examination or an intrusion conducted for a valid able cause to believe that a weapon, contraband, or medical purpose is admissible. Such an examination other evidence of crime was present; or intrusion may not, for the purpose of obtaining (B) conducted to remove weapons, contraband, evidence or contraband, exceed what is necessary or evidence of crime discovered under subdivisions for the medical purpose. (b) or (c)(2)(A) of this rule; (C) conducted pursuant to Mil. R. Evid. Discussion

316(c)(5)(C); Nothing in this rule will be deemed to interfere with the lawful (D) conducted pursuant to a search warrant or authority of the Armed Forces to take whatever action may be necessary to preserve the health of a service member. 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 (g) Medical Qualifications. The Secretary concerned is concealing a weapon, contraband, or evidence of may prescribe appropriate medical qualifications for crime. persons who conduct searches and seizures under this rule. (d) Extraction of Body Fluids. Evidence obtained from nonconsensual extraction of body fluids is ad- missible if seized pursuant to a search warrant or a Rule 313. Inspections and inventories in the search authorization under Mil. R. Evid. 315. Evi- Armed Forces dence obtained from nonconsensual extraction of (a) General Rule. Evidence obtained from lawful body fluids made without such a warrant or authori- inspections and inventories in the Armed Forces is zation is admissible, notwithstanding Mil. R. Evid. admissible at trial when relevant and not otherwise 315(g), only when probable cause existed at the time inadmissible under these rules. An unlawful weapon, of extraction to believe that evidence of crime would contraband, or other evidence of a crime discovered be found and that the delay necessary to obtain a during a lawful inspection or inventory may be search warrant or search authorization could have seized and is admissible in accordance with this rule. resulted in the destruction of the evidence. Evidence (b) Lawful Inspections. An “inspection” is an exam- obtained from nonconsensual extraction of body flu- ination of the whole or part of a unit, organization, ids is admissible only when executed in a reasonable installation, vessel, aircraft, or vehicle, including an fashion by a person with appropriate medical examination conducted at entrance and exit points, qualifications. conducted as an incident of command the primary (e) Other Intrusive Searches. Evidence obtained purpose of which is to determine and to ensure the from a nonconsensual intrusive search of the body, security, military fitness, or good order and disci- other than searches described in subdivisions (c) or pline of the unit, organization, installation, vessel, (d), conducted to locate or obtain weapons, contra- aircraft, or vehicle. Inspections must be conducted in band, or evidence of crime is admissible only if a reasonable fashion and, if applicable, must comply obtained pursuant to a search warrant or search au- with Mil. R. Evid. 312. Inspections may utilize any thorization under Mil. R. Evid. 315 and conducted in reasonable natural or technological aid and may be a reasonable fashion by a person with appropriate conducted with or without notice to those inspected.

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(1) Purpose of Inspections. An inspection may Rule 314. Searches not requiring probable include, but is not limited to, an examination to cause determine and to ensure that any or all of the fol- (a) General Rule. Evidence obtained from reasona- lowing requirements are met: that the command is ble searches not requiring probable cause is admissi- properly equipped, functioning properly, maintaining ble at trial when relevant and not otherwise proper standards of readiness, sea or airworthiness, inadmissible under these rules or the Constitution of sanitation and cleanliness; and that personnel are the United States as applied to members of the present, fit, and ready for duty. An order to produce Armed Forces. body fluids, such as urine, is permissible in accord- (b) Border Searches. Evidence from a border search ance with this rule. for customs or immigration purposes authorized by a (2) Searches for Evidence. An examination made federal statute is admissible. for the primary purpose of obtaining evidence for (c) Searches Upon Entry to or Exit from United use in a trial by court-martial or in other disciplinary States Installations, Aircraft, and Vessels Abroad. In proceedings is not an inspection within the meaning addition to inspections under Mil. R. Evid. 313(b), of this rule. evidence is admissible when a commander of a United States military installation, enclave, or air- (3) Examinations to Locate and Confiscate Weap- craft on foreign soil, or in foreign or international ons or Contraband. airspace, or a United States vessel in foreign or (A) An inspection may include an examination international waters, has authorized appropriate per- to locate and confiscate unlawful weapons and other sonnel to search persons or the property of such contraband provided that the criteria set forth in sub- persons upon entry to or exit from the installation, division (b)(3)(B) are not implicated. enclave, aircraft, or vessel to ensure the security, (B) The prosecution must prove by clear and military fitness, or good order and discipline of the convincing evidence that the examination was an command. A search made for the primary purpose of inspection within the meaning of this rule if a pur- obtaining evidence for use in a trial by court-martial pose of an examination is to locate weapons or con- or other disciplinary proceeding is not authorized by traband, and if: subdivision (c).

(i) the examination was directed immediately Discussion following a report of a specific offense in the unit, Searches under subdivision (c) may not be conducted at a time or organization, installation, vessel, aircraft, or vehicle in a manner contrary to an express provision of a or and was not previously scheduled; agreement to which the United States is a party; however, failure (ii) specific individuals are selected for ex- to comply with a treaty or agreement does not render a search unlawful within the meaning of Mil. R. Evid. 311. amination; or

(iii) persons examined are subjected to sub- (d) Searches of Government Property. Evidence stantially different intrusions during the same resulting from a search of government property examination. without probable cause is admissible under this rule (c) Lawful Inventories. An “inventory” is a reasona- unless the person to whom the property is issued or ble examination, accounting, or other control meas- assigned has a reasonable expectation of privacy ure used to account for or control property, assets, or therein at the time of the search. Normally a person other resources. It is administrative and not does not have a reasonable expectation of privacy in prosecutorial in nature, and if applicable, the inven- government property that is not issued for personal tory must comply with Mil. R. Evid. 312. An exami- use. Wall or floor lockers in living quarters issued nation made for the primary purpose of obtaining for the purpose of storing personal possessions nor- evidence for use in a trial by court-martial or in mally are issued for personal use, but the determina- other disciplinary proceedings is not an inventory tion as to whether a person has a reasonable within the meaning of this rule. expectation of privacy in government property is- sued for personal use depends on the facts and cir- cumstances at the time of the search.

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(e) Consent Searches. (2) Stop and Frisk. Evidence is admissible if (1) General Rule. Evidence of a search conducted seized from a person who was lawfully stopped and without probable cause is admissible if conducted who was frisked for weapons because he or she was with lawful consent. reasonably suspected to be armed and dangerous. (2) Who May Consent. A person may consent to a Contraband or evidence that is located in the process search of his or her person or property, or both, of a lawful frisk may be seized.

unless control over such property has been given to Discussion another. A person may grant consent to search prop- erty when the person exercises control over that Subdivision (f)(2) requires that the official making the stop have a reasonable suspicion based on specific and articulable facts that property. the person being frisked is armed and dangerous. Officer safety is a factor, and the officer need not be absolutely certain that the Discussion individual detained is armed for the purposes of frisking or pat-

Where a co-occupant of property is physically present at the time ting down that person’s outer clothing for weapons. The test is of the requested search and expressly states his refusal to consent whether a reasonably prudent person in similar circumstances to the search, a warrantless search is unreasonable as to that co- would be warranted in a belief that his or her safety was in occupant and evidence from the search is inadmissible as to that danger. The purpose of a frisk is to search for weapons or other co-occupant. v. Randolph, 547 U.S. 103 (2006). 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; there- (3) Scope of Consent. Consent may be limited in fore, a frisk is reasonable under the Fourth Amendment.

any way by the person granting consent, including limitations in terms of time, place, or property, and (3) Vehicles. Evidence is admissible if seized in may be withdrawn at any time. the course of a search for weapons in the areas of (4) Voluntariness. To be valid, consent must be the passenger compartment of a vehicle in which a given voluntarily. Voluntariness is a question to be weapon may be placed or hidden, so long as the determined from all the circumstances. Although a person lawfully stopped is the driver or a passenger person’s knowledge of the right to refuse to give and the official who made the stop has a reasonable consent is a factor to be considered in determining suspicion that the person stopped is dangerous and voluntariness, the prosecution is not required to may gain immediate control of a weapon. demonstrate such knowledge as a prerequisite to es- tablishing a voluntary consent. Mere submission to Discussion

the color of authority of personnel performing law The scope of the search is similar to the ’stop and frisk’ defined enforcement duties or acquiescence in an announced in subdivision (f)(2) of this rule. During the search for weapons, or indicated purpose to search is not a voluntary the official may seize any item that is immediately apparent as consent. contraband or as evidence related to the offense serving as the basis for the stop. As a matter of safety, the official may, after (5) Burden and Standard of Proof. The prosecu- conducting a lawful stop of a vehicle, order the driver and any tion must prove consent by clear and convincing passengers out of the car without any additional suspicion or evidence. The fact that a person was in custody justification.

while granting consent is a factor to be considered in determining the voluntariness of consent, but it does (g) Searches Incident to Apprehension. not affect the standard of proof. (1) General Rule. Evidence is admissible if (f) Searches Incident to a Lawful Stop. seized in a search of a person who has been lawfully (1) Lawfulness. A stop is lawful when conducted apprehended or if seized as a result of a reasonable by a person authorized to apprehend under R.C.M. protective sweep. 302(b) or others performing law enforcement duties (2) Search for Weapons and Destructible Evi- and when the person making the stop has informa- dence. A lawful search incident to apprehension may tion or observes unusual conduct that leads him or include a search for weapons or destructible evi- her reasonably to conclude in light of his or her dence in the area within the immediate control of a experience that criminal activity may be afoot. The person who has been apprehended. ’Immediate con- stop must be temporary and investigatory in nature. trol’ means that area in which the individual search-

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ing could reasonably believe that the person these rules or the Constitution of the United States apprehended could reach with a sudden movement as applied to members of the Armed Forces. to obtain such property. Discussion (3) Protective Sweep for Other Persons. (A) Area of Potential Immediate Attack. Ap- Although military personnel should adhere to procedural guidance regarding the conduct of searches, violation of such procedural prehending officials may, incident to apprehension, guidance does not render evidence inadmissible unless the search as a precautionary matter and without probable is unlawful under these rules or the Constitution of the United cause or reasonable suspicion, look in closets and States as applied to members of the Armed Forces. For example, other spaces immediately adjoining the place of ap- if the person whose property is to be searched is present during a prehension from which an attack could be immedi- search conducted pursuant to a search authorization granted under ately launched. this rule, the person conducting the search should notify him or her of the fact of authorization and the general substance of the (B) Wider Protective Sweep. When an appre- authorization. Such notice may be made prior to or contem- hension takes place at a location in which another poraneously with the search. Property seized should be invento- person might be present who might endanger the ried at the time of a seizure or as soon thereafter as practicable. A apprehending officials or others in the area of the copy of the inventory should be given to a person from whose possession or premises the property was taken. Failure to provide apprehension, a search incident to arrest may law- notice, make an inventory, furnish a copy thereof, or otherwise fully include a reasonable examination of those comply with this guidance does not render a search or seizure spaces where a person might be found. Such a rea- unlawful within the meaning of Mil. R. Evid. 311. sonable examination is lawful under subdivision (g)

if the apprehending official has a reasonable suspi- (b) Definitions. As used in these rules: cion based on specific and articulable facts that the (1) “Search authorization” means express permis- area to be examined harbors an individual posing a sion, written or oral, issued by competent military danger to those in the area of the apprehension. authority to search a person or an area for specified (h) Searches within Jails, Confinement Facilities, or property or evidence or for a specific person and to Similar Facilities. Evidence obtained from a search seize such property, evidence, or person. It may con- within a jail, confinement facility, or similar facility tain an order directing subordinate personnel to con- is admissible even if conducted without probable duct a search in a specified manner. cause provided that it was authorized by persons (2) “Search warrant” means express permission to with authority over the institution. search and seize issued by competent civilian (i) Emergency Searches to Save Life or for Related authority. Purposes. Evidence obtained from emergency searches of persons or property conducted to save (c) Scope of Search Authorization. A search authori- life, or for a related purpose, is admissible provided zation may be valid under this rule for a search of: that the search was conducted in a good faith effort (1) the physical person of anyone subject to mili- to render immediate medical aid, to obtain informa- tary law or the wherever found; tion that will assist in the rendering of such aid, or (2) military property of the United States or of to prevent immediate or ongoing . nonappropriated fund activities of an Armed force of (j) Searches of Open Fields or Woodlands. Evi- the United States wherever located; dence obtained from a search of an open field or (3) persons or property situated on or in a mili- woodland is admissible provided that the search was tary installation, encampment, vessel, aircraft, vehi- not unlawful within the meaning of Mil. R. Evid. cle, or any other location under military control, 311. wherever located; or (4) nonmilitary property within a foreign country. Rule 315. Probable cause searches Discussion (a) General rule. Evidence obtained from reasona- ble searches conducted pursuant to a search warrant If nonmilitary property within a foreign country is owned, used, or search authorization, or under the exigent circum- occupied by, or in the possession of an agency of the United stances described in this rule, is admissible at trial States other than the Department of Defense, a search should be conducted in coordination with an appropriate representative of when relevant and not otherwise inadmissible under the agency concerned, although failure to obtain such coordina-

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tion would not render a search unlawful within the meaning of authorized to serve and execute search warrants. The Mil. R. Evid. 311. If other nonmilitary property within a foreign execution of a search warrant affects admissibility country is to be searched, the search should be conducted in only insofar as exclusion of evidence is required by accordance with any relevant treaty or agreement or in coordina- the Constitution of the United States or an applica- tion with an appropriate representative of the foreign country, although failure to obtain such coordination or noncompliance ble federal statute. with a treaty or agreement would not render a search unlawful (f) Basis for Search Authorizations. within the meaning of Mil. R. Evid. 311. (1) Probable Cause Requirement. A search au- thorization issued under this rule must be based (d) Who May Authorize. A search authorization upon probable cause. under this rule is valid only if issued by an impartial (2) Probable Cause Determination. Probable individual in one of the categories set forth in subdi- cause to search exists when there is a reasonable visions (d)(1) and (d)(2). An otherwise impartial belief that the person, property, or evidence sought authorizing official does not lose impartiality merely is located in the place or on the person to be sear- because he or she is present at the scene of a search ched. A search authorization may be based upon or is otherwise readily available to persons who may evidence in whole or in part. A determina- seek the issuance of a search authorization; nor does tion of probable cause under this rule will be based such an official lose impartial character merely be- upon any or all of the following: cause the official previously and impartially author- (A) written statements communicated to the ized investigative activities when such previous authorizing official; authorization is similar in intent or function to a (B) oral statements communicated to the pretrial authorization made by the United States dis- authorizing official in person, via telephone, or by trict courts. other appropriate means of communication; or (1) Commander. A commander or other person (C) such information as may be known by the serving in a position designated by the Secretary authorizing official that would not preclude the offi- concerned as either a position analogous to an offi- cer from acting in an impartial fashion. The Secre- cer in charge or a position of command, who has tary of Defense or the Secretary concerned may control over the place where the property or person prescribe additional requirements through . to be searched is situated or found, or, if that place (g) Exigencies. Evidence obtained from a probable is not under military control, having control over cause search is admissible without a search warrant persons subject to military law or the law of war; or or search authorization when there is a reasonable (2) Military Judge or Magistrate. A military belief that the delay necessary to obtain a search judge or magistrate if authorized under warrant or search authorization would result in the prescribed by the Secretary of Defense or the Secre- removal, destruction, or concealment of the property tary concerned. or evidence sought. Military operational necessity (e) Who May Search. may create an exigency by prohibiting or preventing (1) Search Authorization. Any commissioned of- communication with a person empowered to grant a ficer, warrant officer, petty officer, noncommis- search authorization. sioned officer, and, when in the execution of guard or duties, any criminal investigator, member Rule 316. Seizures of the Air Force security forces, military police, or (a) General rule. Evidence obtained from reasona- shore patrol, or person designated by proper author- ble seizures is admissible at trial when relevant and ity to perform guard or police duties, or any agent of not otherwise inadmissible under these rules or the any such person, may conduct or authorize a search Constitution of the United States as applied to mem- when a search authorization has been granted under bers of the Armed Forces. this rule or a search would otherwise be proper (b) Apprehension. Apprehension is governed by under subdivision (g). R.C.M. 302. (2) Search Warrants. Any civilian or military (c) Seizure of Property or Evidence. criminal investigator authorized to request search (1) Based on Probable Cause. Evidence is admis- warrants pursuant to applicable law or regulation is sible when seized based on a reasonable belief that

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the property or evidence is an unlawful weapon, Constitution of the United States as applied to mem- contraband, evidence of crime, or might be used to bers of the Armed Forces. resist apprehension or to escape. (2) Property. Abandoned property Rule 317. Interception of wire and oral may be seized without probable cause and without a communications search warrant or search authorization. Such seizure (a) General rule. Wire or oral communications con- may be made by any person. stitute evidence obtained as a result of an unlawful (3) Consent. Property or evidence may be seized search or seizure within the meaning of Mil. R. with consent consistent with the requirements appli- Evid. 311 when such evidence must be excluded cable to consensual searches under Mil. R. Evid. under the Fourth Amendment to the Constitution of 314. the United States as applied to members of the (4) Government Property. Government property Armed Forces or if such evidence must be excluded may be seized without probable cause and without a under a federal statute applicable to members of the search warrant or search authorization by any person Armed Forces. listed in subdivision (d), unless the person to whom the property is issued or assigned has a reasonable (b) When Authorized by Court Order Evidence from expectation of privacy therein, as provided in Mil. the interception of wire or oral communications is R. Evid. 314(d), at the time of the seizure. admissible when authorized pursuant to an applica- (5) Other Property. Property or evidence not in- tion to a federal judge of competent cluded in subdivisions (c)(1)-(4) may be seized for under the provisions of a federal statute. use in evidence by any person listed in subdivision (d) if: Discussion

(A) Authorization. The person is authorized to Pursuant to 18 U.S.C. §2516(1), the Attorney General, Deputy seize the property or evidence by a search warrant or Attorney General, Associate Attorney General, or any Assistant a search authorization under Mil. R. Evid. 315; Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant (B) Exigent Circumstances. The person has Attorney General in the Criminal Division or National Security probable cause to seize the property or evidence and Division specially designated by the Attorney General, may au- under Mil. R. Evid. 315(g) a search warrant or thorize an application to a Federal judge of competent jurisdiction search authorization is not required; or for, and such judge may grant in conformity with 18 U.S.C. §2518, an order authorizing or approving the interception of wire (C) Plain View. The person while in the course or oral communications by the Federal Bureau of Investigation, or of otherwise lawful activity observes in a reasonable a Federal agency having responsibility for the investigation of the fashion property or evidence that the person has offense as to which the application is made, for purposes of probable cause to seize. obtaining evidence concerning the offenses enumerated in 18 (6) Temporary . Nothing in this rule U.S.C. §2516(1), to the extent such offenses are punishable under prohibits temporary detention of property on less the Uniform Code of Military Justice.

than probable cause when authorized under the Con- stitution of the United States. (c) Regulations. Notwithstanding any other provi- (d) Who May Seize. Any commissioned officer, sion of these rules, evidence obtained by members warrant officer, petty officer, noncommissioned offi- of the Armed Forces or their agents through inter- cer, and, when in the execution of guard or police ception of wire or oral communications for law en- duties, any criminal investigator, member of the Air forcement purposes is not admissible unless such Force security forces, military police, or shore pa- interception: trol, or individual designated by proper authority to (1) takes place in the United States and is author- perform guard or police duties, or any agent of any such person, may seize property pursuant to this ized under subdivision (b); rule. (2) takes place outside the United States and is (e) Other Seizures. Evidence obtained from a sei- authorized under regulations issued by the Secretary zure not addressed in this rule is admissible pro- of Defense or the Secretary concerned; or vided that its seizure was permissible under the (3) is authorized under regulations issued by the

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Secretary of Defense or the Secretary concerned and unlawful if it is conducted in violation of the ac- is not unlawful under applicable federal . cused’s rights to counsel. (A) Military Lineups. An accused or suspect is Rule 321. Eyewitness identification entitled to counsel if, after preferral of charges or (a) General rule. Testimony concerning a relevant imposition of pretrial restraint under R.C.M. 304 for out-of-court identification by any person is admissi- the offense under investigation, the accused is re- ble, subject to an appropriate objection under this quired by persons subject to the code or their agents rule, if such testimony is otherwise admissible under to participate in a lineup for the purpose of identifi- these rules. The witness making the identification cation. When a person entitled to counsel under this and any person who has observed the previous iden- rule requests counsel, a judge advocate or a person tification may testify concerning it. When in testi- certified in accordance with Article 27(b) will be mony a witness identifies the accused as being, or provided by the United States at no expense to the not being, a participant in an offense or makes any accused or suspect and without regard to indigency other relevant identification concerning a person in or lack thereof before the lineup may proceed. The the courtroom, evidence that on a previous occasion accused or suspect may waive the rights provided in the witness made a similar identification is admissi- this rule if the waiver is freely, knowingly, and intel- ble to corroborate the witness’s testimony as to iden- ligently made. tity even if the credibility of the witness has not (B) Nonmilitary Lineups. When a person sub- been attacked directly, subject to appropriate objec- ject to the code is required to participate in a lineup tion under this rule. for purposes of identification by an official or agent (b) When Inadmissible. An identification of the ac- of the United States, of the District of Columbia, or cused as being a participant in an offense, whether of a State, Commonwealth, or possession of the such identification is made at the trial or otherwise, United States, or any political subdivision of such a is inadmissible against the accused if: State, Commonwealth, or possession, and the provi- (1) The identification is the result of an unlawful sions of subdivision (c)(2)(A) do not apply, the per- lineup or other unlawful identification process, as son’s entitlement to counsel and the validity of any defined in subdivision (c), conducted by the United waiver of applicable rights will be determined by the States or other domestic authorities and the accused principles of law generally recognized in the trial of makes a timely motion to suppress or an objection to criminal cases in the United States district courts the evidence under this rule; or involving similar lineups. (2) Exclusion of the evidence is required by the (d) Motions to Suppress and Objections. Due Process Clause of the Fifth Amendment to the (1) Disclosure. Prior to arraignment, the prosecu- Constitution of the United States as applied to mem- tion must disclose to the defense all evidence of, or bers of the Armed Forces. Evidence other than an derived from, a prior identification of the accused as identification of the accused that is obtained as a a lineup or other identification process that it intends result of the unlawful lineup or unlawful identifica- to offer into evidence against the accused at trial. tion process is inadmissible against the accused if (2) Time Requirement. When such evidence has the accused makes a timely motion to suppress or an been disclosed, any motion to suppress or objection objection to the evidence under this rule and if ex- under this rule must be made by the defense prior to clusion of the evidence is required under the Consti- submission of a plea. In the absence of such motion tution of the United States as applied to members of or objection, the defense may not raise the issue at a the Armed Forces. later time except as permitted by the military judge (c) Unlawful Lineup or Identification Process. for good cause shown. Failure to so move consti- (1) Unreliable. A lineup or other identification tutes a waiver of the motion or objection. process is unreliable, and therefore unlawful, if the (3) Continuing Duty. If the prosecution intends to lineup or other identification process is so suggestive offer such evidence and the evidence was not dis- a s t o c r e a t e a s u b s t a n t i a l l i k e l i h o o d o f closed prior to arraignment, the prosecution must misidentification. provide timely notice to the military judge and coun- (2) In Violation of Right to Counsel. A lineup is sel for the accused. The defense may enter an objec-

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tion at that time, and the military judge may make lineup is also a result thereof unless the military such orders as are required in the interests of justice. judge determines that the contrary has been shown (4) Specificity. The military judge may require by clear and convincing evidence. the defense to specify the grounds upon which the (B) Unreliable Identification. defense moves to suppress or object to evidence. If (i) Initial Unreliable Identification. When an defense counsel, despite the exercise of due dili- objection raises the issue of an unreliable identifica- gence, has been unable to interview adequately those tion, the prosecution must prove by a preponderance persons involved in the lineup or other identification of the evidence that the identification was reliable process, the military judge may enter any order re- under the circumstances. quired by the interests of justice, including authori- (ii) Identification Subsequent to an Unreli- zation for the defense to make a general motion to able Identification. When the military judge deter- suppress or a general objection. mines that an identification is the result of an (5) Defense Evidence. The defense may present unreliable identification, a later identification may evidence relevant to the issue of the admissibility of be admitted if the prosecution proves by clear and evidence as to which there has been an appropriate convincing evidence that the later identification is motion or objection under this rule. An accused may not the result of the inadmissible identification. testify for the limited purpose of contesting the le- (7) Rulings. A motion to suppress or an objection gality of the lineup or identification process giving to evidence made prior to plea under this rule will rise to the challenged evidence. Prior to the intro- be ruled upon prior to plea unless the military judge, duction of such testimony by the accused, the de- for good cause, orders that it be deferred for deter- fense must inform the military judge that the mination at the trial of the general issue or until testimony is offered under subdivision (d). When the after findings, but no such determination will be accused testifies under subdivision (d), the accused may be cross-examined only as to the matter on deferred if a party’s right to appeal the ruling is which he or she testifies. Nothing said by the ac- affected adversely. Where factual issues are involved cused on either direct or cross-examination may be in ruling upon such motion or objection, the military used against the accused for any purpose other than judge will state his or her essential findings of fact in a prosecution for perjury, false swearing, or the on the record. making of a false official statement. (e) Effect of Guilty . Except as otherwise ex- (6) Burden and Standard of Proof. When the de- pressly provided in R.C.M. 910(a)(2), a plea of fense has raised a specific motion or objection under guilty to an offense that results in a finding of guilty subdivision (d)(3), the burden on the prosecution waives all issues under this rule with respect to that extends only to the grounds upon which the defense offense whether or not raised prior to the plea. moved to suppress or object to the evidence. SECTION IV (A) Right to Counsel. RELEVANCY AND ITS LIMITS (i) Initial Violation of Right to Counsel at a Lineup. When the accused raises the right to pres- ence of counsel under this rule, the prosecution must Rule 401. Test for relevant evidence prove by a preponderance of the evidence that coun- Evidence is relevant if: sel was present at the lineup or that the accused, (a) it has any tendency to make a fact more or less having been advised of the right to the presence of probable than it would be without the evidence; and counsel, voluntarily and intelligently waived that (b) the fact is of consequence in determining the right prior to the lineup. action. (ii) Identification Subsequent to a Lineup Conducted in Violation of the Right to Counsel. Rule 402. General admissibility of relevant When the military judge determines that an identifi- evidence cation is the result of a lineup conducted without the presence of counsel or an appropriate waiver, any (a) Relevant evidence is admissible unless any of later identification by one present at such unlawful the following provides otherwise:

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(1) the United States Constitution as it applies to (ii) offer evidence of the accused’s same members of the Armed Forces; trait; and (2) a federal statute applicable to trial by courts- (C) in a homicide or case, the prosecu- martial; tion may offer evidence of the alleged victim’s trait (3) these rules; or of peacefulness to rebut evidence that the victim was (4) this Manual. the first aggressor. (b) Irrelevant evidence is not admissible. (3) Exceptions for a Witness. Evidence of a wit- ness’s character may be admitted under Mil R. Evid. 607, 608, and 609. Rule 403. Excluding relevant evidence for (b) , Wrongs, or Other Acts. prejudice, confusion, waste of time, or other reasons (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s The military judge may exclude relevant evidence character in order to show that on a particular occa- if its probative value is substantially outweighed by sion the person acted in accordance with the a danger of one or more of the following: unfair character. prejudice, confusing the issues, misleading the mem- bers, undue delay, wasting time, or needlessly (2) Permitted Uses; Notice. This evidence may be presenting cumulative evidence. admissible for another purpose, such as proving mo- tive, opportunity, intent, preparation, plan, knowl- edge, identity, absence of mistake, or lack of Rule 404. ; crimes or accident. On request by the accused, the prosecution other acts must: (a) Character Evidence. (A) provide reasonable notice of the general (1) Prohibited Uses. Evidence of a person’s char- nature of any such evidence that the prosecution acter or character trait is not admissible to prove that intends to offer at trial; and on a particular occasion the person acted in accord- (B) do so before trial – or during trial if the ance with the character or trait. military judge, for good cause, lack of pre- (2) Exceptions for an Accused or Victim trial notice. (A) The accused may offer evidence of the ac- cused’s pertinent trait and, if the evidence is admit- Rule 405. Methods of proving character ted, the prosecution may offer evidence to rebut it. (a) By Reputation or Opinion. When evidence of a General military character is not a pertinent trait for person’s character or character trait is admissible, it the purposes of showing the probability of innocence may be proved by testimony about the person’s rep- of the accused for the following offenses under the utation or by testimony in the form of an opinion. UCMJ: On cross-examination of the character witness, the (i) Articles 120-123a; military judge may allow an inquiry into relevant (ii) Articles 125-127; specific instances of the person’s conduct. (iii) Articles 129-132; (b) By Specific Instances of Conduct. When a per- (iv) Any other offense in which evidence of son’s character or character trait is an essential ele- general military character of the accused is not rele- ment of a charge, claim, or defense, the character or vant to any element of an offense for which the trait may also be proved by relevant specific in- accused has been charged; or stances of the person’s conduct. (v) An or to commit one (c) By Affidavit. The defense may introduce affida- of the above offenses. vits or other written statements of persons other than the accused concerning the character of the accused. (B) Subject to the limitations in Mil. R. Evid. If the defense introduces affidavits or other written 412, the accused may offer evidence of an alleged statements under this subdivision, the prosecution victim’s pertinent trait, and if the evidence is admit- may, in rebuttal, also introduce affidavits or other ted, the prosecution may: written statements regarding the character of the ac- (i) offer evidence to rebut it; and cused. Evidence of this type may be introduced by

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the defense or prosecution only if, aside from being the exercise of its regulatory, investigative, or en- contained in an affidavit or other written statement, forcement authority. it would otherwise be admissible under these rules. (b) Exceptions. The military judge may admit this (d) Definitions. “Reputation” means the estimation evidence for another purpose, such as proving wit- in which a person generally is held in the commu- ness bias or prejudice, negating a contention of un- nity in which the person lives or pursues a business due delay, or proving an effort to obstruct a criminal or profession. “Community” in the Armed Forces investigation or prosecution. includes a post, camp, ship, station, or other military organization regardless of size. Rule 409. Offers to pay medical and similar expenses Rule 406. Habit; routine practice Evidence of furnishing, promising to pay, or of- Evidence of a person’s habit or an organization’s fering to pay medical, hospital, or similar expenses routine practice may be admitted to prove that on a resulting from an injury is not admissible to prove particular occasion the person or organization acted liability for the injury. in accordance with the habit or routine practice. The military judge may admit this evidence regardless of Rule 410. Pleas, plea discussions, and whether it is corroborated or whether there was an related statements eyewitness. (a) Prohibited Uses. Evidence of the following is not admissible against the accused who made the Rule 407. Subsequent remedial measures plea or participated in the plea discussions: (a) When measures are taken that would have made (1) a guilty plea that was later withdrawn; an earlier injury or harm less likely to occur, evi- (2) a nolo contendere plea; dence of the subsequent measures is not admissible (3) any statement made in the course of any judi- to prove: cial inquiry regarding either of the foregoing pleas; (1) ; or (2) culpable conduct; (4) any statement made during plea discussions (3) a defect in a product or its design; or with the convening authority, staff judge advocate, (4) a need for a warning or instruction. trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they (b) The military judge may admit this evidence for resulted in a later-withdrawn guilty plea. another purpose, such as impeachment or – if dis- (b) Exceptions. The military judge may admit a puted – proving ownership, control, or the feasibility of precautionary measures. 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 Rule 408. Compromise offers and fairness the statements ought to be considered to- negotiations gether; or (a) Prohibited Uses. Evidence of the following is (2) in a proceeding for perjury or false statement, not admissible – on behalf of any party – either to if the accused made the statement under oath, on the prove or disprove the validity or amount of a dis- record, and with counsel present. puted claim or to impeach by a prior inconsistent (c) Request for Administrative Disposition. A “state- statement or a contradiction: ment made during plea discussions” includes a state- (1) furnishing, promising, or offering – or accept- ment made by the accused solely for the purpose of ing, promising to accept, or offering to accept – a requesting disposition under an authorized procedure valuable consideration in order to compromise the for administrative action in lieu of trial by court- claim; and martial; “on the record” includes the written state- (2) conduct or a statement made during compro- ment submitted by the accused in furtherance of mise negotiations about the claim – except when the such request. negotiations related to a claim by a public office in

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Rule 411. Liability Insurance be closed. At this hearing, the parties may call wit- Evidence that a person was or was not insured nesses, including the alleged victim, and offer rele- against liability is not admissible to prove whether vant evidence. The alleged victim must be afforded the person acted negligently or otherwise wrongful- a reasonable opportunity to attend and be heard. ly. The military judge may admit this evidence for However, the hearing may not be unduly delayed for another purpose, such as proving witness bias or this purpose. The right to be heard under this rule prejudice or proving agency, ownership, or control. includes the right to be heard through counsel, in- cluding Sp ec ia l Victims’ Counsel under section 1044e of title 10, United States Code. In a case Rule 412. Sex offense cases: The victim’s before a court- martial composed of a military sexual behavior or predisposition judge and members, the military judge shall (a) Evidence generally inadmissible. The following conduct the hearing outside the presence of the evidence is not admissible in any proceeding involv- members pursuant to Article 39(a). The motion, ing an alleged sexual offense except as provided in related papers, and the record of the hearing must subdivisions (b) and (c): be sealed in accordance with (1) Evidence offered to prove that any alleged R.C.M. 1103A and remain under seal unless the victim engaged in other sexual behavior. military judge or an appellate court orders otherwise. (2) Evidence offered to prove any alleged vic- (3) If the military judge determines on the basis tim’s sexual predisposition. of the hearing described in paragraph (2) of this (b) Exceptions. subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (1) In a proceeding, the following evidence is ad- (b) and that the probative value of such evidence missible, if otherwise admissible under these rules: outweighs the danger of unfair prejudice to the al- (A) evidence of specific instances of sexual be- leged victim’s privacy, such evidence shall be ad- havior by the alleged victim offered to prove that a missible under this rule to the extent an order made person other than the accused was the source of by the military judge specifies evidence that may be semen, injury, or other physical evidence; offered and areas with respect to which the alleged (B) evidence of specific instances of sexual be- victim may be examined or cross-examined. Such havior by the alleged victim with respect to the evidence is still subject to challenge under Mil. R. person accused of the sexual misconduct offered by Evid. 403. the accused to prove consent or by the prosecution; (d) For purposes of this rule, the term “sexual of- and fense” includes any sexual misconduct punishable (C) evidence the exclusion of which would vi- under the Uniform Code of Military Justice, federal olate the constitutional rights of the accused. law or state law. “Sexual behavior” includes any (c) Procedure to determine admissibility. sexual behavior not encompassed by the alleged of- fense. The term “sexual predisposition” refers to an (1) A party intending to offer evidence under sub- alleged victim’s mode of dress, speech, or lifestyle section (b) must— that does not directly refer to sexual activities or (A) file a written motion at least 5 days prior thoughts but that may have a sexual connotation for to entry of pleas specifically describing the evidence the fact finder. and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and Rule 413. Similar crimes in sexual offense (B) serve the motion on the opposing party and cases the military judge and notify the alleged victim or, (a) Permitted Uses. In a court-martial proceeding when appropriate, the alleged victim’s guardian or representative. (2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall

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for a sexual offense, the military judge may admit of pleas or at a later time that the military judge evidence that the accused committed any other sex- allows for good cause. ual offense. The evidence may be considered on any (c) Effect on Other Rules. This rule does not limit matter to which it is relevant. the admission or consideration of evidence under (b) Disclosure to the Accused. If the prosecution any other rule. intends to offer this evidence, the prosecution must (d) Definitions. As used in this rule: disclose it to the accused, including any ’ (1) “Child” means a person below the age of 16; statements or a summary of the expected testimony. and The prosecution must do so at least 5 days prior to (2) “Child molestation” means an offense punish- entry of pleas or at a later time that the military able under the Uniform Code of Military Justice, or judge allows for good cause. a crime under federal law or under state law (as (c) Effect on Other Rules. This rule does not limit “state” is defined in 18 U.S.C. § 513), that involves: the admission or consideration of evidence under (A) any conduct prohibited by Article 120 and any other rule. committed with a child; (d) Definition. As used in this rule, “sexual offense” (B) any conduct prohibited by 18 U.S.C. chap- means an offense punishable under the Uniform ter 109A and committed with a child; Code of Military Justice, or a crime under federal or state law (as “state” is defined in 18 U.S.C. § 513), (C) any conduct prohibited by 18 U.S.C. chap- involving: ter 110; (D) contact between any part of the accused’s (1) any conduct prohibited by Article 120; body, or an object held or controlled by the accused, (2) any conduct prohibited by 18 U.S.C. chapter and a child’s genitals or anus; 109A; (E) contact between the accused’s genitals or (3) contact, without consent, between any part of anus and any part of a child’s body; the accused’s body, or an object held or controlled (F) contact with the aim of deriving sexual by the accused, and another person’s genitals or pleasure or gratification from inflicting death, bodily anus; injury, or physical pain on a child; or (4) contact, without consent, between the ac- (G) an attempt or conspiracy to engage in con- cused’s genitals or anus and any part of another duct described in subdivisions (d)(2)(A)-(F). person’s body;

(5) contact with the aim of deriving sexual pleas- SECTION V ure or gratification from inflicting death, bodily inju- ry, or physical pain on another person; or PRIVILEGES (6) an attempt or conspiracy to engage in conduct Rule 501. Privilege in general described in subdivisions (d)(1)-(5). (a) A person may not claim a privilege with respect to any matter except as required by or provided for Rule 414. Similar crimes in child-molestation in: cases (1) the United States Constitution as applied to (a) Permitted Uses. In a court-martial proceeding in members of the Armed Forces; which an accused is charged with an act of child molestation, the military judge may admit evidence (2) a federal statute applicable to trials by courts- that the accused committed any other offense of martial; child molestation. The evidence may be considered (3) these rules; on any matter to which it is relevant. (4) this Manual; or (b) Disclosure to the Accused. If the prosecution (5) the principles of common law generally rec- intends to offer this evidence, the prosecution must ognized in the trial of criminal cases in the United disclose it to the accused, including witnesses’ state- States district courts under rule 501 of the Federal ments or a summary of the expected testimony. The Rules of Evidence, insofar as the application of such prosecution must do so at least 5 days prior to entry principles in trials by courts-martial is practicable

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and not contrary to or inconsistent with the Uniform tary investigation or proceeding. The term “” Code of Military Justice, these rules, or this Manual. does not include a member of the Armed Forces (b) A claim of privilege includes, but is not limited serving in a capacity other than as a judge advocate, to, the assertion by any person of a privilege to: legal officer, or law specialist as defined in Article 1, unless the member: (1) refuse to be a witness; (A) is detailed, assigned, or otherwise provided (2) refuse to disclose any matter; to represent a person in a court-martial case or in (3) refuse to produce any object or writing; or any military investigation or proceeding; (4) prevent another from being a witness or dis- (B) is authorized by the Armed Forces, or rea- closing any matter or producing any object or sonably believed by the client to be authorized, to writing. render professional legal services to members of the (c) The term “person” includes an appropriate repre- Armed Forces; or sentative of the Federal Government, a State, or po- (C) is authorized to practice law and renders litical subdivision thereof, or any other entity p r o fe s sio n al legal ser vices d uring o f f-d ut y claiming to be the holder of a privilege. employment. (d) Notwithstanding any other provision of these (3) “Lawyer’s representative” means a person rules, information not otherwise privileged does not employed by or assigned to assist a lawyer in pro- become privileged on the basis that it was acquired viding professional legal services. by a medical officer or civilian physician in a (4) A communication is “confidential” if not in- professional capacity. tended to be disclosed to third persons other than those to whom disclosure is in furtherance of the Rule 502. Lawyer-client privilege rendition of professional legal services to the client (a) General Rule. A client has a privilege to refuse or those reasonably necessary for the transmission of to disclose and to prevent any other person from the communication. disclosing confidential communications made for the (c) Who May Claim the Privilege. The privilege purpose of facilitating the rendition of professional may be claimed by the client, the guardian or con- legal services to the client: servator of the client, the personal representative of (1) between the client or the client’s representa- a deceased client, or the successor, trustee, or similar tive and the lawyer or the lawyer’s representative; representative of a corporation, association, or other (2) between the lawyer and the lawyer ’s organization, whether or not in existence. The law- representative; yer or the lawyer’s representative who received the communication may claim the privilege on behalf of (3) by the client or the client’s lawyer to a lawyer the client. The authority of the lawyer to do so is representing another in a matter of common interest; presumed in the absence of evidence to the contrary. (4) between representatives of the client or be- (d) Exceptions. There is no privilege under this rule tween the client and a representative of the client; or under any of the following circumstances: (5) between representing the client. (1) Crime or . If the communication clearly (b) Definitions. As used in this rule: contemplated the future commission of a fraud or (1) “Client” means a person, public officer, cor- crime or if services of the lawyer were sought or poration, association, organization, or other entity, obtained to enable or aid anyone to commit or plan either public or private, who receives professional to commit what the client knew or reasonably legal services from a lawyer, or who consults a should have known to be a crime or fraud; lawyer with a view to obtaining professional legal (2) Claimants through Same Deceased Client. As services from the lawyer. to a communication relevant to an issue between (2) “Lawyer” means a person authorized, or rea- parties who claim through the same deceased client, sonably believed by the client to be authorized, to regardless of whether the claims are by testate or practice law; or a member of the Armed Forces intestate succession or by inter vivos transaction; detailed, assigned, or otherwise provided to repre- (3) Breach of Duty by Lawyer or Client. As to a sent a person in a court-martial case or in any mili- communication relevant to an issue of breach of

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duty by the lawyer to the client or by the client to (b) Confidential Communication Made During the the lawyer; Marriage. (4) Document Attested by the Lawyer. As to a (1) General Rule. A person has a privilege during communication relevant to an issue concerning an and after the marital relationship to refuse to dis- attested document to which the lawyer is an attesting close, and to prevent another from disclosing, any witness; or confidential communication made to the spouse of (5) Joint Clients. As to a communication relevant the person while they were husband and wife and to a matter of common interest between two or more not separated as provided by law. clients if the communication was made by any of (2) Definition. As used in this rule, a communica- them to a lawyer retained or consulted in common, tion is “confidential” if made privately by any per- when offered in an action between any of the son to the spouse of the person and is not intended clients. to be disclosed to third persons other than those reasonably necessary for transmission of the Rule 503. Communications to clergy communication. (a) General Rule. A person has a privilege to refuse (3) Who May Claim the Privilege. The privilege to disclose and to prevent another from disclosing a may be claimed by the spouse who made the com- confidential communication by the person to a cler- munication or by the other spouse on his or her gyman or to a clergyman’s assistant, if such commu- behalf. The authority of the latter spouse to do so is nication is made either as a formal act of religion or presumed in the absence of evidence of a waiver. as a matter of conscience. The privilege will not prevent disclosure of the com- (b) Definitions. As used in this rule: munication at the request of the spouse to whom the (1) “Clergyman” means a minister, priest, rabbi, communication was made if that spouse is an ac- chaplain, or other similar functionary of a religious cused regardless of whether the spouse who made organization, or an individual reasonably believed to the communication objects to its disclosure. be so by the person consulting the clergyman. (c) Exceptions. (2) “Clergyman’s assistant” means a person em- (1) To Spousal Incapacity Only. There is no priv- ployed by or assigned to assist a clergyman in his ilege under subdivision (a) when, at the time the capacity as a spiritual advisor. testimony of one of the parties to the marriage is to (3) A communication is “confidential” if made to be introduced in evidence against the other party, the a clergyman in the clergyman’s capacity as a spirit- parties are divorced or the marriage has been ual adviser or to a clergyman’s assistant in the as- annulled. sistant’s official capacity and is not intended to be (2) To Spousal Incapacity and Confidential Com- disclosed to third persons other than those to whom munications. There is no privilege under subdivi- disclosure is in furtherance of the purpose of the sions (a) or (b): communication or to those reasonably necessary for (A) In proceedings in which one spouse is the transmission of the communication. charged with a crime against the person or property (c) Who May Claim the Privilege. The privilege of the other spouse or a child of either, or with a may be claimed by the person, guardian, or conser- crime against the person or property of a third per- vator, or by a personal representative if the person is son committed in the course of committing a crime deceased. The clergyman or clergyman’s assistant against the other spouse; who received the communication may claim the (B) When the marital relationship was entered privilege on behalf of the person. The authority of into with no intention of the parties to live together the clergyman or clergyman’s assistant to do so is as spouses, but only for the purpose of using the presumed in the absence of evidence to the contrary. purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the rela- Rule 504. Husband-wife privilege tionship remains a sham at the time the testimony or (a) Spousal Incapacity. A person has a privilege to statement of one of the parties is to be introduced refuse to testify against his or her spouse. against the other; or with respect to the privilege in

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subdivision (b), the relationship was a sham at the not authorized to receive such information. The Sec- time of the communication; or retary of Defense may prescribe security procedures (C) In proceedings in which a spouse is for protection against the compromise of classified charged, in accordance with Article 133 or 134, with information submitted to courts-martial and appel- importing the other spouse as an alien for prostitu- late authorities. tion or other immoral purpose in violation of 18 (b) Definitions. As used in this rule: U.S.C. §1328; with transporting the other spouse in (1) “Classified information” means any informa- interstate commerce for immoral purposes or other tion or material that has been determined by the offense in violation of 18 U.S.C. §§ 2421-2424; or United States Government pursuant to an with violation of such other similar statutes under order, statute, or regulations, to require protection which such privilege may not be claimed in the trial against unauthorized disclosure for reasons of na- of criminal cases in the United States district courts. tional security, and any restricted data, as defined in (D) Where both parties have been substantial 42 U.S.C. §2014(y). participants in illegal activity, those communications (2) “National security” means the national de- between the spouses during the marriage regarding fense and foreign relations of the United States. the illegal activity in which they have jointly partici- (3) “In camera hearing” means a session under pated are not marital communications for purposes Article 39(a) from which the public is excluded. of the privilege in subdivision (b) and are not enti- (4) “In camera review” means an inspection of tled to protection under the privilege in subdivision documents or other evidence conducted by the mili- (b). tary judge alone in and not on the record. (d) Definitions. As used in this rule: (5) “Ex parte” means a discussion between the (1) “A child of either” means a biological child, military judge and either the defense counsel or adopted child, or ward of one of the spouses and prosecution, without the other party or the public includes a child who is under the permanent or tem- present. This discussion can be on or off the record, porary physical custody of one of the spouses, re- depending on the circumstances. The military judge gardless of the existence of a legal parent-child will grant a request for an ex parte discussion or relationship. For purposes of this rule only, a child hearing only after finding that such discussion or is: hearing is necessary to protect classified information (A) an individual under the age of 18; or or other good cause. Prior to granting a request from (B) an individual with a mental handicap who one party for an ex parte discussion or hearing, the functions under the age of 18. military judge must provide notice to the opposing (2) “Temporary physical custody” means a parent party on the record. If the ex parte discussion is has entrusted his or her child with another. There is conducted off the record, the military judge should no minimum amount of time necessary to establish later state on the record that such ex parte discussion temporary physical custody, nor is a written agree- took place and generally summarize the subject mat- ment required. Rather, the focus is on the parent’s ter of the discussion, as appropriate. agreement with another for assuming parental re- (c) Access to Evidence. Any information admitted sponsibility for the child. For example, temporary into evidence pursuant to any rule, procedure, or physical custody may include instances where a par- order by the military judge must be provided to the ent entrusts another with the care of their child for accused. recurring care or during absences due to temporary (d) Declassification. Trial counsel should, when duty or deployments. practicable, seek declassification of evidence that may be used at trial, consistent with the require- Rule 505. Classified information ments of national security. A decision not to declas- (a) General Rule. Classified information must be sify evidence under this section is not subject to protected and is privileged from disclosure if disclo- review by a military judge or upon appeal. sure would be detrimental to the national security. (e) Action Prior to Referral of Charges Under no circumstances may a military judge order (1) Prior to referral of charges, upon a showing the release of classified information to any person by the accused that the classified information sought

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is relevant and necessary to an element of the of- (ii) the provision of notice required by sub- fense or a legally cognizable defense, the convening division (i) of this rule; and authority must respond in writing to a request by the (iii) established by subdivision (j) of this accused for classified information if the privilege in rule. this rule is claimed for such information. In response (B) Other Matters. At the pretrial conference, to such a request, the convening authority may: the military judge may also consider any matter that (A) delete specified items of classified infor- relates to classified information or that may promote mation from documents made available to the a fair and expeditious trial. accused; (4) Convening Authority Notice and Action. If a (B) substitute a portion or summary of the in- claim of privilege has been made under this rule formation for such classified documents; with respect to classified information that apparently (C) substitute a statement admitting relevant contains evidence that is relevant and necessary to facts that the classified information would tend to an element of the offense or a legally cognizable prove; defense and is otherwise admissible in evidence in (D) provide the document subject to conditions the court-martial proceeding, the matter must be that will guard against the compromise of the infor- reported to the convening authority. The convening mation disclosed to the accused; or authority may: (E) withhold disclosure if actions under (A) (A) institute action to obtain the classified in- through (D) cannot be taken without causing identi- formation for the use by the military judge in mak- fiable damage to the national security. ing a determination under subdivision (j); (2) An Article 32 investigating officer may not (B) dismiss the charges; rule on any objection by the accused to the release (C) dismiss the charges or specifications or of documents or information protected by this rule. both to which the information relates; or (3) Any objection by the accused to the withhold- (D) take such other action as may be required ing of information or to the conditions of disclosure in the interests of justice. must be raised through a motion for appropriate re- (5) Remedies. If, after a reasonable period of lief at a pretrial conference. time, the information is not provided to the military (f) Actions after Referral of Charges. judge in circumstances where proceeding with the (1) Pretrial Conference. At any time after referral case without such information would materially prej- of charges, any party may move for a pretrial con- udice a substantial right of the accused, the military ference under Article 39(a) to consider matters relat- judge must dismiss the charges or specifications or ing to classified information that may arise in both to which the classified information relates. connection with the trial. Following such a motion, (g) Protective Orders. Upon motion of the trial or when the military judge recognizes the need for counsel, the military judge must issue an order to such conference, the military judge must promptly protect against the disclosure of any classified infor- hold a pretrial conference under Article 39(a). mation that has been disclosed by the United States (2) Ex Parte Permissible. Upon request by either to any accused in any court-martial proceeding or party and with a showing of good cause, the military that has otherwise been provided to, or obtained by, judge must hold such conference ex parte to the any such accused in any such court-martial proceed- extent necessary to protect classified information ing. The terms of any such protective order may from disclosure. include, but are not limited to, provisions. (3) Matters to be Established at Pretrial Confer- (1) prohibiting the disclosure of the information ence. except as authorized by the military judge; (A) Timing of Subsequent Actions. At the pre- (2) requiring storage of material in a manner ap- trial conference, the military judge must establish propriate for the level of classification assigned to the timing of: the documents to be disclosed; (i) requests for discovery; (3) requiring controlled access to the material

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during normal business hours and at other times (i) to delete or withhold specified items of upon reasonable notice; classified information; (4) mandating that all persons requiring security (ii) to substitute a summary for classified in- clearances will cooperate with investigatory person- formation; or nel in any investigations that are necessary to obtain (iii) to substitute a statement admitting rele- a security clearance; vant facts that the classified information or material (5) requiring the maintenance of logs regarding would tend to prove, unless the military judge deter- access by all persons authorized by the military mines that disclosure of the classified information judge to have access to the classified information in itself is necessary to enable the accused to prepare connection with the preparation of the defense; for trial. (6) regulating the making and handling of notes (B) In Camera Review. The military judge must, upon the request of the prosecution, conduct taken from material containing classified informa- an in camera review of the prosecution’s motion and tion; or any materials submitted in support thereof and must (7) requesting the convening authority to author- not disclose such information to the accused. ize the assignment of government security personnel (C) Action by Military Judge. The military and the provision of government storage facilities. judge must grant the request of the trial counsel to (h) Discovery and Access by the Accused. substitute a summary or to substitute a statement (1) Limitations. admitting relevant facts, or to provide other relief in (A) Government Claim of Privilege. In a court- accordance with subdivision (h)(2)(A), if the mili- martial proceeding in which the government seeks to tary judge finds that the summary, statement, or delete, withhold, or otherwise obtain other relief other relief would provide the accused with substan- with respect to the discovery of or access to any tially the same ability to make a defense as would discovery of or access to the specific classified classified information, the trial counsel must submit information. a declaration invoking the United States’ classified information privilege and setting forth the damage to (3) Reconsideration. An order of a military judge the national security that the discovery of or access authorizing a request of the trial counsel to sub- to such information reasonably could be expected to stitute, summarize, withhold, or prevent access to cause. The declaration must be signed by the head, classified information under subdivision (h) is not subject to a motion for reconsideration by the ac- or designee, of the executive or military department cused, if such order was entered pursuant to an ex or government agency concerned. parte showing under subdivision (h). (B) Standard for Discovery or Access by the (i) Disclosure by the Accused. Accused. Upon the submission of a declaration (1) Notification to Trial Counsel and Military under subdivision (h)(1)(A), the military judge may Judge. If an accused reasonably expects to disclose, not authorize the discovery of or access to such or to cause the disclosure of, classified information classified information unless the military judge de- in any manner in connection with any trial or pre- termines that such classified information would be trial proceeding involving the prosecution of such noncumulative and relevant to a legally cognizable accused, the accused must, within the time specified defense, rebuttal of the prosecution’s case, or to sen- by the military judge or, where no time is specified, tencing. If the discovery of or access to such classi- prior to arraignment of the accused, notify the trial fied information is authorized, it must be addressed counsel and the military judge in writing. in accordance with the requirements of subdivision (2) Content of Notice. Such notice must include a (h)(2). brief description of the classified information. (2) Alternatives to Full Discovery. (3) Continuing Duty to Notify. Whenever the ac- (A) Substitutions and Other Alternatives. The cused learns of additional classified information the military judge, in assessing the accused’s right to accused reasonably expects to disclose, or to cause discover or access classified information under sub- the disclosure of, at any such proceeding, the ac- division (h), may authorize the government: cused must notify trial counsel and the military

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judge in writing as soon as possible thereafter and with the case the information may be described by must include a brief description of the classified generic category, in such forms as the military judge information. may approve, rather than by identification of the (4) Limitation on Disclosure by Accused. The ac- specific information of concern to the United States. cused may not disclose, or cause the disclosure of, (D) Standard for Disclosure. Classified infor- any information known or believed to be classified mation is not subject to disclosure under subdivision in connection with a trial or pretrial proceeding (j) unless the information is relevant and necessary until: to an element of the offense or a legally cognizable (A) notice has been given under subdivision defense and is otherwise admissible in evidence. In (i); and presentencing proceedings, relevant and material classified information pertaining to the appropriate- (B) the government has been afforded a rea- ness of, or the appropriate degree of, sonable opportunity to seek a determination pursuant must be admitted only if no unclassified version of to the procedure set forth in subdivision (j). such information is available. (5) Failure to comply. If the accused fails to com- (E) Written Findings. As to each item of classi- ply with the requirements of subdivision (i), the mil- fied information, the military judge must set forth in itary judge: writing the basis for the determination. (A) may preclude disclosure of any classified (2) Alternatives to Full Disclosure. information not made the subject of notification; and (A) Motion by the Prosecution. Upon any de- (B) may prohibit the examination by the ac- termination by the military judge authorizing the dis- cused of any witness with respect to any such closure of specific classified information under the information. procedures established by subdivision (j), the trial (j) Procedure for Use of Classified Information in counsel may move that, in lieu of the disclosure of Trials and Pretrial Proceedings. such specific classified information, the military (1) Hearing on Use of Classified Information. judge order: (A) Motion for Hearing. Within the time speci- (i) the substitution for such classified infor- fied by the military judge for the filing of a motion mation of a statement admitting relevant facts that under this rule, either party may move for a hearing the specific classified information would tend to concerning the use at any proceeding of any classi- prove; fied information. Upon a request by either party, the (ii) the substitution for such classified infor- military judge must conduct such a hearing and must mation of a summary of the specific classified infor- rule prior to conducting any further proceedings. mation; or (B) Request for In Camera Hearing. Any hear- (iii) any other procedure or redaction limit- ing held pursuant to subdivision (j) (or any portion ing the disclosure of specific classified information. of such hearing specified in the request of a knowl- (B) Declaration of Damage to National Securi- edgeable United States official) must be held in ty. The trial counsel may, in connection with a mo- camera if a knowledgeable United States official tion under subdivision (j), submit to the military possessing authority to classify information submits judge a declaration signed by the head, or designee, to the military judge a declaration that a public of the executive or military department or govern- proceeding may result in the disclosure of classified ment agency concerned certifying that disclosure of information. classified information would cause identifiable dam- (C) Notice to Accused. Before the hearing, trial age to the national security of the United States and counsel must provide the accused with notice of the explaining the basis for the classification of such classified information that is at issue. Such notice information. If so requested by the trial counsel, the must identify the specific classified information at military judge must examine such declaration during issue whenever that information previously has been an in camera review. made available to the accused by the United States. (C) Hearing. The military judge must hold a When the United States has not previously made the hearing on any motion under subdivision (j). Any information available to the accused in connection such hearing must be held in camera at the request

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of a knowledgeable United States official possessing tion it expects to use to rebut the classified authority to classify information. information. (D) Standard for Use of Alternatives. The mili- (A) Continuing Duty. The military judge may tary judge must grant such a motion of the trial place the prosecution under a continuing duty to counsel if the military judge finds that the statement, disclose such rebuttal information. summary, or other procedure or redaction will pro- (B) Sanction for Failure to Comply. If the vide the accused with substantially the same ability prosecution fails to comply with its obligation under to make his or her defense as would disclosure of subdivision (j), the military judge: the specific classified information. (i) may exclude any evidence not made the (3) Sealing of Records of In Camera . If subject of a required disclosure; and at the close of an in camera hearing under subdivi- (ii) may prohibit the examination by the sion (j) (or any portion of a hearing under subdivi- prosecution of any witness with respect to such sion (j) that is held in camera), the military judge information. determines that the classified information at issue (6) Disclosure at Trial of Previous Statements by may not be disclosed or elicited at the trial or pre- a Witness. trial proceeding, the record of such in camera hear- (A) Motion for Production of Statements in ing must be sealed in accordance with R.C.M. Possession of the Prosecution. After a witness called 1103A and preserved for use in the event of an by the trial counsel has testified on direct examina- appeal. The accused may seek reconsideration of the tion, the military judge, on motion of the accused, military judge’s determination prior to or during may order production of statements of the witness in trial. the possession of the prosecution that relate to the (4) Remedies. subject matter as to which the witness has testified. (A) If the military judge determines that alter- This paragraph does not preclude discovery or asser- natives to full disclosure may not be used and the tion of a privilege otherwise authorized. prosecution continues to object to disclosure of the (B) Invocation of Privilege by the Government. information, the military judge must issue any order If the government invokes a privilege, the trial coun- that the interests of justice require, including but not sel may provide the prior statements of the witness limited to, an order: to the military judge for in camera review to the (i) striking or precluding all or part of the extent necessary to protect classified information testimony of a witness; from disclosure. (ii) declaring a mistrial; (C) Action by Military Judge. If the military (iii) finding against the government on any judge finds that disclosure of any portion of the issue as to which the evidence is relevant and mate- statement identified by the government as classified rial to the defense; would be detrimental to the national security in the degree required to warrant classification under the (iv) dismissing the charges, with or without applicable Executive Order, statute, or regulation, prejudice; or that such portion of the statement is consistent with (v) dismissing the charges or specifications the testimony of the witness, and that the disclosure or both to which the information relates. of such portion is not necessary to afford the ac- (B) The government may avoid the sanction cused a fair trial, the military judge must excise that for nondisclosure by permitting the accused to dis- portion from the statement. If the military judge close the information at the pertinent court-martial finds that such portion of the statement is inconsis- proceeding. tent with the testimony of the witness or that its (5) Disclosure of Rebuttal Information. Whenever disclosure is necessary to afford the accused a fair the military judge determines that classified informa- trial, the military judge must, upon the request of the tion may be disclosed in connection with a trial or trial counsel, consider alternatives to disclosure in pretrial proceeding, the military judge must, unless accordance with subdivision (j)(2). the interests of fairness do not so require, order the (k) Introduction into Evidence of Classified Infor- prosecution to provide the accused with the informa- mation.

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(1) Preservation of Classification . Writ- ject to the requirements of the United States Consti- ings, recordings, and photographs containing classi- tution, exclude the public during that portion of the fied information may be admitted into evidence in presentation of evidence that discloses classified court-martial proceedings under this rule without information. change in their classification status. (l) Record of Trial. If under this rule any informa- (A) Precautions. The military judge in a trial tion is withheld from the accused, the accused ob- by court-martial, in order to prevent unnecessary jects to such withholding, and the trial is continued disclosure of classified information, may order ad- to an of guilt of the accused, the entire mission into evidence of only part of a writing, unaltered text of the relevant documents as well as recording, or photograph, or may order admission the prosecution’s motion and any materials submit- into evidence of the whole writing, recording, or ted in support thereof must be sealed in accordance photograph with excision of some or all of the clas- with R.C.M. 1103A and attached to the record of sified information contained therein, unless the trial as an appellate exhibit. Such material must be whole ought in fairness be considered. made available to reviewing authorities in closed (B) Classified Information Kept Under Seal. proceedings for the purpose of reviewing the deter- The military judge must allow classified information mination of the military judge. The record of trial offered or accepted into evidence to remain under with respect to any classified matter will be prepared seal during the trial, even if such evidence is dis- under R.C.M. 1103(h) and 1104(b)(1)(D).

closed in the court-martial proceeding, and may, Discussion upon motion by the government, seal exhibits con- taining classified information in accordance with In addition to the Sixth Amendment right of an accused to a public trial, the Supreme Court has held that the press and general R.C.M. 1103A for any period after trial as necessary public have a constitutional right under the First Amendment to to prevent a disclosure of classified information access to criminal trials. United States v. Hershey, 20 M.J. 433, when a knowledgeable United States official posses- 436 (C.M.A. 1985) (citing Richmond Newspapers, Inc. v. Virgin- sing authority to classify information submits to the ia, 448 U.S. 555 (1980)). The test that must be met before closure military judge a declaration setting forth the damage 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 to the national security that the disclosure of such of openness “may be overcome by an overriding interest based on information reasonably could be expected to cause. findings that closure is essential to preserve higher values and is (2) Testimony. narrowly tailored to serve that interest. The military judge must consider reasonable alternatives to closure and must make ade- (A) Objection by Trial Counsel. During the ex- quate findings supporting the closure to aid in review. amination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose classified information not Rule 506. Government information other previously found to be admissible. than classified information (B) Action by Military Judge. Following an ob- (a) Protection of Government Information. Except jection under subdivision (k), the military judge where disclosure is required by a federal statute, must take such suitable action to determine whether government information is privileged from disclo- the response is admissible as will safeguard against sure if disclosure would be detrimental to the public the compromise of any classified information. Such interest. action may include requiring trial counsel to provide (b) Scope. “Government information” includes offi- the military judge with a of the witness’s cial communication and documents and other infor- response to the question or line of inquiry and re- mation within the custody or control of the Federal quiring the accused to provide the military judge Government. This rule does not apply to classified with a proffer of the nature of the information information (Mil. R. Evid. 505) or to the identity of sought to be elicited by the accused. Upon request, an informant (Mil. R. Evid. 507). the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect classi- (c) Definitions. As used in this rule: fied information from disclosure. (1) “In camera hearing” means a session under (3) Closed session. The military judge may, sub- Article 39(a) from which the public is excluded.

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(2) “In camera review” means an inspection of facts that the government information would tend to documents or other evidence conducted by the mili- prove; tary judge alone in chambers and not on the record. (D) provide the document subject to conditions (3) “Ex parte” means a discussion between the similar to those set forth in subdivision (g) of this military judge and either the defense counsel or rule; or prosecution, without the other party or the public (E) withhold disclosure if actions under subdi- present. This discussion can be on or off the record, visions (e)(1)(1)-(4) cannot be taken without causing depending on the circumstances. The military judge identifiable damage to the public interest. will grant a request for an ex parte discussion or (2) Any objection by the accused to withholding hearing only after finding that such discussion or of information or to the conditions of disclosure hearing is necessary to protect government informa- must be raised through a motion for appropriate re- tion or other good cause. Prior to granting a request lief at a pretrial conference. from one party for an ex parte discussion or hearing, (f) Action After Referral of Charges. the military judge must provide notice to the oppos- ing party on the record. If the ex parte discussion is (1) Pretrial Conference. At any time after referral conducted off the record, the military judge should of charges, any party may move for a pretrial con- later state on the record that such ex parte discussion ference under Article 39(a) to consider matters relat- took place and generally summarize the subject mat- ing to government information that may arise in ter of the discussion, as appropriate. connection with the trial. Following such a motion, or when the military judge recognizes the need for (d) Who May Claim the Privilege. The privilege such conference, the military judge must promptly may be claimed by the head, or designee, of the hold a pretrial conference under Article 39(a). executive or military department or government agency concerned. The privilege for records and in- (2) Ex Parte Permissible. Upon request by either formation of the Inspector General may be claimed party and with a showing of good cause, the military by the immediate superior of the inspector general judge must hold such conference ex parte to the officer responsible for creation of the records or extent necessary to protect government information information, the Inspector General, or any other su- from disclosure. perior authority. A person who may claim the privi- (3) Matters to be Established at Pretrial Confer- lege may authorize a witness or the trial counsel to ence. claim the privilege on his or her behalf. The author- (A) Timing of Subsequent Actions. At the pre- ity of a witness or the trial counsel to do so is trial conference, the military judge must establish presumed in the absence of evidence to the contrary. the timing of: (e) Action Prior to Referral of Charges. (i) requests for discovery; (1) Prior to referral of charges, upon a showing (ii) the provision of notice required by sub- by the accused that the government information division (i) of this rule; and sought is relevant and necessary to an element of the (iii) the initiation of the procedure estab- offense or a legally cognizable defense, the conven- lished by subdivision (j) of this rule. ing authority must respond in writing to a request by (B) Other Matters. At the pretrial conference, the accused for government information if the privi- the military judge may also consider any matter lege in this rule is claimed for such information. In which relates to government information or which response to such a request, the convening authority may promote a fair and expeditious trial. may: (4) Convening Authority Notice and Action. If a (A) delete specified items of government infor- claim of privilege has been made under this rule mation claimed to be privileged from documents with respect to government information that ap- made available to the accused; parently contains evidence that is relevant and nec- (B) substitute a portion or summary of the in- essary to an element of the offense or a legally formation for such documents; cognizable defense and is otherwise admissible in (C) substitute a statement admitting relevant evidence in the court-martial proceeding, the matter

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must be reported to the convening authority. The delete, withhold, or otherwise obtain other relief convening authority may: with respect to the discovery of or access to any (A) institute action to obtain the information government information subject to a claim of privi- for use by the military judge in making a determina- lege, the trial counsel must submit a declaration in- tion under subdivision (j); voking the United States’ government information (B) dismiss the charges; privilege and setting forth the detriment to the public interest that the discovery of or access to such infor- (C) dismiss the charges or specifications or mation reasonably could be expected to cause. The both to which the information relates; or declaration must be signed by a knowledgeable (D) take such other action as may be required United States official as described in subdivision (d) in the interests of justice. of this rule. (5) Remedies. If after a reasonable period of time (B) Standard for Discovery or Access by the the information is not provided to the military judge Accused. Upon the submission of a declaration in circumstances where proceeding with the case under subdivision (h)(1)(A), the military judge may without such information would materially prejudice not authorize the discovery of or access to such a substantial right of the accused, the military judge government information unless the military judge must dismiss the charges or specifications or both to determines that such government information would which the information relates. be noncumulative, relevant, and helpful to a legally (g) Protective Orders. Upon motion of the trial cognizable defense, rebuttal of the prosecution’s counsel, the military judge must issue an order to case, or to sentencing. If the discovery of or access protect against the disclosure of any government in- to such government information is authorized, it formation that has been disclosed by the United must be addressed in accordance with the require- States to any accused in any court-martial proceed- ments of subdivision (h)(2). ing or that has otherwise been provided to, or ob- (2) Alternatives to Full Disclosure. tained by, any such accused in any such court- (A) Substitutions and Other Alternatives. The martial proceeding. The terms of any such protective military judge, in assessing the accused’s right to order may include, but are not limited to, provisions: discover or access government information under (1) prohibiting the disclosure of the information subdivision (h), may authorize the government: except as authorized by the military judge; (i) to delete or withhold specified items of (2) requiring storage of the material in a manner government information; appropriate for the nature of the material to be (ii) to substitute a summary for government disclosed; information; or (3) requiring controlled access to the material (iii) to substitute a statement admitting rele- during normal business hours and at other times vant facts that the government information or mate- upon reasonable notice; rial would tend to prove, unless the military judge (4) requiring the maintenance of logs recording determines that disclosure of the government infor- access by persons authorized by the military judge mation itself is necessary to enable the accused to to have access to the government information in prepare for trial. connection with the preparation of the defense; (B) In Camera Review. The military judge (5) regulating the making and handling of notes must, upon the request of the prosecution, conduct taken from material containing government informa- an in camera review of the prosecution’s motion and tion; or any materials submitted in support thereof and must (6) requesting the convening authority to author- not disclose such information to the accused. ize the assignment of government security personnel (C) Action by Military Judge. The military and the provision of government storage facilities. judge must grant the request of the trial counsel to (h) Discovery and Access by the Accused. substitute a summary or to substitute a statement (1) Limitations. admitting relevant facts, or to provide other relief in (A) Government Claim of Privilege. In a court- accordance with subdivision (h)(2)(A), if the mili- martial proceeding in which the government seeks to tary judge finds that the summary, statement, or

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other relief would provide the accused with substan- (A) Motion for Hearing. Within the time speci- tially the same ability to make a defense as would fied by the military judge for the filing of a motion discovery of or access to the specific government under this rule, either party may move for an in information. camera hearing concerning the use at any proceeding (i) Disclosure by the Accused. of any government information that may be subject (1) Notification to Trial Counsel and Military to a claim of privilege. Upon a request by either Judge. If an accused reasonably expects to disclose, party, the military judge must conduct such a hear- or to cause the disclosure of, government informa- ing and must rule prior to conducting any further tion subject to a claim of privilege in any manner in proceedings. connection with any trial or pretrial proceeding in- (B) Request for In Camera Hearing. Any hear- volving the prosecution of such accused, the accused ing held pursuant to subdivision (j) must be held in must, within the time specified by the military judge camera if a knowledgeable United States official de- or, where no time is specified, prior to arraignment scribed in subdivision (d) of this rule submits to the of the accused, notify the trial counsel and the mili- military judge a declaration that disclosure of the tary judge in writing. information reasonably could be expected to cause (2) Content of Notice. Such notice must include a identifiable damage to the public interest. brief description of the government information. (C) Notice to Accused. Subject to subdivision (3) Continuing Duty to Notify. Whenever the ac- (j)(2) below, the prosecution must disclose govern- cused learns of additional government information ment information claimed to be privileged under this the accused reasonably expects to disclose, or to rule for the limited purpose of litigating, in camera, cause the disclosure of, at any such proceeding, the the admissibility of the information at trial. The mil- accused must notify trial counsel and the military itary judge must enter an appropriate protective or- judge in writing as soon as possible thereafter and der to the accused and all other appropriate trial must include a brief description of the government participants concerning the disclosure of the infor- information. mation according to subdivision (g), above. The ac- cused may not disclose any information provided (4) Limitation on Disclosure by Accused. The ac- under subdivision (j) unless, and until, such informa- cused may not disclose, or cause the disclosure of, tion has been admitted into evidence by the military any information known or believed to be subject to a judge. In the in camera hearing, both parties may claim of privilege in connection with a trial or pre- have the opportunity to brief and argue the admissi- trial proceeding until: bility of the government information at trial. (A) notice has been given under subdivision (D) Standard for Disclosure. Government in- (i); and formation is subject to disclosure at the court-martial (B) the government has been afforded a rea- proceeding under subdivision (j) if the party making sonable opportunity to seek a determination pursuant the request demonstrates a specific need for informa- to the procedure set forth in subdivision (j). tion containing evidence that is relevant to the guilt (5) Failure to Comply. If the accused fails to or innocence or to punishment of the accused, and is comply with the requirements of subdivision (i), the otherwise admissible in the court-martial proceeding. military judge: (E) Written Findings. As to each item of gov- (A) may preclude disclosure of any govern- ernment information, the military judge must set ment information not made the subject of notifica- forth in writing the basis for the determination. tion; and (2) Alternatives to Full Disclosure. (B) may prohibit the examination by the ac- (A) Motion by the Prosecution. Upon any de- cused of any witness with respect to any such termination by the military judge authorizing disclo- information. sure of specific government information under the (j) Procedure for Use of Government Information procedures established by subdivision (j), the prose- Subject to a Claim of Privilege in Trials and Pre- cution may move that, in lieu of the disclosure of trial Proceedings. such information, the military judge order: (1) Hearing on Use of Government Information. (i) the substitution for such government in-

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formation of a statement admitting relevant facts that (v) dismissing the charges or specifications the specific government information would tend to or both to which the information relates. prove; (B) The government may avoid the sanction (ii) the substitution for such government in- for nondisclosure by permitting the accused to dis- formation of a summary of the specific government close the information at the pertinent court-martial information; or proceeding. (iii) any other procedure or redaction limit- (5) Disclosure of Rebuttal Information. Whenever ing the d i s c l o s u r e of s p e c i f i c g o v e r n me n t the military judge determines that government infor- information. mation may be disclosed in connection with a trial or pretrial proceeding, the military judge must, un- (B) Hearing. The military judge must hold a less the interests of fairness do not so require, order hearing on any motion under subdivision (j). At the the prosecution to provide the accused with the in- request of the trial counsel, the military judge will formation it expects to use to rebut the government conduct an in camera hearing. information. (C) Standard for Use of Alternatives. The mili- (A) Continuing Duty. The military judge may tary judge must grant such a motion of the trial place the prosecution under a continuing duty to counsel if the military judge finds that the statement, disclose such rebuttal information. summary, or other procedure or redaction will pro- (B) Sanction for Failure to Comply. If the vide the accused with substantially the same ability prosecution fails to comply with its obligation under to make his or her defense as would disclosure of subdivision (j), the military judge may make such the specific government information. ruling as the interests of justice require, to include: (3) Sealing of Records of In Camera Hearings. If (i) excluding any evidence not made the sub- at the close of an in camera hearing under subdivi- ject of a required disclosure; and sion (j) (or any portion of a hearing under subdivi- (ii) prohibiting the examination by the prose- sion (j) that is held in camera), the military judge cution of any witness with respect to such determines that the government information at issue information. may not be disclosed or elicited at the trial or pre- (k) of Orders and Rulings. In a court-mar- trial proceeding, the record of such in camera hear- tial in which a punitive may be adjudged, ing must be sealed in accordance with R.C.M. the government may appeal an order or ruling of the 1103A and preserved for use in the event of an military judge that terminates the proceedings with appeal. The accused may seek reconsideration of the respect to a charge or specification, directs the dis- military judge’s determination prior to or during closure of government information, or imposes sanc- trial. tions for nondisclosure of government information. (4) Remedies. The government may also appeal an order or ruling (A) If the military judge determines that alter- in which the military judge refuses to issue a protec- natives to full disclosure may not be used and the tive order sought by the United States to prevent the prosecution continues to object to disclosure of the disclosure of government information, or to enforce information, the military judge must issue any order such an order previously issued by appropriate au- that the interests of justice require, including but not thority. The government may not appeal an order or limited to, an order: ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification. (i) striking or precluding all or part of the testimony of a witness; (l) Introduction into Evidence of Government Infor- mation Subject to a Claim of Privilege. (ii) declaring a mistrial; (1) Precautions. The military judge in a trial by (iii) finding against the government on any court-martial, in order to prevent unnecessary disclo- issue as to which the evidence is relevant and neces- sure of government information after there has been sary to the defense; a claim of privilege under this rule, may order ad- (iv) dismissing the charges, with or without mission into evidence of only part of a writing, prejudice; or recording, or photograph or admit into evidence the

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whole writing, recording, or photograph with exci- made available to reviewing authorities in closed sion of some or all of the government information proceedings for the purpose of reviewing the deter- contained therein, unless the whole ought in fairness mination of the military judge. to be considered. (2) Government Information Kept Under Seal. Rule 507. Identity of informants The military judge must allow government informa- (a) General Rule. The United States or a State or tion offered or accepted into evidence to remain subdivision thereof has a privilege to refuse to dis- under seal during the trial, even if such evidence is close the identity of an informant. Unless otherwise disclosed in the court-martial proceeding, and may, privileged under these rules, the communications of upon motion by the prosecution, seal exhibits con- an informant are not privileged except to the extent taining government information in accordance with necessary to prevent the disclosure of the inform- R.C.M. 1103A for any period after trial as necessary ant’s identity. to prevent a disclosure of government information (b) Definitions. As used in this rule: when a knowledgeable United States official de- (1) “Informant” means a person who has fur- scribed in subdivision (d) submits to the military nished information relating to or assisting in an in- judge a declaration setting forth the detriment to the vestigation of a possible violation of law to a person public interest that the disclosure of such informa- whose official duties include the discovery, investi- tion reasonably could be expected to cause. gation, or prosecution of crime. (3) Testimony. (2) “In camera review” means an inspection of (A) Objection by Trial Counsel. During exami- documents or other evidence conducted by the mili- nation of a witness, trial counsel may object to any tary judge alone in chambers and not on the record. question or line of inquiry that may require the wit- (c) Who May Claim the Privilege. The privilege ness to disclose government information not may be claimed by an appropriate representative of previously found admissible if such information has the United States, regardless of whether information been or is reasonably likely to be the subject of a was furnished to an officer of the United States or a claim of privilege under this rule. State or subdivision thereof. The privilege may be (B) Action by Military Judge. Following such claimed by an appropriate representative of a State an objection, the military judge must take such suita- or subdivision if the information was furnished to an ble action to determine whether the response is ad- officer thereof, except the privilege will not be al- missible as will safeguard against the compromise of lowed if the prosecution objects. any government information. Such action may in- (d) Exceptions. clude requiring trial counsel to provide the military (1) Voluntary Disclosures; Informant as a Prose- judge with a proffer of the witness’s response to the cution Witness. No privilege exists under this rule: question or line of inquiry and requiring the accused (A) if the identity of the informant has been to provide the military judge with a proffer of the disclosed to those who would have cause to resent nature of the information sought to be elicited by the the communication by a holder of the privilege or by accused. Upon request, the military judge may ac- the informant’s own action; or cept an ex parte proffer by trial counsel to the extent (B) if the informant appears as a witness for necessary to protect government information from the prosecution. disclosure. (2) Informant as a Defense Witness. If a claim of (m) Record of Trial. If under this rule any informa- privilege has been made under this rule, the military tion is withheld from the accused, the accused ob- judge must, upon motion by the accused, determine jects to such withholding, and the trial is continued whether disclosure of the identity of the informant is to an adjudication of guilt of the accused, the entire necessary to the accused’s defense on the issue of unaltered text of the relevant documents as well as guilt or innocence. Whether such a necessity exists the prosecution’s motion and any materials submit- will depend on the particular circumstances of each ted in support thereof must be sealed in accordance case, taking into consideration the offense charged, with R.C.M. 1103A and attached to the record of the possible defense, the possible significance of the trial as an appellate exhibit. Such material must be informant’s testimony, and other relevant factors. If

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it appears from the evidence in the case or from conducted by secret ballot unless the vote was cast other showing by a party that an informant may be illegally. able to give testimony necessary to the accused’s defense on the issue of guilt or innocence, the mili- Rule 509. Deliberations of courts and tary judge may make any order required by the in- Except as provided in Mil. R. Evid. 606, the de- terests of justice. liberations of courts, courts-martial, military , (3) Informant as a Witness regarding a Motion to and grand and petit juries are privileged to the extent Suppress Evidence. If a claim of privilege has been that such matters are privileged in trial of criminal made under this rule with respect to a motion under cases in the United States district courts, but the Mil. R. Evid. 311, the military judge must, upon results of the deliberations are not privileged. 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 Rule 510. Waiver of privilege by voluntary the Armed Forces. In making this determination, the disclosure military judge may make any order required by the (a) A person upon whom these rules confer a privi- interests of justice. lege against disclosure of a confidential matter or (e) Procedures. communication waives the privilege if the person or (1) In Camera Review. If the accused has articu- the person’s predecessor while holder of the privi- lated a basis for disclosure under the standards set lege voluntarily discloses or consents to disclosure forth in this rule, the prosecution may ask the mili- of any significant part of the matter or communica- tary judge to conduct an in camera review of affida- tion under such circumstances that it would be inap- vits or other evidence relevant to disclosure. propriate to allow the claim of privilege. This rule (2) Order by the Military Judge. If a claim of does not apply if the disclosure is itself a privileged privilege has been made under this rule, the military communication. judge may make any order required by the interests (b) Unless testifying voluntarily concerning a privi- of justice. leged matter or communication, an accused who tes- (3) Action by the Convening Authority. If the mil- tifies in his or her own behalf or a person who itary judge determines that disclosure of the identity testifies under a grant or promise of immunity does of the informant is required under the standards set not, merely by reason of testifying, waive a privilege forth in this rule, and the prosecution elects not to to which he or she may be entitled pertaining to the disclose the identity of the informant, the matter confidential matter or communication. must be reported to the convening authority. The convening authority may institute action to secure Rule 511. Privileged matter disclosed under disclosure of the identity of the informant, terminate the proceedings, or take such other action as may be compulsion or without opportunity to claim appropriate under the circumstances. privilege (4) Remedies. If, after a reasonable period of time (a) General Rule. Evidence of a statement or other disclosure is not made, the military judge, sua disclosure of privileged matter is not admissible sponte or upon motion of either counsel and after a against the holder of the privilege if disclosure was hearing if requested by either party, may dismiss the compelled erroneously or was made without an op- charge or specifications or both to which the infor- portunity for the holder of the privilege to claim the mation regarding the informant would relate if the privilege. military judge determines that further proceedings (b) Use of Communications Media. The telephonic would materially prejudice a substantial right of the transmission of information otherwise privileged accused. under these rules does not affect its privileged char- acter. Use of electronic means of communication Rule 508. Political vote other than the telephone for transmission of informa- A person has a privilege to refuse to disclose the tion otherwise privileged under these rules does not tenor of the person’s vote at a political election affect the privileged character of such information if

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use of such means of communication is necessary cal psychologist, clinical social worker, or other and in furtherance of the communication. mental health professional who is licensed in any State, territory, possession, the District of Columbia, Rule 512. Comment upon or inference from or Puerto Rico to perform professional services as claim of privilege; instruction such, or who holds credentials to provide such serv- (a) Comment or Inference Not Permitted. ices as such, or who holds credentials to provide such services from any military health care facility, (1) The claim of a privilege by the accused or is a person reasonably believed by the patient to whether in the present proceeding or upon a prior have such license or credentials. occasion is not a proper subject of comment by the military judge or counsel for any party. No inference (3) “Assistant to a psychotherapist” means a per- may be drawn therefrom. s o n d i r e c t e d b y o r a s s i g n e d t o a s s i s t a psychotherapist in providing professional services, (2) The claim of a privilege by a person other or is reasonably believed by the patient to be such. than the accused whether in the present proceeding or upon a prior occasion normally is not a proper (4) A communication is “confidential” if not in- subject of comment by the military judge or counsel tended to be disclosed to third persons other than for any party. An adverse inference may not be those to whom disclosure is in furtherance of the drawn there from except when determined by the rendition of professional services to the patient or military judge to be required by the interests of those reasonably necessary for such transmission of justice. the communication. (b) Claiming a Privilege Without the Knowledge of (5) “Evidence of a patient’s records or communi- the Members. In a trial before a court-martial with cations” means testimony of a psychotherapist, or members, proceedings must be conducted, to the ex- assistant to the same, or patient records that pertain tent practicable, so as to facilitate the making of to communications by a patient to a psychotherapist, claims of privilege without the knowledge of the or assistant to the same, for the purposes of diagno- members. Subdivision (b) does not apply to a special sis or treatment of the patient’s mental or emotional court-martial without a military judge. condition. (c) Instruction. Upon request, any party against (c) Who May Claim the Privilege. The privilege whom the members might draw an adverse inference may be claimed by the patient or the guardian or from a claim of privilege is entitled to an instruction conservator of the patient. A person who may claim that no inference may be drawn there from except as the privilege may authorize trial counsel or defense provided in subdivision (a)(2). counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psycho- Rule 513. Psychotherapist—patient privilege therapist who received the communication may (a) General Rule. A patient has a privilege to refuse claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardi- to disclose and to prevent any other person from an, or conservator to so assert the privilege is pre- disclosing a confidential communication made be- sumed in the absence of evidence to the contrary. tween the patient and a psychotherapist or an assist- ant to the psychotherapist, in a case arising under (d) Exceptions. There is no privilege under this rule: the Uniform Code of Military Justice, if such com- (1) when the patient is dead; munication was made for the purpose of facilitating (2) when the communication is evidence of child diagnosis or treatment of the patient’s mental or abuse or of neglect, or in a proceeding in which one emotional condition. spouse is charged with a crime against a child of (b) Definitions. As used in this rule: either spouse; (1) “Patient” means a person who consults with (3) when federal law, state law, or service regula- or is examined or interviewed by a psychotherapist tion imposes a duty to report information contained for purposes of advice, diagnosis, or treatment of a in a communication; mental or emotional condition. (4) when a psychotherapist or assistant to a (2) “Psychotherapist” means a psychiatrist, clini- psychotherapist believes that a patient’s mental or

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emotional condition makes the patient a danger to sel, including Special Victims’ Counsel under any person, including the patient; section 1044e of title 10, United States Code. In a (5) if the communication clearly contemplated the case before a court-martial comprised of a military future commission of a fraud or crime or if the judge and members, the military judge must services of the psychotherapist are sought or ob- conduct the hear- ing outside the presence of the tained to enable or aid anyone to commit or plan to members. commit what the patient knew or reasonably should (3) The military judge may examine the evidence have known to be a crime or fraud; or a proffer thereof in camera, if such examination is (6) when necessary to ensure the safety and secu- necessary to rule on the production or admissibility rity of military personnel, military dependents, mili- of protected records or communications. Prior to tary property, classified information, or the conducting an in camera review, the military judge accomplishment of a military mission; must find by a preponderance of the evidence that (7) when an accused offers statements or other the moving party showed: evidence concerning his mental condition in defense, (A) a specific factual basis demonstrating a extenuation, or mitigation, under circumstances not reasonable likelihood that the records or communi- covered by R.C.M. 706 or Mil. R. Evid. 302. In cations would yield evidence admissible under an such situations, the military judge may, upon mo- exception to the privilege; tion, order disclosure of any statement made by the (B) that the requested information meets one of accused to a psychotherapist as may be necessary in the enumerated exceptions under subsection (d) of the interests of justice; or this rule; (e) Procedure to Determine Admissibility of Patient (C) that the information sought is not merely Records or Communications. cumulative of other information available; and (1) In any case in which the production or admis- (D) that the party made reasonable efforts to sion of records or communications of a patient other obtain the same or substantially similar information than the accused is a matter in dispute, a party may through non-privileged sources. seek an interlocutory ruling by the military judge. In (4) Any production or disclosure permitted by the order to obtain such a ruling, the party must: military judge under this rule must be narrowly tai- (A) file a written motion at least 5 days prior lored to only the specific records or communica- to entry of pleas specifically describing the evidence t i o n s , o r p o r t i o n s o f s u c h r e c o r d s o r and stating the purpose for which it is sought or communications, that meet the requirements for one offered, or objected to, unless the military judge, for of the enumerated exceptions to the privilege under good cause shown, requires a different time for fil- subsection (d) of this Rule and are included in the ing or permits filing during trial; and stated purpose for which the records or (B) serve the motion on the opposing party, the communications are sought under subsection military judge and, if practical, notify the patient or (e)(1)(A) of this Rule. the patient’s guardian, conservator, or representative (5) To prevent unnecessary disclosure of evi- dence that the motion has been filed and that the patient of a patient’s records or communications, the military has an opportunity to be heard as set forth in subdi- judge may issue protective orders or may admit only portions of the evidence. vision (e)(2). (6) The motion, related papers, and the record of the (2) Before ordering the production or admission hearing must be sealed in accordance with of evidence of a patient’s records or communication, R.C.M. 1103A and must remain under seal unless the the military judge must conduct a hearing, which military judge or an appellate court orders otherwise. shall be closed. At the hearing, the parties may call witnesses, including the patient, and offer other rele- Rule 514. Victim advocate-victim and vant evidence. The patient must be afforded a rea- Department of Defense Safe Helpline staff- sonable opportunity to attend the hearing and be victim privilege. heard. However, the hearing may not be unduly de- (a) General Rule. A victim has a privilege to refuse layed for this purpose. The right to be heard under to disclose and to prevent any other person from this rule includes the right to be heard through coun- disclosing a confidential communication made be-

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tween the alleged victim and a victim advocate or ing the victim to so assert the privilege is presumed between the alleged victim and Department of De- in the absence of evidence to the contrary. fense Safe Helpline staff, in a case arising under the (d) Exceptions. There is no privilege under this rule: UCMJ, if such communication was made for the (1) when the victim is dead; purpose of facilitating advice or assistance to the (2) When federal law, state law, Department of alleged victim. Defense regulation, or service regulation imposes a (b) Definitions. As used in this rule: duty to r ep o r t i n f o r ma t i o n co n ta i ned in a (1) “Victim” means any person who is alleged to communication; have suffered direct physical or emotional harm as (3) When a victim advocate or Department of De- the result of a sexual or violent offense. fense Safe Helpline staff believes that a victim’s (2) “Victim advocate” means a person who: mental or emotional condition makes the victim a (A) is designated in writing as a victim advo- danger to any person, including the victim; cate in accordance with service regulation; (4) If the communication clearly contemplated (B) is authorized to perform victim advocate the future commission of a fraud or crime, or if the duties in accordance with service regulation and is services of the victim advocate or Department of acting in the performance of those duties; or Defense Safe Helpline staff are sought or obtained to enable or aid anyone to commit or plan to commit (C) is certified as a victim advocate pursuant to what the victim knew or reasonably should have federal or state requirements. known to be a crime or fraud; (3) “Department of Defense Safe Helpline staff” (5) when necessary to ensure the safety and secu- are persons who are designated by competent rity of military personnel, military dependents, mili- authority in writing as Department of Defense Safe tary property, classified information, or the Helpline staff. accomplishment of a military mission; or (4) A communication is “confidential” if made in (6) when admission or disclosure of a communi- the course of the victim advocate-victim relationship cation is constitutionally required. or Department of Defense Safe Helpline staff-victim (e) Procedure to Determine Admissibility of Victim relationship and not intended to be disclosed to third Records or Communications. persons other than those to whom disclosure is made in furtherance of the rendition of advice or assist- (1) In any case in which the production or admis- ance to the alleged victim or those reasonably neces- sion of records or communications of a victim is a matter in dispute, a party may seek an interlocutory sary for such transmission of the communication. ruling by the military judge. In order to obtain such (5) “Evidence of a victim’s records or communi- a ruling, the party must: cations” means testimony of a victim advocate or (A) file a written motion at least 5 days prior Department of Defense Safe Helpline staff, or re- to entry of pleas specifically describing the evidence cords that pertain to communications by a victim to and stating the purpose for which it is sought or a victim advocate or Department of Defense Safe offered, or objected to, unless the military judge, for Helpline staff, for the purposes of advising or pro- good cause shown, requires a different time for fil- viding assistance to the victim. ing or permits filing during trial; and (c) Who May Claim the Privilege. The privilege (B) serve the motion on the opposing party, the may be claimed by the victim or the guardian or military judge and, if practicable, notify the victim conservator of the victim. A person who may claim or the victim’s guardian, conservator, or representa- the privilege may authorize trial counsel or a coun- tive that the motion has been filed and that the sel representing the victim to claim the privilege on victim has an opportunity to be heard as set forth in his or her behalf. The victim advocate or Depart- subdivision (e)(2). ment of Defense Safe Helpline staff who received (2) Before ordering the production or admission the communication may claim the privilege on be- of evidence of a victim’s records or communication, half of the victim. The authority of such a victim the military judge must conduct a hearing, which advocate, Department of Defense Safe Helpline shall be closed. At the hearing, the parties may call staff, guardian, conservator, or a counsel represent- witnesses, including the victim, and offer other rele-

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vant evidence. The victim must be afforded a rea- SECTION VI sonable opportunity to attend the hearing and be heard. WITNESSES However, the hearing may not be unduly de- layed for this purpose. The right to be heard under this rule includes the right to be heard through coun- sel, Rule 601. Competency to testify in general including Special Victims’ Counsel under section 1044e Every person is competent to be a witness unless of title 10, United States Code. In a case before a these rules provide otherwise. court-martial composed of a military judge and members, the military judge must conduct the hear- ing Rule 602. Need for personal knowledge outside the presence of the members. A witness may testify to a matter only if evidence (3) The military judge may examine the is introduced sufficient to support a finding that the evidence, or a proffer thereof, in camera if such witness has personal knowledge of the matter. Evi- examination is necessary to rule on the production dence to prove personal knowledge may consist of or admissibility of protected records or the witness’s own testimony. This rule does not ap- communications. Prior to conducting an in camera ply to a witness’s expert testimony under Mil. R. review, the military judge must find by a preponderance of the evidence that the moving Evid. 703. party showed: (A) a specific factual basis demonstrating a Rule 603. Oath or affirmation to testify reasonable likelihood that the records or communi- truthfully cations would yield evidence admissible under an Before testifying, a witness must give an oath or exception to the privilege; affirmation to testify truthfully. It must be in a form (B) that the requested information meets one of designed to impress that duty on the witness’s the enumerated exceptions under subsection (d) of conscience. this rule; (C) that the information sought is not merely Rule 604. Interpreter cumulative of other information available; and An interpreter must be qualified and must give an (D) that the party made reasonable efforts to oath or affirmation to make a true translation. obtain the same or substantially similar information through non-privileged sources. Rule 605. Military judge’s competency as a (4) Any production or disclosure permitted by the witness military judge under this rule must be narrowly tai- (a) The presiding military judge may not testify as a lored to only the specific records or communica witness at any proceeding of that court-martial. A –tions, or portions of such records or party need not object to preserve the issue. communications, that meet the requirements for one (b) This rule does not preclude the military judge of the enumerated exceptions to the privilege under from placing on the record matters concerning do- subsection (d) above and are included in the stated cketing of the case. purpose for which the records or communications are sought under subsection (e)(1)(A) above. Rule 606. Member’s competency as a (5) To prevent unnecessary disclosure of evi- witness dence of a victim’s records or communications, the military judge may issue protective orders or may (a) At the Trial by Court-Martial. A member of a admit only portions of the evidence. court-martial may not testify as a witness before the other members at any proceeding of that court-mar- (6) The motion, related papers, and the record of tial. If a member is called to testify, the military the hearing must be sealed in accordance with judge must – except in a special court-martial with- R.C.M. 1103A and must remain under seal unless out a military judge – give the opposing party an the military judge or an appellate court orders opportunity to object outside the presence of the otherwise. members.

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(b) During an Inquiry into the Validity of a Finding privilege against self-incrimination for testimony or . that relates only to the witness’s character for (1) Prohibited Testimony or Other Evidence. Dur- truthfulness. ing an inquiry into the validity of a finding or sen- (c) Evidence of Bias. Bias, prejudice, or any motive tence, a member of a court-martial may not testify to misrepresent may be shown to impeach the wit- about any statement made or incident that occurred ness either by examination of the witness or by during the deliberations of that court-martial; the evidence otherwise adduced. effect of anything on that member’s or another member’s vote; or any member’s mental processes Rule 609. Impeachment by evidence of a concerning the finding or sentence. The military criminal judge may not receive a member’s affidavit or evi- (a) In General. The following rules apply to attack- dence of a member’s statement on these matters. ing a witness’s character for truthfulness by evi- (2) Exceptions. A member may testify about dence of a criminal conviction: whether: (1) For a crime that, in the convicting jurisdic- (A) extraneous prejudicial information was im- tion, was punishable by death, dishonorable dis- properly brought to the members’ attention; charge, or by for more than one year, (B) unlawful command influence or any other the evidence: outside influence was improperly brought to bear on (A) must be admitted, subject to Mil. R. Evid. any member; or 403, in a court-martial in which the witness is not (C) a mistake was made in entering the finding the accused; and or sentence on the finding or sentence forms. (B) must be admitted in a court-martial in which the witness is the accused, if the probative Rule 607. Who may impeach a witness value of the evidence outweighs its prejudicial effect Any party, including the party that called the wit- to that accused; and ness, may attack the witness’s credibility. (2) For any crime regardless of the punishment, the evidence must be admitted if the court can read- Rule 608. A witness’s character for ily determine that establishing the elements of the truthfulness or untruthfulness crime required proving – or the witness’s admitting – a dishonest act or false statement. (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testi- (3) In determining whether a crime tried by court- mony about the witness’s reputation for having a martial was punishable by death, dishonorable dis- character for truthfulness or untruthfulness, or by charge, or imprisonment in excess of one year, the testimony in the form of an opinion about that char- maximum punishment prescribed by the President acter. Evidence of truthful character is admissible under Article 56 at the time of the conviction applies only after the witness’s character for truthfulness has without regard to whether the case was tried by been attacked. general, special, or summary court-martial. (b) Specific Instances of Conduct. Except for a (b) Limit on Using the Evidence After 10 Years. criminal conviction under Mil. R. Evid. 609, extrin- Subdivision (b) applies if more than 10 years have sic evidence is not admissible to prove specific in- passed since the witness’s conviction or release from stances of a witness’s conduct in order to attack or confinement for it, whichever is later. Evidence of support the witness’s character for truthfulness. The the conviction is admissible only if: military judge may, on cross-examination, allow (1) its probative value, supported by specific facts them to be inquired into if they are probative of the and circumstances, substantially outweighs its preju- character for truthfulness or untruthfulness of: dicial effect; and (1) the witness; or (2) the proponent gives an adverse party reasona- (2) another witness whose character the witness ble written notice of the intent to use it so that the being cross-examined has testified about. By testify- party has a fair opportunity to contest its use. ing on another matter, a witness does not waive any (c) Effect of a , Annulment, or Certificate of

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Rehabilitation. Evidence of a conviction is not ad- (3) protect witnesses from harassment or undue missible if: embarrassment. (1) the conviction has been the subject of a par- (b) Scope of Cross-Examination. Cross-examination don, annulment, certificate of rehabilitation, or other should not go beyond the subject matter of the direct equivalent procedure based on a finding that the examination and matters affecting the witness’s person has been rehabilitated, and the person has not credibility. The military judge may allow inquiry been convicted of a later crime punishable by death, into additional matters as if on direct examination. dishonorable discharge, or imprisonment for more (c) Leading Questions. Leading questions should than one year; or not be used on direct examination except as neces- sary to develop the witness’s testimony. Ordinarily, (2) the conviction has been the subject of a par- the military judge should allow leading questions: don, annulment, or other equivalent procedure based on a finding of innocence. (1) on cross-examination; and (d) Juvenile . Evidence of a juvenile (2) when a party calls a or a wit- ness identified with an adverse party. adjudication is admissible under this rule only if: (d) Remote live testimony of a child. (1) the adjudication was of a witness other than the accused; (1) In a case involving domestic violence or the abuse of a child, the military judge must, subject to (2) an adult’s conviction for that offense would the requirements of subdivision (d)(3) of this rule, be admissible to attack the adult’s credibility; and allow a child victim or witness to testify from an (3) admitting the evidence is necessary to fairly area outside the courtroom as prescribed in R.C.M. determine guilt or innocence. 914A. (e) Pendency of an Appeal. A conviction that (2) Definitions. As used in this rule: satisfies this rule is admissible even if an appeal is (A) “Child” means a person who is under the pending, except that a conviction by summary court- age of 16 at the time of his or her testimony. martial or special court-martial without a military (B) “Abuse of a child” means the physical or judge may not be used for purposes of impeachment mental injury, sexual abuse or exploitation, or negli- until review has been completed under Article 64 or gent treatment of a child. Article 66, if applicable. Evidence of the pendency (C) “Exploitation” means child pornography or is also admissible. child prostitution. (f) Definition. For purposes of this rule, there is a (D) “Negligent treatment” means the failure to “conviction” in a court-martial case when a sentence provide, for reasons other than poverty, adequate has been adjudged. food, clothing, shelter, or medical care so as to en- danger seriously the physical health of the child. Rule 610. Religious beliefs or opinions (E) “Domestic violence” means an offense that Evidence of a witness’s religious beliefs or opin- has as an element the use, or attempted or threatened ions is not admissible to attack or support the wit- use of physical force against a person by a current ness’s credibility. 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 Rule 611. Mode and order of examining cohabited with the victim as a spouse, parent, or witnesses and presenting evidence guardian; or by a person similarly situated to a (a) Control by the Military Judge; Purposes. The spouse, parent, or guardian of the victim. military judge should exercise reasonable control (3) Remote live testimony will be used only over the mode and order of examining witnesses and where the military judge makes the following three presenting evidence so as to: findings on the record: (1) make those procedures effective for determin- (A) that it is necessary to protect the welfare of ing the truth; the particular child witness; (2) avoid wasting time; and ( B ) t h a t t h e ch i l d wi tn e s s wo u l d b e

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traumatized, not by the courtroom generally, but by Rule 613. Witness’s prior statement the presence of the ; and (a) Showing or Disclosing the Statement During Ex- (C) that the emotional distress suffered by the amination. When examining a witness about the wit- child witness in the presence of the defendant is ness’s prior statement, a party need not show it or more than de minimis. disclose its contents to the witness. The party must, (4) Remote live testimony of a child will not be on request, show it or disclose its contents to an used when the accused elects to absent himself from adverse party’s attorney. the courtroom in accordance with R.C.M. 804(d). (b) Extrinsic Evidence of a Prior Inconsistent State- (5) In making a determination under subdivision ment. Extrinsic evidence of a witness’s prior incon- (d)(3), the military judge may question the child in sistent statement is admissible only if the witness is chambers, or at some comfortable place other than given an opportunity to explain or deny the state- the courtroom, on the record for a reasonable period ment and an adverse party is given an opportunity to of time, in the presence of the child, a representative examine the witness about it, or if justice so re- of the prosecution, a representative of the defense, quires. Subdivision (b) does not apply to an oppos- and the child’s attorney or guardian ad litem. ing party’s statement under Mil R. Evid. 801(d)(2).

Rule 612. Writing used to refresh a witness’s Rule 614. Court-martial’s calling or memory examining a witness (a) Scope. This rule gives an adverse party certain (a) Calling. The military judge may – sua sponte or options when a witness uses a writing to refresh at the request of the members or the suggestion of a memory: party – call a witness. Each party is entitled to cross- examine the witness. When the members wish to (1) while testifying; or call or recall a witness, the military judge must de- (2) before testifying, if the military judge decides termine whether the testimony would be relevant that justice requires the party to have those options. and not barred by any rule or provision of this (b) Adverse Party’s Options; Deleting Unrelated Manual. Matter. An adverse party is entitled to have the (b) Examining. The military judge or members may writing produced at the hearing, to inspect it, to examine a witness regardless of who calls the wit- cross-examine the witness about it, and to introduce ness. Members must submit their questions to the in evidence any portion that relates to the witness’s military judge in writing. Following the opportunity testimony. If the producing party claims that the for review by both parties, the military judge must writing includes unrelated or privileged matter, the rule on the propriety of the questions, and ask the military judge must examine the writing in camera, questions in an acceptable form on behalf of the delete any unrelated or privileged portion, and order members. When the military judge or the members that the rest be delivered to the adverse party. Any call a witness who has not previously testified, the portion deleted over objection must be preserved for military judge may conduct the direct examination the record. or may assign the responsibility to counsel for any (c) Failure to Produce or Deliver the Writing. If a party. writing is not produced or is not delivered as or- (c) Objections. Objections to the calling of wit- dered, the military judge may issue any appropriate nesses by the military judge or the members or to order. If the prosecution does not comply, the mili- the interrogation by the military judge or the mem- tary judge must strike the witness’s testimony or – if bers may be made at the time or at the next availa- justice so requires – declare a mistrial. ble opportunity when the members are not present. (d) No Effect on Other Disclosure Requirements. This rule does not preclude disclosure of information Rule 615. Excluding witnesses required to be disclosed under other provisions of At a party’s request, the military judge must order these rules or this Manual. witnesses excluded so that they cannot hear other witnesses’ testimony, or the military judge may do

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so sua sponte. This rule does not authorize Rule 703. Bases of an expert’s opinion excluding: testimony (a) the accused; An expert may base an opinion on facts or data in (b) a member of an Armed service or an employee the case that the expert has been made aware of or of the United States after being designated as a rep- personally observed. If experts in the particular field resentative of the United States by the trial counsel; would reasonably rely on those kinds of facts or data (c) a person whose presence a party shows to be in forming an opinion on the subject, they need not essential to presenting the party’s case; be admissible for the opinion to be admitted. If the facts or data would otherwise be inadmissible, the (d) a person authorized by statute to be present; or proponent of the opinion may disclose them to the (e) A victim of an offense from the trial of an ac- members of a court-martial only if the military judge cused for that offense, unless the military judge, finds that their probative value in helping the mem- after receiving clear and convincing evidence, deter- bers evaluate the opinion substantially outweighs mines that testimony by the victim would be materi- their prejudicial effect. ally altered if the victim heard other testimony at that hearing or proceeding. Rule 704. Opinion on an

SECTION VII An opinion is not objectionable just because it embraces an ultimate issue. OPINIONS AND EXPERT TESTIMONY

Rule 705. Disclosing the facts or data Rule 701. Opinion testimony by lay underlying an expert’s opinion witnesses Unless the military judge orders otherwise, an ex- If a witness is not testifying as an expert, testi- pert may state an opinion – and give the reasons for mony in the form of an opinion is limited to one that it – without first testifying to the underlying facts or is: data. The expert may be required to disclose those (a) rationally based on the witness’s ; facts or data on cross-examination. (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and Rule 706. Court-appointed expert witnesses (c) not based on scientific, technical, or other spe- (a) Appointment Process. The trial counsel, the de- cialized knowledge within the scope of Mil. R. Evid. fense counsel, and the court-martial have equal op- 702. portunity to obtain expert witnesses under Article 46 and R.C.M. 703. Rule 702. Testimony by expert witnesses (b) Compensation. The compensation of expert wit- A witness who is qualified as an expert by knowl- nesses is governed by R.C.M. 703. edge, skill, experience, training, or education may (c) Accused’s Choice of Experts. This rule does not testify in the form of an opinion or otherwise if: limit an accused in calling any expert at the ac- (a) the expert’s scientific, technical, or other spe- cused’s own expense. cialized knowledge will help the trier of fact to un- derstand the evidence or to determine a fact in issue; Rule 707. Polygraph examinations (b) the testimony is based on sufficient facts or (a) Prohibitions. Notwithstanding any other provi- data; sion of law, the result of a polygraph examination, (c) the testimony is the product of reliable principles the polygraph examiner’s opinion, or any reference and methods; and to an offer to take, failure to take, or taking of a (d) the expert has reliably applied the principles and polygraph examination is not admissible. methods to the facts of the case. (b) Statements Made During a Polygraph Examina- tion. This rule does not prohibit admission of an

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otherwise admissible statement made during a poly- itself establish the declarant’s authority under (C); graph examination. the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in SECTION VIII it under (E). HEARSAY Rule 802. The rule against hearsay Rule 801. Definitions that apply to this Hearsay is not admissible unless any of the fol- section; exclusions from hearsay lowing provides otherwise: (a) Statement. “Statement” means a person’s oral (a) a federal statute applicable in trial by courts- assertion, written assertion, or nonverbal conduct, if martial; or the person intended it as an assertion. (b) these rules. (b) Declarant. “Declarant” means the person who made the statement. Rule 803. Exceptions to the rule against (c) Hearsay. “Hearsay” means a statement that: hearsay – regardless of whether the declarant is available as a witness (1) the declarant does not make while testifying at the current trial or hearing; and The following are not excluded by the rule against hearsay, regardless of whether the declarant is avail- (2) a party offers in evidence to prove the truth of able as a witness: the matter asserted in the statement. (1) Present Impression. A statement describ- (d) Statements that Are Not Hearsay. A statement ing or explaining an event or condition, made while that meets the following conditions is not hearsay: or immediately after the declarant perceived it. (1) A Declarant-Witness’s Prior Statement. The (2) . A statement relating to a declarant testifies and is subject to cross-examina- startling event or condition, made while the tion about a prior statement, and the statement: declarant was under the stress of excitement that it (A) is inconsistent with the declarant’s testi- caused. mony and was given under penalty of perjury at a (3) Then-Existing Mental, Emotional, or Physical trial, hearing, or other proceeding or in a ; Condition. A statement of the declarant’s then-exist- (B) is consistent with the declarant’s testimony ing state of mind (such as motive, intent, or plan) or and is offered to rebut an express or implied charge emotional, sensory, or physical condition (such as that the declarant recently fabricated it or acted from mental feeling, pain, or bodily health), but not in- a recent improper influence or motive in so testify- cluding a statement of memory or belief to prove the ing; or fact remembered or believed unless it relates to the (C) id entifies a person as someone the validity or terms of the declarant’s will. declarant perceived earlier. (4) Statement Made for Medical Diagnosis or Treat- (2) An Opposing Party’s Statement. The state- ment. A statement that - ment is offered against an opposing party and: (A) is made for – and is reasonably pertinent to – (A) was made by the party in an individual or medical diagnosis or treatment; and representative capacity; (B) describes medical history; past or present (B) is one the party manifested that it adopted symptoms or sensations; their inception; or their or believed to be true; general cause. (C) was made by a person whom the party (5) . A record that: authorized to make a statement on the subject; (A) is on a matter the witness once knew about (D) was made by the party’s agent or employee but now cannot recall well enough to testify fully on a matter within the scope of that relationship and and accurately; while it existed; or (B) was made or adopted by the witness when the (E) was made by the party’s co-conspirator matter was fresh in the witness’s memory; and during and in furtherance of the conspiracy. (C) accurately reflects the witness’s knowledge. The statement must be considered but does not by If admitted, the record may be read into evidence

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but may be received as an exhibit only if offered by to report, but not including a matter observed by law- an adverse party. enforcement personnel and other personnel act- ing (6) Records of a Regularly Conducted Activity. A in a law enforcement capacity; or record of an act, event, condition, opinion, or diag- (iii) against the government, factual findings nosis if: from a legally authorized investigation; and (A) the record was made at or near the time by – (B) neither the source of information nor other or from information transmitted by – someone with circumstances indicate a lack of trustworthiness. knowledge; Notwithstanding subdivision (8)(A)(ii), the follow- (B) the record was kept in the course of a ing are admissible as a record of a fact or event if regularly conducted activity of a uniformed service, made by a person within the scope of the person’s business, institution, association, profession, organi- official duties and those duties included a duty to zation, occupation, or calling of any kind, whether know or to ascertain through appropriate and trust- or not conducted for profit; worthy channels of information the truth of the fact or event and to record such fact or event: enlistment (C) making the record was a regular practice of papers, physical examination papers, fingerprint that activity; cards, forensic laboratory reports, (D) all these conditions are shown by the testi- documents, morning reports and other personnel ac- mony of the custodian or another qualified witness, countability documents, service records, officer and or by a certification that complies with Mil. R. Evid. enlisted qualification records, court-martial convic- 902(11) or with a statute permitting certification in a tion records, logs, unit personnel diaries, individual criminal proceeding in a court of the United States; equipment records, daily strength records of - and ers, and rosters of . (E) neither the source of information nor the (9) Public Records of Vital Statistics. A record of a method or circumstances of preparation indicate a birth, death, or marriage, if reported to a public lack of trustworthiness. Records of regularly con- office in accordance with a legal duty. ducted activities include, but are not limited to, en- (10) Absence of a Public Record. Testimony – or a listment papers, physical examination papers, certification under Rule 902 – that a diligent search failed fingerprint cards, forensic laboratory reports, chain to disclose a public record or statement if: of custody documents, morning reports and other (A) the testimony or certification is admitted to prove personnel accountability documents, service records, that officer and enlisted qualification records, logs, unit (i) the record or statement does not exist; or personnel diaries, individual equipment records, (ii) a matter did not occur or exist, if a public office daily strength records of prisoners, and rosters of regularly kept a record or statement for a matter of that prisoners. kind; and (7) Absence of a Record of a Regularly Conducted (B) in a criminal case, a who intends to offer Activity. Evidence that a matter is not included in a a certification provides a written notice of that intent at record described in paragraph (6) if: least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the (A) the evidence is admitted to prove that the court set a different time for the notice or the objection. matter did not occur or exist; (11) Records of Religious Organizations Concern- (B) a record was regularly kept for a matter of ing Personal or Family History. A statement of that kind; and birth, legitimacy, ancestry, marriage, , death, (C) neither the possible source of the information relationship by blood or marriage, or similar facts of nor other cir cu msta nce s ind icate a lack of personal or family history, contained in a regularly trustworthiness. kept record of a religious organization. (8) Public Records. A record or statement of a pub- (12) Certificates of Marriage, Baptism, and Similar lic office if: Ceremonies. A statement of fact contained in a (A) it sets out: certificate: (i) the office’s activities; (A) made by a person who is authorized by a (ii) a matter observed while under a legal duty 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

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(C) purporting to have been issued at the time of riage, divorce, death, relationship by blood, adop- the act or within a reasonable time after it. tion, or marriage, or similar facts of personal or (13) Family Records. A statement of fact about per- family history, age, ancestry, or other similar fact of sonal or family history contained in a family record, the person’s personal or family history. such as a Bible, , chart, engraving on a (20) Reputation Concerning Boundaries or General ring, inscription on a portrait, or engraving on an urn History. A reputation in a community – arising or burial marker. before the controversy – concerning boundaries of (14) Records of Documents that Affect an Interest in land in the community or customs that affect the Property. The record of a document that purports to land, or concerning general historical events impor- establish or affect an interest in property if: tant to that community, State, or nation. (A) the record is admitted to prove the content of (21) Reputation Concerning Character. A reputa- the original recorded document, along with its sign- tion among a person’s associates or in the commu- ing and its delivery by each person who purports to nity concerning the person’s character. have signed it; (22) of a Previous Conviction. Evidence (B) the record is kept in a public office; and of a final judgment of conviction if: (C) a statute authorizes recording documents of (A) the judgment was entered after a trial or that kind in that office. guilty plea, but not a nolo contendere plea; (15) Statements in Documents that Affect an Interest (B) the conviction was for a crime punishable by in Property. A statement contained in a document death, dishonorable discharge, or by imprisonment that purports to establish or affect an interest in for more than a year; property if the matter stated was relevant to the (C) the evidence is admitted to prove any fact document’s purpose unless later dealings with the essential to the judgment; and property are inconsistent with the truth of the state- (D) when offered by the prosecution for a pur- ment or the purport of the document. pose other than impeachment, the judgment was (16) Statements in Ancient Documents. A statement against the accused. in a document that is at least 20 years old and whose The pendency of an appeal may be shown but does authenticity is established. not affect admissibility. In determining whether a (17) Market Reports and Similar Commercial Publi- crime tried by court-martial was punishable by cations. Market quotations, lists (including govern- death, dishonorable discharge, or imprisonment for ment price lists), directories, or other compilations more than one year, the maximum punishment pre- that are generally relied on by the public or by scribed by the President under Article 56 of the persons in particular occupations. Uniform of Military Justice at the time of the con- viction applies without regard to whether the case (18) Statements in Learned Treatises, Periodicals, was tried by general, special, or summary court- or Pamphlets. A statement contained in a treatise, martial. periodical, or pamphlet if: (23) Judgments Involving Personal, Family, or Gen- (A) the statement is called to the attention of an eral History, or a Boundary. A judgment that is expert witness on cross-examination or relied on by admitted to prove a matter of personal, family, or the expert on direct examination; and general history, or boundaries, if the matter: (B) the publication is established as a reliable au- (A) was essential to the judgment; and thority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. (B) could be proved by evidence of reputation. If admitted, the statement may be read into evidence but not received as an exhibit. Rule 804. Exceptions to the rule against (19) Reputation Concerning Personal or Family hearsay – when the declarant Is unavailable History. A reputation among a person’s family by as a witness blood, adoption, or marriage – or among a person’s (a) Criteria for Being Unavailable. A declarant is associates or in the community – concerning the considered to be unavailable as a witness if the person’s birth, adoption, legitimacy, ancestry, mar- declarant:

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(1) is exempted from testifying about the subject to be true because, when made, it was so contrary to matter of the declarant’s statement because the mili- the declarant’s proprietary or pecuniary interest or tary judge rules that a privilege applies; had so great a tendency to invalidate the declarant’s (2) refuses to testify about the subject matter de- claim against someone else or to expose the spite the military judge’s order to do so; declarant to civil or criminal liability; and (3) testifies to not remembering the subject (B) is supported by corroborating circum- matter; stances that clearly indicate its trustworthiness, if it (4) cannot be present or testify at the trial or tends to expose the declarant to criminal liability hearing because of death or a then-existing infirmity, and is offered to exculpate the accused. physical illness, or mental illness; or (4) Statement of Personal or Family History. A statement about: (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process (A) the declarant’s own birth, adoption, legiti- or other reasonable means, to procure: macy, ancestry, marriage, divorce, relationship by blood or marriage, or similar facts of personal or (A) the declarant’s attendance, in the case of a family history, even though the declarant had no hearsay exception under subdivision (b)(1) or (b)(5); way of acquiring personal knowledge about that (B) the declarant’s attendance or testimony, in fact; or the case of a hearsay exception under subdivision (B) another person concerning any of these (b)(2), (b)(3), or (b)(4); or facts, as well as death, if the declarant was related to (6) is unavailable within the meaning of Article the person by blood, adoption, or marriage or was so 49(d)(2). intimately associated with the person’s family that Subdivision (a) does not apply if the statement’s the declarant’s information is likely to be accurate. proponent procured or wrongfully caused the (5) Other Exceptions. [Transferred to Mil.R.Evid. declarant’s unavailability as a witness in order to 807] prevent the declarant from attending or testifying. (6) Statement Offered against a Party that (b) The Exceptions. The following are exceptions to Wrongfully Caused the Declarant’s Unavailability. the rule against hearsay, and are not excluded by A statement offered against a party that wrongfully that rule if the declarant is unavailable as a witness: caused or acquiesced in wrongfully causing the (1) Former Testimony. Testimony that: declarant’s unavailability as a witness, and did so (A) was given by a witness at a trial, hearing, intending that result. or lawful deposition, whether given during the cur- rent proceeding or a different one; and Rule 805. Hearsay within hearsay (B) is now offered against a party who had an Hearsay within hearsay is not excluded by the opportunity and similar motive to develop it by di- rule against hearsay if each part of the combined rect, cross-, or . statements conforms with an exception or exclusion Subject to the limitations in Articles 49 and 50, a to the rule. record of testimony given before a court-martial, court of inquiry, military commission, other military Rule 806. Attacking and supporting the , or pretrial investigation under Article 32 is declarant’s credibility admissible under subdivision (b)(1) if the record of When a hearsay statement – or a statement de- the testimony is a verbatim record. scribed in Mil. R. Evid. 801(d)(2)(C), (D), or (E) – (2) Statement under the Belief of Imminent Death. has been admitted in evidence, the declarant’s credi- In a prosecution for any offense resulting in the bility may be attacked, and then supported, by any death of the alleged victim, a statement that the evidence that would be admissible for those pur- declarant, while believing the declarant’s death to be poses if the declarant had testified as a witness. The imminent, made about its cause or circumstances. military judge may admit evidence of the declarant’s (3) Statement against Interest. A statement that: inconsistent statement or conduct, regardless of (A) a in the declarant’s posi- when it occurred or whether the declarant had an tion would have made only if the person believed it opportunity to explain or deny it. If the party against

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whom the statement was admitted calls the declarant (4) Distinctive Characteristics and the Like. The as a witness, the party may examine the declarant on appearance, contents, substance, internal patterns, or the statement as if on cross-examination. other distinctive characteristics of the item, taken together with all the circumstances. Rule 807. Residual exception. (5) Opinion about a Voice. An opinion identify- (a) In General. Under the following circumstances, ing a person’s voice – whether heard firsthand or a hearsay statement is not excluded by the rule through mechanical or electronic transmission or against hearsay even if the statement is not specifi- recording – based on hearing the voice at any time cally covered by a hearsay exception in Mil. R. under circumstances that connect it with the alleged Evid. 803 or 804: speaker. (1) the statement has equivalent circumstantial (6) Evidence about a Telephone Conversation. guarantees of trustworthiness; For a telephone conversation, evidence that a call (2) it is offered as evidence of a material fact; was made to the number assigned at the time to: (3) it is more probative on the point for which it (A) a particular person, if circumstances, in- is offered than any other evidence that the proponent cluding self-identification, show that the person can obtain through reasonable efforts; and answering was the one called; or (4) admitting it will best serve the purposes of (B) a particular business, if the call was made these rules and the interests of justice. to a business and the call related to business reason- ably transacted over the telephone. (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an (7) Evidence about Public Records. Evidence adverse party reasonable notice of the intent to offer that: the statement and its particulars, including the (A) a document was recorded or filed in a pub- declarant’s name and address, so that the party has a lic office as authorized by law; or fair opportunity to meet it. (B) a purported public record or statement is from the office where items of this kind are kept. SECTION IX (8) Evidence about Ancient Documents or Data AND IDENTIFICATION Compilations. For a document or data compilation, evidence that it: Rule 901. Authenticating or identifying (A) is in a condition that creates no suspicion evidence about its authenticity; (a) In General. To satisfy the requirement of au- (B) was in a place where, if authentic, it would thenticating or identifying an item of evidence, the likely be; and proponent must produce evidence sufficient to sup- (C) is at least 20 years old when offered. port a finding that the item is what the proponent (9) Evidence about a Process or System. Evi- claims it is. dence describing a process or system and showing (b) Examples. The following are examples only – that it produces an accurate result. not a complete list – of evidence that satisfies the (10) Methods Provided by a Statute or Rule. Any requirement: method of authentication or identification allowed (1) Testimony of a Witness with Knowledge. Tes- by a federal statute, a rule prescribed by the timony that an item is what it is claimed to be. Supreme Court, or an applicable regulation pre- (2) Nonexpert Opinion about Handwriting. A scribed pursuant to statutory authority. nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired Rule 902. Evidence that Is self- for the current litigation. authenticating (3) Comparison by an Expert Witness or the Trier The following items of evidence are self-authenti- of Fact. A comparison with an authenticated speci- cating; they require no extrinsic evidence of authen- men by an expert witness or the trier of fact. ticity in order to be admitted:

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(1) Domestic Public Documents that are Sealed and (A) the custodian or another person authorized to Signed. A document that bears: make the certification; or (A) a seal purporting to be that of the United (B) a certificate that complies with subdivision States; any State, district, Commonwealth, territory, (1), (2), or (3) above, a federal statute, a rule pre- or insular possession of the United States; the for- scribed by the Supreme Court, or an applicable regu- mer Panama Canal Zone; the Trust Territory of the lation prescribed pursuant to statutory authority. Pacific Islands; a political subdivision of any of (4a) Documents or Records of the United States Ac- these entities; or a department, agency, or officer of companied by Attesting Certificates. Documents or any entity named above; and records kept under the authority of the United States (B) a signature purporting to be an execution or by any department, bureau, agency, office, or court attestation. thereof when attached to or accompanied by an at- testing certificate of the custodian of the document (2) Domestic Public Documents that are Not Sealed or record without further authentication. but are Signed and Certified. A document that bears (5) Official Publications. A book, pamphlet, or no seal if: other publication purporting to be issued by a public (A) it bears the signature of an officer or em- authority. ployee of an entity named in subdivision (1)(A) (6) Newspapers and Periodicals. Printed material above; and purporting to be a newspaper or periodical. (B) another public officer who has a seal and (7) Trade Inscriptions and the Like. An inscription, official duties within that same entity certifies under sign, tag, or label purporting to have been affixed in seal – or its equivalent – that the signer has the the course of business and indicating origin, owner- official capacity and that the signature is genuine. ship, or control. (3) Foreign Public Documents. A document that (8) Acknowledged Documents. A document accom- purports to be signed or attested by a person who is panied by a certificate of acknowledgment that is authorized by a foreign country’s law to do so. The lawfully executed by a or another offi- document must be accompanied by a final certifica- cer who is authorized to take acknowledgments. tion that certifies the genuineness of the signature (9) Commercial Paper and Related Documents. and official position of the signer or attester – or of Commercial paper, a signature on it, and related any foreign official whose certificate of genuineness documents, to the extent allowed by general com- relates to the signature or attestation or is in a chain mercial law. of certificates of genuineness relating to the signa- (10) under a Federal Statute or Regu- ture or attestation. The certification may be made by lation. A signature, document, or anything else that a secretary of a United States embassy or legation; a federal statute, or an applicable regulation pre- by a general, vice consul, or consular agent scribed pursuant to statutory authority, declares to be of the United States; or by a diplomatic or consular presumptively or genuine or authentic. official of the foreign country assigned or accredited (11) Certified Domestic Records of a Regularly to the United States. If all parties have been given a Conducted Activity. The original or a copy of a reasonable opportunity to investigate the document’s domestic record that meets the requirements of Mil. authenticity and accuracy, the military judge may, R. Evid. 803(6)(A)-(C), as shown by a certification for good cause, either: of the custodian or another qualified person that (A) order that it be treated as presumptively au- complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, or thentic without final certification; or at a later time that the military judge allows for (B) allow it to be evidenced by an attested sum- good cause, the proponent must give an adverse mary with or without final certification. party reasonable written notice of the intent to offer (4) Certified Copies of Public Records. A copy of the record and must make the record and certifica- an official record – or a copy of a document that tion available for inspection so that the party has a was recorded or filed in a public office as authorized fair opportunity to challenge them. by law – if the copy is certified as correct by:

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Rule 903. Subscribing witness’s testimony the content of a writing, recording, or photograph is A subscribing witness’s testimony is necessary to admissible if: authenticate a writing only if required by the law of (a) Originals or destroyed. all the originals are the jurisdiction that governs its validity. lost or destroyed, and not by the proponent acting in bad faith; SECTION X (b) Original not obtainable. an original cannot be CONTENTS OF WRITINGS, RECORDINGS, obtained by any available judicial process; AND PHOTOGRAPHS (c) Original in possession of opponent. the party against whom the original would be offered had Rule 1001. Definitions that apply to this control of the original; was at that time put on no- section tice, by pleadings or otherwise, that the original In this section: would be a subject of proof at the trial or hearing; (a) A “writing” consists of letters, words, , and fails to produce it at the trial or hearing; or or their equivalent set down in any form. (d) Collateral matters. the writing, recording, or (b) A “recording” consists of letters, words, num- photograph is not closely related to a controlling bers, or their equivalent recorded in any manner. issue. (c) A “photograph” means a photolineart image or its equivalent stored in any form. Rule 1005. Copies of public records to prove (d) An “original” of a writing or recording means content the writing or recording itself or any counterpart The proponent may use a copy to prove the con- intended to have the same effect by the person who tent of an official record – or of a document that executed or issued it. For electronically stored infor- was recorded or filed in a public office as authorized mation, “original” means any printout or other out- by law – if these conditions are met: the record or put readable by sight if it accurately reflects the document is otherwise admissible; and the copy is information. An “original” of a photograph includes certified as correct in accordance with Mil. R. Evid. the negative or a print from it. 902(4) or is testified to be correct by a witness who (e) A “duplicate” means a counterpart produced by has compared it with the original. If no such copy a mechanical, photolineart, chemical, electronic, or can be obtained by reasonable diligence, then the other equivalent process or technique that accurately proponent may use other evidence to prove the reproduces the original. content.

Rule 1002. Requirement of the original Rule 1006. Summaries to prove content An original writing, recording, or photograph is The proponent may use a summary, chart, or cal- required in order to prove its content unless these culation to prove the content of voluminous writ- rules, this Manual, or a federal statute provides ings, recordings, or photographs that cannot be otherwise. conveniently examined in court. The proponent must make the originals or duplicates available for exami- Rule 1003. Admissibility of duplicates nation or copying, or both, by other parties at a reasonable time or place. The military judge may A duplicate is admissible to the same extent as the order the proponent to produce them in court. original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate. Rule 1007. Testimony or statement of a party to prove content Rule 1004. Admissibility of other evidence of The proponent may prove the content of a writing, content recording, or photograph by the testimony, deposi- tion, or written statement of the party against whom An original is not required and other evidence of

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the evidence is offered. The proponent need not ac- vided under R.C.M. 1001 and otherwise as provided count for the original. in this Manual. (c) Rules on Privilege. The rules on privilege apply Rule 1008. Functions of the military judge at all stages of a case or proceeding. and the members (d) Exceptions. These rules – except for Mil. R. Ordinarily, the military judge determines whether Evid. 412 and those on privilege – do not apply to the proponent has fulfilled the factual conditions for the following: admitting other evidence of the content of a writing, (1) the military judge’s determination, under Rule recording, or photograph under Mil. R. Evid. 1004 104(a), on a preliminary question of fact governing or 1005. When a court-martial is composed of a admissibility; military judge and members, the members determine (2) pretrial investigations under Article 32; – in accordance with Mil. R. Evid. 104(b) – any (3) proceedings for vacation of suspension of sen- issue about whether: tence under Article 72; and (a) an asserted writing, recording, or photograph (4) miscellaneous actions and proceedings related ever existed; to search authorizations, pretrial restraint, pretrial (b) another one produced at the trial or hearing is confinement, or other proceedings authorized under the original; or the Uniform Code of Military Justice or this Manual (c) other evidence of content accurately reflects the that are not listed in subdivision (a). content. Rule 1102. Amendments SECTION XI (a) General Rule. Amendments to the Federal Rules MISCELLANEOUS RULES of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Rule 1101. Applicability of these rules Evidence by operation of law 18 months after the (a) In General. Except as otherwise provided in this effective date of such amendments, unless action to Manual, these rules apply generally to all courts- the contrary is taken by the President. martial, including summary courts-martial, Article (b) Rules Determined Not to Apply. The President 39(a) sessions, limited factfinding proceedings or- has determined that the following Federal Rules of dered on review, proceedings in revision, and con- Evidence do not apply to the Military Rules of Evi- tempt proceedings other than contempt proceedings dence: Rules 301, 302, 415, and 902(12). in which the judge may act summarily. (b) Rules Relaxed. The application of these rules Rule 1103. Title may be relaxed in presentencing proceedings as pro- These rules may be cited as the Military Rules of Evidence.

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