PART III MILITARY RULES OF EVIDENCE

UPDATED MILITARY RULES OF EVIDENCE

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PART III

MILITARY RULES OF EVIDENCE

SECTION I

GENERAL

PROVISIONS

Rule 101. Scope

(a) Scope. These rules apply to courts-martial

proceedings to the extent and with the exceptions

stated in Mil. R. Evid. 1101.

(b) Sources of Law. In the absence of guidance in

this Manual or these rules, courts-martial will apply:

(1) First, the Federal Rules of Evidence and the

case law interpreting them; and

(2) Second, when not inconsistent with subdivi-

sion (b)(1), the rules of evidence at common law.

(c) Rule of Construction. Except as otherwise pro-

vided in these rules, the term “military judge” in-

cludes the president of a special court-martial

without a military judge and a summary court-mar-

tial officer.

Discussion

Discussion was added to these Rules in 2013. The Discussion

itself does not have the force of law, even though it may describe

legal requirements derived from other sources. It is in the nature

of treatise, and may be used as secondary authority. If a matter is

included in a rule, it is intended that the matter be binding, unless

it is clearly expressed as precatory. The Discussion will be re-

vised from time to time as warranted by changes in applicable

law. See Composition of the Manual for Courts-Martial in Appen-

dix 21.

Practitioners should also refer to the Analysis of the Military

Rules of Evidence contained in Appendix 22 of this Manual. The

Analysis is similar to Committee Notes accompanying the Federal

Rules of Evidence and is intended to address the basis of the rule,

deviation from the Federal Rules of Evidence, relevant precedent,

and drafters’ intent.

Rule 102. Purpose

These rules should be construed so as to adminis-

ter every proceeding fairly, eliminate unjustifiable

expense and delay, and promote the development of

evidence law, to the end of ascertaining the truth

and securing a just determination.

Rule 103. Rulings on evidence

(a) Preserving a Claim of Error. A party may claim

error in a ruling to admit or exclude evidence only if

the error materially prejudices a substantial right of

the party and:

(1) if the ruling admits evidence, a party, on the

record:

(A) timely objects or moves to strike;

and

(B) states the specific ground, unless it was

apparent from the context; or

(2) if the ruling excludes evidence, a party in-

forms the military judge of its substance by an offer

of proof, unless the substance was apparent from the

context.

(b) Not Needing to Renew an Objection or Offer of

Proof. Once the military judge rules definitively on

the record admitting or excluding evidence, either

before or at trial, a party need not renew an objec-

tion or offer of proof to preserve a claim of error for

appeal.

(c) Review of Constitutional Error. The standard

provided in subdivision (a)(2) does not apply to er-

rors implicating the United States Constitution as it

applies to members of the Armed Forces, unless the

error arises under these rules and subdivision (a)(2)

provides a standard that is more advantageous to the

accused than the constitutional standard.

(d) Military Judge’s Statement about the Ruling;

Directing an Offer of Proof. The military judge may

make any statement about the character or form of

the evidence, the objection made, and the ruling.

The military judge may direct that an offer of proof

be made in question-and-answer form.

(e) Preventing the Members from Hearing Inadmis-

sible Evidence. In a court-martial composed of a

military judge and members, to the extent practica-

ble, the military judge must conduct a trial so that

inadmissible evidence is not suggested to the mem-

bers by any means.

(f) Taking Notice of Plain Error. A military judge

may take notice of a plain error that materially prej-

udices a substantial right, even if the claim of error

was not properly preserved.

Rule 104. Preliminary questions

(a) In General. The military judge must decide any

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preliminary question about whether a witness is

available or qualified, a privilege exists, a continu-

ance should be granted, or evidence is admissible. In

so deciding, the military judge is not bound by evi-

dence rules, except those on privilege.

(b) Relevance that Depends on a Fact. When the

relevance of evidence depends on whether a fact

exists, proof must be introduced sufficient to support

a finding that the fact does exist. The military judge

may admit the proposed evidence on the condition

that the proof be introduced later. A ruling on the

sufficiency of evidence to support a finding of ful-

fillment of a condition of fact is the sole responsibil-

ity of the military judge, except where these rules or

this Manual provide expressly to the contrary.

(c) Conducting a Hearing so that the Members Can-

not Hear It. Except in cases tried before a special

court-martial without a military judge, the military

judge must conduct any hearing on a preliminary

question so that the members cannot hear it if:

(1) the hearing involves the admissibility of a

statement of the accused under Mil. R. Evid. 301-

306;

(2) the accused is a witness and so requests; or

(3) justice so requires.

(d) Cross-Examining the Accused. By testifying on

a preliminary question, the accused does not become

subject to cross-examination on other issues in the

case.

(e) Evidence Relevant to Weight and Credibility.

This rule does not limit a party’s right to introduce

before the members evidence that is relevant to the

weight or credibility of other evidence.

Rule 105. Limiting evidence that is not

admissible against other parties or for other

purposes

If the military judge admits evidence that is ad-

missible against a party or for a purpose – but not

against another party or for another purpose – the

military judge, on timely request, must restrict the

evidence to its proper scope and instruct the mem-

bers accordingly.

Rule 106. Remainder of or related writings

or recorded statements

If a party introduces all or part of a writing or

recorded statement, an adverse party may require the

introduction, at that time, of any other part – or any

other writing or recorded statement – that in fairness

ought to be considered at the same time.

SECTION II

JUDICIAL NOTICE

Rule 201. Judicial notice of adjudicative

facts

(a) Scope. This rule governs judicial notice of an

adjudicative fact only, not a legislative fact.

(b) Kinds of Facts that May Be Judicially Noticed.

The military judge may judicially notice a fact that

is not subject to reasonable dispute because it:

(1) is generally known universally, locally, or in

the area pertinent to the event; or

(2) can be accurately and readily determined from

sources whose accuracy cannot reasonably be

questioned.

(c) Taking Notice. The military judge:

(1) may take judicial notice whether requested or

not; or

(2) must take judicial notice if a party requests it

and the military judge is supplied with the necessary

information.

The military judge must inform the parties in open

court when, without being requested, he or she takes

judicial notice of an adjudicative fact essential to

establishing an element of the case.

(d) Timing. The military judge may take judicial

notice at any stage of the proceeding.

(e) Opportunity to Be Heard. On timely request, a

party is entitled to be heard on the propriety of

taking judicial notice and the nature of the fact to be

noticed. If the military judge takes judicial notice

before notifying a party, the party, on request, is still

entitled to be heard.

(f) Instructing the Members. The military judge

must instruct the members that they may or may not

accept the noticed fact as conclusive.

Rule 202. Judicial notice of law

(a) Domestic Law. The military judge may take ju-

dicial notice of domestic law. If a domestic law is a

fact that is of consequence to the determination of

the action, the procedural requirements of Mil. R.

Evid. 201 – except Rule 201(f) – apply.

(b) Foreign Law. A party who intends to raise an

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issue concerning the law of a foreign country must

give reasonable written notice. The military judge, in

determining foreign law, may consider any relevant

material or source, in accordance with Mil. R. Evid.

104. Such a determination is a ruling on a question

of law.

SECTION III

EXCLUSIONARY RULES AND RELATED

MATTERS CONCERNING SELF-

INCRIMINATION, SEARCH AND SEIZURE,

AND EYEWITNESS IDENTIFICATION

Rule 301. Privilege concerning compulsory

self-incrimination

(a) General Rule. An individual may claim the most

favorable privilege provided by the Fifth Amend-

ment to the United States Constitution, Article 31, or

these rules. The privileges against self-incrimination

are applicable only to evidence of a testimonial or

communicative nature.

(b) Standing. The privilege of a witness to refuse to

respond to a question that may tend to incriminate

the witness is a personal one that the witness may

exercise or waive at his or her discretion.

(c) Limited Waiver. An accused who chooses to tes-

tify as a witness waives the privilege against self-

incrimination only with respect to the matters about

which he or she testifies. If the accused is on trial

for two or more offenses and on direct examination

testifies about only one or some of the offenses, the

accused may not be cross-examined as to guilt or

innocence with respect to the other offenses unless

the cross-examination is relevant to an offense con-

cerning which the accused has testified. This waiver

is subject to Mil. R. Evid. 608(b).

Discussion

A military judge is not required to provide Article 31 warnings. If

a witness who seems uninformed of the privileges under this rule

appears likely to incriminate himself or herself, the military judge

may advise the witness of the right to decline to make any answer

that might tend to incriminate the witness and that any self-

incriminating answer the witness might make can later be used as

evidence against the witness. Counsel for any party or for the

witness may ask the military judge to so advise a witness if such

a request is made out of the hearing of the witness and the

members, if present. Failure to so advise a witness does not make

the testimony of the witness inadmissible.

(d) Exercise of the Privilege. If a witness states that

the answer to a question may tend to incriminate

him or her, the witness cannot be required to answer

unless the military judge finds that the facts and

circumstances are such that no answer the witness

might make to the question would tend to incrimi-

nate the witness or that the witness has, with respect

to the question, waived the privilege against self-

incrimination. A witness may not assert the privilege

if he or she is not subject to criminal penalty as a

result of an answer by reason of immunity, running

of the statute of limitations, or similar reason.

(1) Immunity Requirements. The minimum grant

of immunity adequate to overcome the privilege is

that which under either R.C.M. 704 or other proper

authority provides that neither the testimony of the

witness nor any evidence obtained from that testi-

mony may be used against the witness at any subse-

quent trial other than in a prosecution for perjury,

false swearing, the making of a false official state-

ment, or failure to comply with an order to testify

after the military judge has ruled that the privilege

may not be asserted by reason of immunity.

(2) Notification of Immunity or Leniency. When a

prosecution witness before a court-martial has been

granted immunity or leniency in exchange for testi-

mony, the grant must be reduced to writing and

must be served on the accused prior to arraignment

or within a reasonable time before the witness tes-

tifies. If notification is not made as required by this

rule, the military judge may grant a continuance

until notification is made, prohibit or strike the testi-

mony of the witness, or enter such other order as

may be required.

(e) Waiver of the Privilege. A witness who answers

a self-incriminating question without having asserted

the privilege against self-incrimination may be re-

quired to answer questions relevant to the disclosure,

unless the questions are likely to elicit additional

self-incriminating information.

(1) If a witness asserts the privilege against self-

incrimination on cross-examination, the military

judge, upon motion, may strike the direct testimony

of the witness in whole or in part, unless the matters

to which the witness refuses to testify are purely

collateral.

(2) Any limited waiver of the privilege under

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.

608(b).

(f) Effect of Claiming the Privilege.

(1) No Inference to Be Drawn. The fact that a

witness has asserted the privilege against self-in-

crimination cannot be considered as raising any in-

ference unfavorable to either the accused or the

government.

(2) Pretrial Invocation Not Admissible. The fact

that the accused during official questioning and in

exercise of rights under the Fifth Amendment to the

United States Constitution or Article 31 remained

silent, refused to answer a certain question, re-

quested counsel, or requested that the questioning be

terminated, is not admissible against the accused.

(3) Instructions Regarding the Privilege. When

the accused does not testify at trial, defense counsel

may request that the members of the court be in-

structed to disregard that fact and not to draw any

adverse inference from it. Defense counsel may re-

quest that the members not be so instructed. Defense

counsel’s election will be binding upon the military

judge except that the military judge may give the

instruction when the instruction is necessary in the

interests of justice.

Rule 302. Privilege concerning mental

examination of an accused

(a) General rule. The accused has a privilege to

prevent any statement made by the accused at a

mental examination ordered under R.C.M. 706 and

any derivative evidence obtained through use of

such a statement from being received into evidence

against the accused on the issue of guilt or inno-

cence or during sentencing proceedings. This privi-

lege may be claimed by the accused notwithstanding

the fact that the accused may have been warned of

the rights provided by Mil. R. Evid. 305 at the

examination.

(b) Exceptions.

(1) There is no privilege under this rule when the

accused first introduces into evidence such state-

ments or derivative evidence.

(2) If the court-martial has allowed the defense to

present expert testimony as to the mental condition

of the accused, an expert witness for the prosecution

may testify as to the reasons for his or her conclu-

sions, but such testimony may not extend to state-

ments of the accused except as provided in

subdivision (b)(1).

(c) Release of Evidence from an R.C.M. 706 Exami-

nation. If the defense offers expert testimony con-

cerning the mental condition of the accused, the

military judge, upon motion, must order the release

to the prosecution of the full contents, other than

any statements made by the accused, of any report

prepared pursuant to R.C.M. 706. If the defense of-

fers statements made by the accused at such exami-

nation, the military judge, upon motion, may order

the disclosure of such statements made by the ac-

cused and contained in the report as may be neces-

sary in the interests of justice.

(d) Noncompliance by the Accused. The military

judge may prohibit an accused who refuses to coop-

erate in a mental examination authorized under

R.C.M. 706 from presenting any expert medical tes-

timony as to any issue that would have been the

subject of the mental examination.

(e) Procedure. The privilege in this rule may be

claimed by the accused only under the procedure set

forth in Mil. R. Evid. 304 for an objection or a

motion to suppress.

Rule 303. Degrading questions

Statements and evidence are inadmissible if they

are not material to the issue and may tend to de-

grade the person testifying.

Rule 304. Confessions and admissions

(a) General rule. If the accused makes a timely mo-

tion or objection under this rule, an involuntary

statement from the accused, or any evidence derived

therefrom, is inadmissible at trial except as provided

in subdivision (e).

(1) Definitions. As used in this rule:

(A) “Involuntary statement” means a statement

obtained in violation of the self-incrimination privi-

lege or Due Process Clause of the Fifth Amendment

to the United States Constitution, Article 31, or

through the use of coercion, unlawful influence, or

unlawful inducement.

(B) “Confession” means an acknowledgment of

guilt.

(C) “Admission” means a self-incriminating

statement falling short of an acknowledgment of

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guilt, even if it was intended by its maker to be

exculpatory.

(2) Failure to deny an accusation of wrongdoing

is not an admission of the truth of the accusation if

at the time of the alleged failure the person was

under investigation or was in confinement, arrest, or

custody for the alleged wrongdoing.

(b) Evidence Derived from a Statement of the Ac-

cused. When the defense has made an appropriate

and timely motion or objection under this rule, evi-

dence allegedly derived from a statement of the ac-

cused may not be admitted unless the military judge

finds by a preponderance of the evidence that:

(1) the statement was made voluntarily,

(2) the evidence was not obtained by use of the

accused’s statement, or

(3) the evidence would have been obtained even

if the statement had not been made.

(c) Corroboration of a Confession or Admission.

(1) An admission or a confession of the accused

may be considered as evidence against the accused

on the question of guilt or innocence only if inde-

pendent evidence, either direct or circumstantial, has

been admitted into evidence that corroborates the

essential facts admitted to justify sufficiently an in-

ference of their truth.

(2) Other uncorroborated confessions or admis-

sions of the accused that would themselves require

corroboration may not be used to supply this inde-

pendent evidence. If the independent evidence raises

an inference of the truth of some but not all of the

essential facts admitted, then the confession or ad-

mission may be considered as evidence against the

accused only with respect to those essential facts

stated in the confession or admission that are corrob-

orated by the independent evidence.

(3) Corroboration is not required for a statement

made by the accused before the court by which the

accused is being tried, for statements made prior to

or contemporaneously with the act, or for statements

offered under a rule of evidence other than that

pertaining to the admissibility of admissions or

confessions.

(4) Quantum of Evidence Needed. The independ-

ent evidence necessary to establish corroboration

need not be sufficient of itself to establish beyond a

reasonable doubt the truth of facts stated in the ad-

mission or confession. The independent evidence

need raise only an inference of the truth of the

essential facts admitted. The amount and type of

evidence introduced as corroboration is a factor to

be considered by the trier of fact in determining the

weight, if any, to be given to the admission or

confession.

(5) Procedure. The military judge alone is to de-

termine when adequate evidence of corroboration

has been received. Corroborating evidence must be

introduced before the admission or confession is in-

troduced unless the military judge allows submission

of such evidence subject to later corroboration.

(d) Disclosure of Statements by the Accused and

Derivative Evidence. Before arraignment, the prose-

cution must disclose to the defense the contents of

all statements, oral or written, made by the accused

that are relevant to the case, known to the trial

counsel, and within the control of the Armed Forces,

and all evidence derived from such statements, that

the prosecution intends to offer against the accused.

(e) Limited Use of an Involuntary Statement. A

statement obtained in violation of Article 31 or Mil.

R. Evid. 305(b)-(c) may be used only:

(1) to impeach by contradiction the in-court testi-

mony of the accused; or

(2) in a later prosecution against the accused for

perjury, false swearing, or the making of a false

official statement.

(f) Motions and Objections.

(1) Motions to suppress or objections under this

rule, or Mil. R. Evid. 302 or 305, to any statement

or derivative evidence that has been disclosed must

be made by the defense prior to submission of a

plea. In the absence of such motion or objection, the

defense may not raise the issue at a later time except

as permitted by the military judge for good cause

shown. Failure to so move or object constitutes a

waiver of the objection.

(2) If the prosecution seeks to offer a statement

made by the accused or derivative evidence that was

not disclosed before arraignment, the prosecution

must provide timely notice to the military judge and

defense counsel. The defense may object at that

time, and the military judge may make such orders

as are required in the interests of justice.

(3) The defense may present evidence relevant to

the admissibility of evidence as to which there has

been an objection or motion to suppress under this

rule. An accused may testify for the limited purpose

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of denying that the accused made the statement or

that the statement was made voluntarily.

(A) Prior to the introduction of such testimony

by the accused, the defense must inform the military

judge that the testimony is offered under subdivision

(f)(3).

(B) When the accused testifies under subdivi-

sion (f)(3), the accused may be cross-examined only

as to the matter on which he or she testifies. Nothing

said by the accused on either direct or cross-exami-

nation may be used against the accused for any

purpose other than in a prosecution for perjury, false

swearing, or the making of a false official statement.

(4) Specificity. The military judge may require

the defense to specify the grounds upon which the

defense moves to suppress or object to evidence. If

defense counsel, despite the exercise of due dili-

gence, has been unable to interview adequately those

persons involved in the taking of a statement, the

military judge may make any order required in the

interests of justice, including authorization for the

defense to make a general motion to suppress or

general objection.

(5) Rulings. The military judge must rule, prior to

plea, upon any motion to suppress or objection to

evidence made prior to plea unless, for good cause,

the military judge orders that the ruling be deferred

for determination at trial or after findings. The mili-

tary judge may not defer ruling if doing so adversely

affects a party’s right to appeal the ruling. The mili-

tary judge must state essential findings of fact on the

record when the ruling involves factual issues.

(6) Burden of Proof. When the defense has made

an appropriate motion or objection under this rule,

the prosecution has the burden of establishing the

admissibility of the evidence. When the military

judge has required a specific motion or objection

under subdivision (f)(4), the burden on the prosecu-

tion extends only to the grounds upon which the

defense moved to suppress or object to the evidence.

(7) Standard of Proof. The military judge must

find by a preponderance of the evidence that a state-

ment by the accused was made voluntarily before it

may be received into evidence. When trial is by a

special court-martial without a military judge, a de-

termination by the president of the court that a state-

ment was made voluntarily is subject to objection by

any member of the court. When such objection is

made, it will be resolved pursuant to R.C.M.

801(e)(3)(C).

(8) Effect of Guilty Plea. Except as otherwise ex-

pressly provided in R.C.M. 910(a)(2), a plea of

guilty to an offense that results in a finding of guilty

waives all privileges against self-incrimination and

all motions and objections under this rule with

respect to that offense regardless of whether raised

prior to plea.

(g) Weight of the Evidence. If a statement is admit-

ted into evidence, the military judge must permit the

defense to present relevant evidence with respect to

the voluntariness of the statement and must instruct

the members to give such weight to the statement as

it deserves under all the circumstances.

(h) Completeness. If only part of an alleged admis-

sion or confession is introduced against the accused,

the defense, by cross-examination or otherwise, may

introduce the remaining portions of the statement.

(i) Evidence of an Oral Statement. A voluntary oral

confession or admission of the accused may be

proved by the testimony of anyone who heard the

accused make it, even if it was reduced to writing

and the writing is not accounted for.

(j) Refusal to Obey an Order to Submit a Body

Substance. If an accused refuses a lawful order to

submit for chemical analysis a sample of his or her

blood, breath, urine or other body substance, evi-

dence of such refusal may be admitted into evidence

on:

(1) A charge of violating an order to submit such

a sample; or

(2) Any other charge on which the results of the

chemical analysis would have been admissible.

Rule 305. Warnings about rights

(a) General rule. A statement obtained in violation

of this rule is involuntary and will be treated under

Mil. R. Evid. 304.

(b) Definitions. As used in this rule:

(1) “Person subject to the code” means a person

subject to the Uniform Code of Military Justice as

contained in Chapter 47 of Title 10, United States

Code. This term includes, for purposes of subdivi-

sion (c) of this rule, a knowing agent of any such

person or of a military unit.

(2) “Interrogation” means any formal or informal

questioning in which an incriminating response ei-

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ther is sought or is a reasonable consequence of such

questioning.

(3) “Custodial interrogation” means questioning

that takes place while the accused or suspect is in

custody, could reasonably believe himself or herself

to be in custody, or is otherwise deprived of his or

her freedom of action in any significant way.

(c) Warnings Concerning the Accusation, Right to

Remain Silent, and Use of Statements.

(1) Article 31 Rights Warnings. A statement ob-

tained from the accused in violation of the accused’s

rights under Article 31 is involuntary and therefore

inadmissible against the accused except as provided

in subdivision (d). Pursuant to Article 31, a person

subject to the code may not interrogate or request

any statement from an accused or a person suspected

of an offense without first:

(A) informing the accused or suspect of the

nature of the accusation;

(B) advising the accused or suspect that the

accused or suspect has the right to remain silent; and

(C) advising the accused or suspect that any

statement made may be used as evidence against the

accused or suspect in a trial by court-martial.

(2) Fifth Amendment Right to Counsel. If a per-

son suspected of an offense and subjected to custo-

dial interrogation requests counsel, any statement

made in the interrogation after such request, or evi-

dence derived from the interrogation after such re-

quest, is inadmissible against the accused unless

counsel was present for the interrogation.

(3) Sixth Amendment Right to Counsel. If an ac-

cused against whom charges have been preferred is

interrogated on matters concerning the preferred

charges by anyone acting in a law enforcement ca-

pacity, or the agent of such a person, and the ac-

cused requests counsel, or if the accused has

appointed or retained counsel, any statement made

in the interrogation, or evidence derived from the

interrogation, is inadmissible unless counsel was

present for the interrogation.

(4) Exercise of Rights. If a person chooses to

exercise the privilege against self-incrimination,

questioning must cease immediately. If a person

who is subjected to interrogation under the circum-

stances described in subdivisions (c)(2) or (c)(3) of

this rule chooses to exercise the right to counsel,

questioning must cease until counsel is present.

(d) Presence of Counsel. When a person entitled to

counsel under this rule requests counsel, a judge

advocate or an individual certified in accordance

with Article 27(b) will be provided by the United

States at no expense to the person and without

regard to the person’s indigency and must be present

before the interrogation may proceed. In addition to

counsel supplied by the United States, the person

may retain civilian counsel at no expense to the

United States. Unless otherwise provided by regula-

tions of the Secretary concerned, an accused or sus-

pect does not have a right under this rule to have

military counsel of his or her own selection.

(e) Waiver.

(1) Waiver of the Privilege Against Self-Incrimi-

nation. After receiving applicable warnings under

this rule, a person may waive the rights described

therein and in Mil. R. Evid. 301 and make a state-

ment. The waiver must be made freely, knowingly,

and intelligently. A written waiver is not required.

The accused or suspect must affirmatively acknowl-

edge that he or she understands the rights involved,

affirmatively decline the right to counsel, and af-

firmatively consent to making a statement.

(2) Waiver of the Right to Counsel. If the right to

counsel is applicable under this rule and the accused

or suspect does not affirmatively decline the right to

counsel, the prosecution must demonstrate by a pre-

ponderance of the evidence that the individual

waived the right to counsel.

(3) Waiver After Initially Invoking the Right to

Counsel.

(A) Fifth Amendment Right to Counsel. If an

accused or suspect subjected to custodial interroga-

tion requests counsel, any subsequent waiver of the

right to counsel obtained during a custodial interro-

gation concerning the same or different offenses is

invalid unless the prosecution can demonstrate by a

preponderance of the evidence that:

(i) the accused or suspect initiated the com-

munication leading to the waiver; or

(ii) the accused or suspect has not con-

tinuously had his or her freedom restricted by con-

finement, or other means, during the period between

the request for counsel and the subsequent waiver.

(B) Sixth Amendment Right to Counsel. If an

accused or suspect interrogated after preferral of

charges as described in subdivision (c)(1) requests

counsel, any subsequent waiver of the right to coun-

sel obtained during an interrogation concerning the

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same offenses is invalid unless the prosecution can

demonstrate by a preponderance of the evidence that

the accused or suspect initiated the communication

leading to the waiver.

(f) Standards for Nonmilitary Interrogations.

(1) United States Civilian Interrogations. When a

person subject to the code is interrogated by an

official or agent of the United States, of the District

of Columbia, or of a State, Commonwealth, or pos-

session of the United States, or any political subdivi-

sion of such a State, Commonwealth, or possession,

the person’s entitlement to rights warnings and the

validity of any waiver of applicable rights will be

determined by the principles of law generally recog-

nized in the trial of criminal cases in the United

States district courts involving similar interrogations.

(2) Foreign Interrogations. Warnings under Arti-

cle 31 and the Fifth and Sixth Amendments to the

United States Constitution are not required during an

interrogation conducted outside of a State, district,

Commonwealth, territory, or possession of the

United States by officials of a foreign government or

their agents unless such interrogation is conducted,

instigated, or participated in by military personnel or

their agents or by those officials or agents listed in

subdivision (f)(1). A statement obtained from a for-

eign interrogation is admissible unless the statement

is obtained through the use of coercion, unlawful

influence, or unlawful inducement. An interrogation

is not “participated in” by military personnel or their

agents or by the officials or agents listed in subdivi-

sion (f)(1) merely because such a person was present

at an interrogation conducted in a foreign nation by

officials of a foreign government or their agents, or

because such a person acted as an interpreter or took

steps to mitigate damage to property or physical

harm during the foreign interrogation.

Rule 306. Statements by one of several

accused

When two or more accused are tried at the same

trial, evidence of a statement made by one of them

which is admissible only against him or her or only

against some but not all of the accused may not be

received in evidence unless all references inculpat-

ing an accused against whom the statement is inad-

missible are deleted effectively or the maker of the

statement is subject to cross-examination.

Rule 311. Evidence obtained from unlawful

searches and seizures

(a) General rule. Evidence obtained as a result of an

unlawful search or seizure made by a person acting

in a governmental capacity is inadmissible against

the accused if:

(1) the accused makes a timely motion to sup-

press or an objection to the evidence under this rule;

and

(2) the accused had a reasonable expectation of

privacy in the person, place or property searched;

the accused had a legitimate interest in the property

or evidence seized when challenging a seizure; or

the accused would otherwise have grounds to object

to the search or seizure under the Constitution of the

United States as applied to members of the Armed

Forces.

(b) Definition. As used in this rule, a search or sei-

zure is “unlawful” if it was conducted, instigated, or

participated in by:

(1) military personnel or their agents and was in

violation of the Constitution of the United States as

applied to members of the Armed Forces, a federal

statute applicable to trials by court-martial that re-

quires exclusion of evidence obtained in violation

thereof, or Mil. R. Evid. 312-317;

(2) other officials or agents of the United States,

of the District of Columbia, or of a State, Common-

wealth, or possession of the United States or any

political subdivision of such a State, Common-

wealth, or possession, and was in violation of the

Constitution of the United States, or is unlawful

under the principles of law generally applied in the

trial of criminal cases in the United States district

courts involving a similar search or seizure; or

(3) officials of a foreign government or their

agents, where evidence was obtained as a result of a

foreign search or seizure that subjected the accused

to gross and brutal maltreatment. A search or seizure

is not “participated in” by a United States military or

civilian official merely because that person is pres-

ent at a search or seizure conducted in a foreign

nation by officials of a foreign government or their

agents, or because that person acted as an interpreter

or took steps to mitigate damage to property or

physical harm during the foreign search or seizure.

(c) Exceptions.

(1) Impeachment. Evidence that was obtained as

a result of an unlawful search or seizure may be

UPDATED MILITARY RULES OF EVIDENCE

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9

used to impeach by contradiction the in-court testi-

mony of the accused.

(2) Inevitable Discovery. Evidence that was ob-

tained as a result of an unlawful search or seizure

may be used when the evidence would have been

obtained even if such unlawful search or seizure had

not been made.

(3) Good Faith Execution of a Warrant or Search

Authorization. Evidence that was obtained as a result

of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an au-

thorization to search, seize or apprehend issued by

an individual competent to issue the authorization

under Mil. R. Evid. 315(d) or from a search warrant

or arrest warrant issued by competent civilian

authority;

(B) the individual issuing the authorization or

warrant had a substantial basis for determining the

existence of probable cause; and

(C) the officials seeking and executing the au-

thorization or warrant reasonably and with good

faith relied on the issuance of the authorization or

warrant. Good faith is to be determined using an

objective standard.

(d) Motions to Suppress and Objections.

(1) Disclosure. Prior to arraignment, the prosecu-

tion must disclose to the defense all evidence seized

from the person or property of the accused, or be-

lieved to be owned by the accused, or evidence

derived therefrom, that it intends to offer into evi-

dence against the accused at trial.

(2) Time Requirements.

(A) When evidence has been disclosed prior to

arraignment under subdivision (d)(1), the defense

must make any motion to suppress or objection

under this rule prior to submission of a plea. In the

absence of such motion or objection, the defense

may not raise the issue at a later time except as

permitted by the military judge for good cause

shown. Failure to so move or object constitutes a

waiver of the motion or objection.

(B) If the prosecution intends to offer evidence

described in subdivision (d)(1) that was not dis-

closed prior to arraignment, the prosecution must

provide timely notice to the military judge and to

counsel for the accused. The defense may enter an

objection at that time and the military judge may

make such orders as are required in the interest of

justice.

(3) Specificity. The military judge may require

the defense to specify the grounds upon which the

defense moves to suppress or object to evidence

described in subdivision (d)(1). If defense counsel,

despite the exercise of due diligence, has been una-

ble to interview adequately those persons involved

in the search or seizure, the military judge may enter

any order required by the interests of justice, includ-

ing authorization for the defense to make a general

motion to suppress or a general objection.

(4) Challenging Probable Cause.

(A) Relevant Evidence. If the defense chal-

lenges evidence seized pursuant to a search warrant

or search authorization on the ground that the war-

rant or authorization was not based upon probable

cause, the evidence relevant to the motion is limited

to evidence concerning the information actually

presented to or otherwise known by the authorizing

officer, except as provided in subdivision (d)(4)(B).

(B) False Statements. If the defense makes a

substantial preliminary showing that a government

agent included a false statement knowingly and in-

tentionally or with reckless disregard for the truth in

the information presented to the authorizing officer,

and if the allegedly false statement is necessary to

the finding of probable cause, the defense, upon

request, is entitled to a hearing. At the hearing, the

defense has the burden of establishing by a prepon-

derance of the evidence the allegation of knowing

and intentional falsity or reckless disregard for the

truth. If the defense meets its burden, the prosecu-

tion has the burden of proving by a preponderance

of the evidence, with the false information set aside,

that the remaining information presented to the

authorizing officer is sufficient to establish probable

cause. If the prosecution does not meet its burden,

the objection or motion must be granted unless the

search is otherwise lawful under these rules.

(5) Burden and Standard of Proof.

(A) In general. When the defense makes an

appropriate motion or objection under subdivision

(d), the prosecution has the burden of proving by a

preponderance of the evidence that the evidence was

not obtained as a result of an unlawful search or

seizure, that the evidence would have been obtained

even if the unlawful search or seizure had not been

made, or that the evidence was obtained by officials

who reasonably and with good faith relied on the

UPDATED MILITARY RULES OF EVIDENCE

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10

issuance of an authorization to search, seize, or ap-

prehend or a search warrant or an arrest warrant.

(B) Statement Following Apprehension. In ad-

dition to subdivision (d)(5)(A), a statement obtained

from a person apprehended in a dwelling in viola-

tion R.C.M. 302(d)(2) and (e), is admissible if the

prosecution shows by a preponderance of the evi-

dence that the apprehension was based on probable

cause, the statement was made at a location outside

the dwelling subsequent to the apprehension, and the

statement was otherwise in compliance with these

rules.

(C) Specific Grounds of Motion or Objection.

When the military judge has required the defense to

make a specific motion or objection under subdivi-

sion (d)(3), the burden on the prosecution extends

only to the grounds upon which the defense moved

to suppress or objected to the evidence.

(6) Defense Evidence. The defense may present

evidence relevant to the admissibility of evidence as

to which there has been an appropriate motion or

objection under this rule. An accused may testify for

the limited purpose of contesting the legality of the

search or seizure giving rise to the challenged evi-

dence. Prior to the introduction of such testimony by

the accused, the defense must inform the military

judge that the testimony is offered under subdivision

(d). When the accused testifies under subdivision

(d), the accused may be cross-examined only as to

the matter on which he or she testifies. Nothing said

by the accused on either direct or cross-examination

may be used against the accused for any purpose

other than in a prosecution for perjury, false swear-

ing, or the making of a false official statement.

(7) Rulings. The military judge must rule, prior to

plea, upon any motion to suppress or objection to

evidence made prior to plea unless, for good cause,

the military judge orders that the ruling be deferred

for determination at trial or after findings. The mili-

tary judge may not defer ruling if doing so adversely

affects a party’s right to appeal the ruling. The mili-

tary judge must state essential findings of fact on the

record when the ruling involves factual issues.

(8) Informing the Members. If a defense motion

or objection under this rule is sustained in whole or

in part, the court-martial members may not be in-

formed of that fact except when the military judge

must instruct the members to disregard evidence.

(e) Effect of Guilty Plea. Except as otherwise ex-

pressly provided in R.C.M. 910(a)(2), a plea of

guilty to an offense that results in a finding of guilty

waives all issues under the Fourth Amendment to

the Constitution of the United States and Mil. R.

Evid. 311-317 with respect to the offense, whether

or not raised prior to plea.

Rule 312. Body views and intrusions

(a) General rule. Evidence obtained from body

views and intrusions conducted in accordance with

this rule is admissible at trial when relevant and not

otherwise inadmissible under these rules.

(b) Visual examination of the body.

(1) Consensual Examination. Evidence obtained

from a visual examination of the unclothed body is

admissible if the person consented to the inspection

in accordance with Mil. R. Evid. 314(e).

(2) Involuntary Examination. Evidence obtained

from an involuntary display of the unclothed body,

including a visual examination of body cavities, is

admissible only if the inspection was conducted in a

reasonable fashion and authorized under the follow-

ing provisions of the Military Rules of Evidence:

(A) inspections and inventories under Mil. R.

Evid. 313;

(B) searches under Mil. R. Evid. 314(b) and

314(c) if there is a reasonable suspicion that weap-

ons, contraband, or evidence of crime is concealed

on the body of the person to be searched;

(C) searches incident to lawful apprehension

under Mil. R. Evid. 314(g);

(D) searches within a jail, confinement facility,

or similar facility under Mil. R. Evid. 314(h) if rea-

sonably necessary to maintain the security of the

institution or its personnel;

(E) emergency searches under Mil. R. Evid.

314(i); and

(F) probable cause searches under Mil. R.

Evid. 315.

Discussion

An examination of the unclothed body under this rule should be

conducted whenever practicable by a person of the same sex as

that of the person being examined; however, failure to comply

with this requirement does not make an examination an unlawful

search within the meaning of Mil. R. Evid. 311.

(c) Intrusion into Body Cavities.

UPDATED MILITARY RULES OF EVIDENCE

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11

(1) Mouth, Nose, and Ears. Evidence obtained

from a reasonable nonconsensual physical intrusion

into the mouth, nose, and ears is admissible under

the same standards that apply to a visual examina-

tion of the body under subdivision (b).

(2) Other Body Cavities. Evidence obtained from

nonconsensual intrusions into other body cavities is

admissible only if made in a reasonable fashion by a

person with appropriate medical qualifications and

if:

(A) at the time of the intrusion there was prob-

able cause to believe that a weapon, contraband, or

other evidence of crime was present;

(B) conducted to remove weapons, contraband,

or evidence of crime discovered under subdivisions

(b) or (c)(2)(A) of this rule;

(C) conducted pursuant to Mil. R. Evid.

316(c)(5)(C);

(D) conducted pursuant to a search warrant or

search authorization under Mil. R. Evid. 315; or

(E) conducted pursuant to Mil. R. Evid. 314(h)

based on a reasonable suspicion that the individual

is concealing a weapon, contraband, or evidence of

crime.

(d) Extraction of Body Fluids. Evidence obtained

from nonconsensual extraction of body fluids is ad-

missible if seized pursuant to a search warrant or a

search authorization under Mil. R. Evid. 315. Evi-

dence obtained from nonconsensual extraction of

body fluids made without such a warrant or authori-

zation is admissible, notwithstanding Mil. R. Evid.

315(g), only when probable cause existed at the time

of extraction to believe that evidence of crime would

be found and that the delay necessary to obtain a

search warrant or search authorization could have

resulted in the destruction of the evidence. Evidence

obtained from nonconsensual extraction of body flu-

ids is admissible only when executed in a reasonable

fashion by a person with appropriate medical

qualifications.

(e) Other Intrusive Searches. Evidence obtained

from a nonconsensual intrusive search of the body,

other than searches described in subdivisions (c) or

(d), conducted to locate or obtain weapons, contra-

band, or evidence of crime is admissible only if

obtained pursuant to a search warrant or search au-

thorization under Mil. R. Evid. 315 and conducted in

a reasonable fashion by a person with appropriate

medical qualifications in such a manner so as not to

endanger the health of the person to be searched.

Discussion

Compelling a person to ingest substances for the purposes of

locating the property described above or to compel the bodily

elimination of such property is a search within the meaning of

this section.

(f) Intrusions for Valid Medical Purposes. Evidence

or contraband obtained in the course of a medical

examination or an intrusion conducted for a valid

medical purpose is admissible. Such an examination

or intrusion may not, for the purpose of obtaining

evidence or contraband, exceed what is necessary

for the medical purpose.

Discussion

Nothing in this rule will be deemed to interfere with the lawful

authority of the Armed Forces to take whatever action may be

necessary to preserve the health of a service member.

(g) Medical Qualifications. The Secretary concerned

may prescribe appropriate medical qualifications for

persons who conduct searches and seizures under

this rule.

Rule 313. Inspections and inventories in the

Armed Forces

(a) General Rule. Evidence obtained from lawful

inspections and inventories in the Armed Forces is

admissible at trial when relevant and not otherwise

inadmissible under these rules. An unlawful weapon,

contraband, or other evidence of a crime discovered

during a lawful inspection or inventory may be

seized and is admissible in accordance with this rule.

(b) Lawful Inspections. An “inspection” is an exam-

ination of the whole or part of a unit, organization,

installation, vessel, aircraft, or vehicle, including an

examination conducted at entrance and exit points,

conducted as an incident of command the primary

purpose of which is to determine and to ensure the

security, military fitness, or good order and disci-

pline of the unit, organization, installation, vessel,

aircraft, or vehicle. Inspections must be conducted in

a reasonable fashion and, if applicable, must comply

with Mil. R. Evid. 312. Inspections may utilize any

reasonable natural or technological aid and may be

conducted with or without notice to those inspected.

UPDATED MILITARY RULES OF EVIDENCE

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12

(1) Purpose of Inspections. An inspection may

include, but is not limited to, an examination to

determine and to ensure that any or all of the fol-

lowing requirements are met: that the command is

properly equipped, functioning properly, maintaining

proper standards of readiness, sea or airworthiness,

sanitation and cleanliness; and that personnel are

present, fit, and ready for duty. An order to produce

body fluids, such as urine, is permissible in accord-

ance with this rule.

(2) Searches for Evidence. An examination made

for the primary purpose of obtaining evidence for

use in a trial by court-martial or in other disciplinary

proceedings is not an inspection within the meaning

of this rule.

(3) Examinations to Locate and Confiscate Weap-

ons or Contraband.

(A) An inspection may include an examination

to locate and confiscate unlawful weapons and other

contraband provided that the criteria set forth in sub-

division (b)(3)(B) are not implicated.

(B) The prosecution must prove by clear and

convincing evidence that the examination was an

inspection within the meaning of this rule if a pur-

pose of an examination is to locate weapons or con-

traband, and if:

(i) the examination was directed immediately

following a report of a specific offense in the unit,

organization, installation, vessel, aircraft, or vehicle

and was not previously scheduled;

(ii) specific individuals are selected for ex-

amination; or

(iii) persons examined are subjected to sub-

stantially different intrusions during the same

examination.

(c) Lawful Inventories. An “inventory” is a reasona-

ble examination, accounting, or other control meas-

ure used to account for or control property, assets, or

other resources. It is administrative and not

prosecutorial in nature, and if applicable, the inven-

tory must comply with Mil. R. Evid. 312. An exami-

nation made for the primary purpose of obtaining

evidence for use in a trial by court-martial or in

other disciplinary proceedings is not an inventory

within the meaning of this rule.

Rule 314. Searches not requiring probable

cause

(a) General Rule. Evidence obtained from reasona-

ble searches not requiring probable cause is admissi-

ble at trial when relevant and not otherwise

inadmissible under these rules or the Constitution of

the United States as applied to members of the

Armed Forces.

(b) Border Searches. Evidence from a border search

for customs or immigration purposes authorized by a

federal statute is admissible.

(c) Searches Upon Entry to or Exit from United

States Installations, Aircraft, and Vessels Abroad. In

addition to inspections under Mil. R. Evid. 313(b),

evidence is admissible when a commander of a

United States military installation, enclave, or air-

craft on foreign soil, or in foreign or international

airspace, or a United States vessel in foreign or

international waters, has authorized appropriate per-

sonnel to search persons or the property of such

persons upon entry to or exit from the installation,

enclave, aircraft, or vessel to ensure the security,

military fitness, or good order and discipline of the

command. A search made for the primary purpose of

obtaining evidence for use in a trial by court-martial

or other disciplinary proceeding is not authorized by

subdivision (c).

Discussion

Searches under subdivision (c) may not be conducted at a time or

in a manner contrary to an express provision of a treaty or

agreement to which the United States is a party; however, failure

to comply with a treaty or agreement does not render a search

unlawful within the meaning of Mil. R. Evid. 311.

(d) Searches of Government Property. Evidence

resulting from a search of government property

without probable cause is admissible under this rule

unless the person to whom the property is issued or

assigned has a reasonable expectation of privacy

therein at the time of the search. Normally a person

does not have a reasonable expectation of privacy in

government property that is not issued for personal

use. Wall or floor lockers in living quarters issued

for the purpose of storing personal possessions nor-

mally are issued for personal use, but the determina-

tion as to whether a person has a reasonable

expectation of privacy in government property is-

sued for personal use depends on the facts and cir-

cumstances at the time of the search.

UPDATED MILITARY RULES OF EVIDENCE

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13

(e) Consent Searches.

(1) General Rule. Evidence of a search conducted

without probable cause is admissible if conducted

with lawful consent.

(2) Who May Consent. A person may consent to a

search of his or her person or property, or both,

unless control over such property has been given to

another. A person may grant consent to search prop-

erty when the person exercises control over that

property.

Discussion

Where a co-occupant of property is physically present at the time

of the requested search and expressly states his refusal to consent

to the search, a warrantless search is unreasonable as to that co-

occupant and evidence from the search is inadmissible as to that

co-occupant. Georgia v. Randolph, 547 U.S. 103 (2006).

(3) Scope of Consent. Consent may be limited in

any way by the person granting consent, including

limitations in terms of time, place, or property, and

may be withdrawn at any time.

(4) Voluntariness. To be valid, consent must be

given voluntarily. Voluntariness is a question to be

determined from all the circumstances. Although a

person’s knowledge of the right to refuse to give

consent is a factor to be considered in determining

voluntariness, the prosecution is not required to

demonstrate such knowledge as a prerequisite to es-

tablishing a voluntary consent. Mere submission to

the color of authority of personnel performing law

enforcement duties or acquiescence in an announced

or indicated purpose to search is not a voluntary

consent.

(5) Burden and Standard of Proof. The prosecu-

tion must prove consent by clear and convincing

evidence. The fact that a person was in custody

while granting consent is a factor to be considered in

determining the voluntariness of consent, but it does

not affect the standard of proof.

(f) Searches Incident to a Lawful Stop.

(1) Lawfulness. A stop is lawful when conducted

by a person authorized to apprehend under R.C.M.

302(b) or others performing law enforcement duties

and when the person making the stop has informa-

tion or observes unusual conduct that leads him or

her reasonably to conclude in light of his or her

experience that criminal activity may be afoot. The

stop must be temporary and investigatory in nature.

(2) Stop and Frisk. Evidence is admissible if

seized from a person who was lawfully stopped and

who was frisked for weapons because he or she was

reasonably suspected to be armed and dangerous.

Contraband or evidence that is located in the process

of a lawful frisk may be seized.

Discussion

Subdivision (f)(2) requires that the official making the stop have a

reasonable suspicion based on specific and articulable facts that

the person being frisked is armed and dangerous. Officer safety is

a factor, and the officer need not be absolutely certain that the

individual detained is armed for the purposes of frisking or pat-

ting down that person’s outer clothing for weapons. The test is

whether a reasonably prudent person in similar circumstances

would be warranted in a belief that his or her safety was in

danger. The purpose of a frisk is to search for weapons or other

dangerous items, including but not limited to: firearms, knives,

needles, or razor blades. A limited search of outer clothing for

weapons serves to protect both the officer and the public; there-

fore, a frisk is reasonable under the Fourth Amendment.

(3) Vehicles. Evidence is admissible if seized in

the course of a search for weapons in the areas of

the passenger compartment of a vehicle in which a

weapon may be placed or hidden, so long as the

person lawfully stopped is the driver or a passenger

and the official who made the stop has a reasonable

suspicion that the person stopped is dangerous and

may gain immediate control of a weapon.

Discussion

The scope of the search is similar to the ’stop and frisk’ defined

in subdivision (f)(2) of this rule. During the search for weapons,

the official may seize any item that is immediately apparent as

contraband or as evidence related to the offense serving as the

basis for the stop. As a matter of safety, the official may, after

conducting a lawful stop of a vehicle, order the driver and any

passengers out of the car without any additional suspicion or

justification.

(g) Searches Incident to Apprehension.

(1) General Rule. Evidence is admissible if

seized in a search of a person who has been lawfully

apprehended or if seized as a result of a reasonable

protective sweep.

(2) Search for Weapons and Destructible Evi-

dence. A lawful search incident to apprehension may

include a search for weapons or destructible evi-

dence in the area within the immediate control of a

person who has been apprehended. ’Immediate con-

trol’ means that area in which the individual search-

UPDATED MILITARY RULES OF EVIDENCE

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14

ing could reasonably believe that the person

apprehended could reach with a sudden movement

to obtain such property.

(3) Protective Sweep for Other Persons.

(A) Area of Potential Immediate Attack. Ap-

prehending officials may, incident to apprehension,

as a precautionary matter and without probable

cause or reasonable suspicion, look in closets and

other spaces immediately adjoining the place of ap-

prehension from which an attack could be immedi-

ately launched.

(B) Wider Protective Sweep. When an appre-

hension takes place at a location in which another

person might be present who might endanger the

apprehending officials or others in the area of the

apprehension, a search incident to arrest may law-

fully include a reasonable examination of those

spaces where a person might be found. Such a rea-

sonable examination is lawful under subdivision (g)

if the apprehending official has a reasonable suspi-

cion based on specific and articulable facts that the

area to be examined harbors an individual posing a

danger to those in the area of the apprehension.

(h) Searches within Jails, Confinement Facilities, or

Similar Facilities. Evidence obtained from a search

within a jail, confinement facility, or similar facility

is admissible even if conducted without probable

cause provided that it was authorized by persons

with authority over the institution.

(i) Emergency Searches to Save Life or for Related

Purposes. Evidence obtained from emergency

searches of persons or property conducted to save

life, or for a related purpose, is admissible provided

that the search was conducted in a good faith effort

to render immediate medical aid, to obtain informa-

tion that will assist in the rendering of such aid, or

to prevent immediate or ongoing personal injury.

(j) Searches of Open Fields or Woodlands. Evi-

dence obtained from a search of an open field or

woodland is admissible provided that the search was

not unlawful within the meaning of Mil. R. Evid.

311.

Rule 315. Probable cause searches

(a) General rule. Evidence obtained from reasona-

ble searches conducted pursuant to a search warrant

or search authorization, or under the exigent circum-

stances described in this rule, is admissible at trial

when relevant and not otherwise inadmissible under

these rules or the Constitution of the United States

as applied to members of the Armed Forces.

Discussion

Although military personnel should adhere to procedural guidance

regarding the conduct of searches, violation of such procedural

guidance does not render evidence inadmissible unless the search

is unlawful under these rules or the Constitution of the United

States as applied to members of the Armed Forces. For example,

if the person whose property is to be searched is present during a

search conducted pursuant to a search authorization granted under

this rule, the person conducting the search should notify him or

her of the fact of authorization and the general substance of the

authorization. Such notice may be made prior to or contem-

poraneously with the search. Property seized should be invento-

ried at the time of a seizure or as soon thereafter as practicable. A

copy of the inventory should be given to a person from whose

possession or premises the property was taken. Failure to provide

notice, make an inventory, furnish a copy thereof, or otherwise

comply with this guidance does not render a search or seizure

unlawful within the meaning of Mil. R. Evid. 311.

(b) Definitions. As used in these rules:

(1) “Search authorization” means express permis-

sion, written or oral, issued by competent military

authority to search a person or an area for specified

property or evidence or for a specific person and to

seize such property, evidence, or person. It may con-

tain an order directing subordinate personnel to con-

duct a search in a specified manner.

(2) “Search warrant” means express permission to

search and seize issued by competent civilian

authority.

(c) Scope of Search Authorization. A search authori-

zation may be valid under this rule for a search of:

(1) the physical person of anyone subject to mili-

tary law or the law of war wherever found;

(2) military property of the United States or of

nonappropriated fund activities of an Armed force of

the United States wherever located;

(3) persons or property situated on or in a mili-

tary installation, encampment, vessel, aircraft, vehi-

cle, or any other location under military control,

wherever located; or

(4) nonmilitary property within a foreign

country.

Discussion

If nonmilitary property within a foreign country is owned, used,

occupied by, or in the possession of an agency of the United

States other than the Department of Defense, a search should be

conducted in coordination with an appropriate representative of

the agency concerned, although failure to obtain such coordina-

UPDATED MILITARY RULES OF EVIDENCE

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15

tion would not render a search unlawful within the meaning of

Mil. R. Evid. 311. If other nonmilitary property within a foreign

country is to be searched, the search should be conducted in

accordance with any relevant treaty or agreement or in coordina-

tion with an appropriate representative of the foreign country,

although failure to obtain such coordination or noncompliance

with a treaty or agreement would not render a search unlawful

within the meaning of Mil. R. Evid. 311.

(d) Who May Authorize. A search authorization

under this rule is valid only if issued by an impartial

individual in one of the categories set forth in subdi-

visions (d)(1) and (d)(2). An otherwise impartial

authorizing official does not lose impartiality merely

because he or she is present at the scene of a search

or is otherwise readily available to persons who may

seek the issuance of a search authorization; nor does

such an official lose impartial character merely be-

cause the official previously and impartially author-

ized investigative activities when such previous

authorization is similar in intent or function to a

pretrial authorization made by the United States dis-

trict courts.

(1) Commander. A commander or other person

serving in a position designated by the Secretary

concerned as either a position analogous to an offi-

cer in charge or a position of command, who has

control over the place where the property or person

to be searched is situated or found, or, if that place

is not under military control, having control over

persons subject to military law or the law of war; or

(2) Military Judge or Magistrate. A military

judge or magistrate if authorized under regulations

prescribed by the Secretary of Defense or the Secre-

tary concerned.

(e) Who May Search.

(1) Search Authorization. Any commissioned of-

ficer, warrant officer, petty officer, noncommis-

sioned officer, and, when in the execution of guard

or police duties, any criminal investigator, member

of the Air Force security forces, military police, or

shore patrol, or person designated by proper author-

ity to perform guard or police duties, or any agent of

any such person, may conduct or authorize a search

when a search authorization has been granted under

this rule or a search would otherwise be proper

under subdivision (g).

(2) Search Warrants. Any civilian or military

criminal investigator authorized to request search

warrants pursuant to applicable law or regulation is

authorized to serve and execute search warrants. The

execution of a search warrant affects admissibility

only insofar as exclusion of evidence is required by

the Constitution of the United States or an applica-

ble federal statute.

(f) Basis for Search Authorizations.

(1) Probable Cause Requirement. A search au-

thorization issued under this rule must be based

upon probable cause.

(2) Probable Cause Determination. Probable

cause to search exists when there is a reasonable

belief that the person, property, or evidence sought

is located in the place or on the person to be sear-

ched. A search authorization may be based upon

hearsay evidence in whole or in part. A determina-

tion of probable cause under this rule will be based

upon any or all of the following:

(A) written statements communicated to the

authorizing official;

(B) oral statements communicated to the

authorizing official in person, via telephone, or by

other appropriate means of communication; or

(C) such information as may be known by the

authorizing official that would not preclude the offi-

cer from acting in an impartial fashion. The Secre-

tary of Defense or the Secretary concerned may

prescribe additional requirements through regulation.

(g) Exigencies. Evidence obtained from a probable

cause search is admissible without a search warrant

or search authorization when there is a reasonable

belief that the delay necessary to obtain a search

warrant or search authorization would result in the

removal, destruction, or concealment of the property

or evidence sought. Military operational necessity

may create an exigency by prohibiting or preventing

communication with a person empowered to grant a

search authorization.

Rule 316. Seizures

(a) General rule. Evidence obtained from reasona-

ble seizures is admissible at trial when relevant and

not otherwise inadmissible under these rules or the

Constitution of the United States as applied to mem-

bers of the Armed Forces.

(b) Apprehension. Apprehension is governed by

R.C.M. 302.

(c) Seizure of Property or Evidence.

(1) Based on Probable Cause. Evidence is admis-

sible when seized based on a reasonable belief that

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16

the property or evidence is an unlawful weapon,

contraband, evidence of crime, or might be used to

resist apprehension or to escape.

(2) Abandoned Property. Abandoned property

may be seized without probable cause and without a

search warrant or search authorization. Such seizure

may be made by any person.

(3) Consent. Property or evidence may be seized

with consent consistent with the requirements appli-

cable to consensual searches under Mil. R. Evid.

314.

(4) Government Property. Government property

may be seized without probable cause and without a

search warrant or search authorization by any person

listed in subdivision (d), unless the person to whom

the property is issued or assigned has a reasonable

expectation of privacy therein, as provided in Mil.

R. Evid. 314(d), at the time of the seizure.

(5) Other Property. Property or evidence not in-

cluded in subdivisions (c)(1)-(4) may be seized for

use in evidence by any person listed in subdivision

(d) if:

(A) Authorization. The person is authorized to

seize the property or evidence by a search warrant or

a search authorization under Mil. R. Evid. 315;

(B) Exigent Circumstances. The person has

probable cause to seize the property or evidence and

under Mil. R. Evid. 315(g) a search warrant or

search authorization is not required; or

(C) Plain View. The person while in the course

of otherwise lawful activity observes in a reasonable

fashion property or evidence that the person has

probable cause to seize.

(6) Temporary Detention. Nothing in this rule

prohibits temporary detention of property on less

than probable cause when authorized under the Con-

stitution of the United States.

(d) Who May Seize. Any commissioned officer,

warrant officer, petty officer, noncommissioned offi-

cer, and, when in the execution of guard or police

duties, any criminal investigator, member of the Air

Force security forces, military police, or shore pa-

trol, or individual designated by proper authority to

perform guard or police duties, or any agent of any

such person, may seize property pursuant to this

rule.

(e) Other Seizures. Evidence obtained from a sei-

zure not addressed in this rule is admissible pro-

vided that its seizure was permissible under the

Constitution of the United States as applied to mem-

bers of the Armed Forces.

Rule 317. Interception of wire and oral

communications

(a) General rule. Wire or oral communications con-

stitute evidence obtained as a result of an unlawful

search or seizure within the meaning of Mil. R.

Evid. 311 when such evidence must be excluded

under the Fourth Amendment to the Constitution of

the United States as applied to members of the

Armed Forces or if such evidence must be excluded

under a federal statute applicable to members of the

Armed Forces.

(b) When Authorized by Court Order Evidence from

the interception of wire or oral communications is

admissible when authorized pursuant to an applica-

tion to a federal judge of competent jurisdiction

under the provisions of a federal statute.

Discussion

Pursuant to 18 U.S.C. §2516(1), the Attorney General, Deputy

Attorney General, Associate Attorney General, or any Assistant

Attorney General, any acting Assistant Attorney General, or any

Deputy Assistant Attorney General or acting Deputy Assistant

Attorney General in the Criminal Division or National Security

Division specially designated by the Attorney General, may au-

thorize an application to a Federal judge of competent jurisdiction

for, and such judge may grant in conformity with 18 U.S.C.

§2518, an order authorizing or approving the interception of wire

or oral communications by the Federal Bureau of Investigation, or

a Federal agency having responsibility for the investigation of the

offense as to which the application is made, for purposes of

obtaining evidence concerning the offenses enumerated in 18

U.S.C. §2516(1), to the extent such offenses are punishable under

the Uniform Code of Military Justice.

(c) Regulations. Notwithstanding any other provi-

sion of these rules, evidence obtained by members

of the Armed Forces or their agents through inter-

ception of wire or oral communications for law en-

forcement purposes is not admissible unless such

interception:

(1) takes place in the United States and is author-

ized under subdivision (b);

(2) takes place outside the United States and is

authorized under regulations issued by the Secretary

of Defense or the Secretary concerned; or

(3) is authorized under regulations issued by

the

UPDATED MILITARY RULES OF EVIDENCE

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17

Secretary of Defense or the Secretary concerned and

is not unlawful under applicable federal statutes.

Rule 321. Eyewitness identification

(a) General rule. Testimony concerning a relevant

out-of-court identification by any person is admissi-

ble, subject to an appropriate objection under this

rule, if such testimony is otherwise admissible under

these rules. The witness making the identification

and any person who has observed the previous iden-

tification may testify concerning it. When in testi-

mony a witness identifies the accused as being, or

not being, a participant in an offense or makes any

other relevant identification concerning a person in

the courtroom, evidence that on a previous occasion

the witness made a similar identification is admissi-

ble to corroborate the witness’s testimony as to iden-

tity even if the credibility of the witness has not

been attacked directly, subject to appropriate objec-

tion under this rule.

(b) When Inadmissible. An identification of the ac-

cused as being a participant in an offense, whether

such identification is made at the trial or otherwise,

is inadmissible against the accused if:

(1) The identification is the result of an unlawful

lineup or other unlawful identification process, as

defined in subdivision (c), conducted by the United

States or other domestic authorities and the accused

makes a timely motion to suppress or an objection to

the evidence under this rule; or

(2) Exclusion of the evidence is required by the

Due Process Clause of the Fifth Amendment to the

Constitution of the United States as applied to mem-

bers of the Armed Forces. Evidence other than an

identification of the accused that is obtained as a

result of the unlawful lineup or unlawful identifica-

tion process is inadmissible against the accused if

the accused makes a timely motion to suppress or an

objection to the evidence under this rule and if ex-

clusion of the evidence is required under the Consti-

tution of the United States as applied to members of

the Armed Forces.

(c) Unlawful Lineup or Identification Process.

(1) Unreliable. A lineup or other identification

process is unreliable, and therefore unlawful, if the

lineup or other identification process is so suggestive

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

misidentification.

(2) In Violation of Right to Counsel. A lineup is

unlawful if it is conducted in violation of the ac-

cused’s rights to counsel.

(A) Military Lineups. An accused or suspect is

entitled to counsel if, after preferral of charges or

imposition of pretrial restraint under R.C.M. 304 for

the offense under investigation, the accused is re-

quired by persons subject to the code or their agents

to participate in a lineup for the purpose of identifi-

cation. When a person entitled to counsel under this

rule requests counsel, a judge advocate or a person

certified in accordance with Article 27(b) will be

provided by the United States at no expense to the

accused or suspect and without regard to indigency

or lack thereof before the lineup may proceed. The

accused or suspect may waive the rights provided in

this rule if the waiver is freely, knowingly, and intel-

ligently made.

(B) Nonmilitary Lineups. When a person sub-

ject to the code is required to participate in a lineup

for purposes of identification by an official or agent

of the United States, of the District of Columbia, or

of a State, Commonwealth, or possession of the

United States, or any political subdivision of such a

State, Commonwealth, or possession, and the provi-

sions of subdivision (c)(2)(A) do not apply, the per-

son’s entitlement to counsel and the validity of any

waiver of applicable rights will be determined by the

principles of law generally recognized in the trial of

criminal cases in the United States district courts

involving similar lineups.

(d) Motions to Suppress and Objections.

(1) Disclosure. Prior to arraignment, the prosecu-

tion must disclose to the defense all evidence of, or

derived from, a prior identification of the accused as

a lineup or other identification process that it intends

to offer into evidence against the accused at trial.

(2) Time Requirement. When such evidence has

been disclosed, any motion to suppress or objection

under this rule must be made by the defense prior to

submission of a plea. In the absence of such motion

or objection, the defense may not raise the issue at a

later time except as permitted by the military judge

for good cause shown. Failure to so move consti-

tutes a waiver of the motion or objection.

(3) Continuing Duty. If the prosecution intends to

offer such evidence and the evidence was not dis-

closed prior to arraignment, the prosecution must

provide timely notice to the military judge and coun-

sel for the accused. The defense may enter an objec-

UPDATED MILITARY RULES OF EVIDENCE

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18

tion at that time, and the military judge may make

such orders as are required in the interests of justice.

(4) Specificity. The military judge may require

the defense to specify the grounds upon which the

defense moves to suppress or object to evidence. If

defense counsel, despite the exercise of due dili-

gence, has been unable to interview adequately those

persons involved in the lineup or other identification

process, the military judge may enter any order re-

quired by the interests of justice, including authori-

zation for the defense to make a general motion to

suppress or a general objection.

(5) Defense Evidence. The defense may present

evidence relevant to the issue of the admissibility of

evidence as to which there has been an appropriate

motion or objection under this rule. An accused may

testify for the limited purpose of contesting the le-

gality of the lineup or identification process giving

rise to the challenged evidence. Prior to the intro-

duction of such testimony by the accused, the de-

fense must inform the military judge that the

testimony is offered under subdivision (d). When the

accused testifies under subdivision (d), the accused

may be cross-examined only as to the matter on

which he or she testifies. Nothing said by the ac-

cused on either direct or cross-examination may be

used against the accused for any purpose other than

in a prosecution for perjury, false swearing, or the

making of a false official statement.

(6) Burden and Standard of Proof. When the de-

fense has raised a specific motion or objection under

subdivision (d)(3), the burden on the prosecution

extends only to the grounds upon which the defense

moved to suppress or object to the evidence.

(A) Right to Counsel.

(i) Initial Violation of Right to Counsel at a

Lineup. When the accused raises the right to pres-

ence of counsel under this rule, the prosecution must

prove by a preponderance of the evidence that coun-

sel was present at the lineup or that the accused,

having been advised of the right to the presence of

counsel, voluntarily and intelligently waived that

right prior to the lineup.

(ii) Identification Subsequent to a Lineup

Conducted in Violation of the Right to Counsel.

When the military judge determines that an identifi-

cation is the result of a lineup conducted without the

presence of counsel or an appropriate waiver, any

later identification by one present at such unlawful

lineup is also a result thereof unless the military

judge determines that the contrary has been shown

by clear and convincing evidence.

(B) Unreliable Identification.

(i) Initial Unreliable Identification. When an

objection raises the issue of an unreliable identifica-

tion, the prosecution must prove by a preponderance

of the evidence that the identification was reliable

under the circumstances.

(ii) Identification Subsequent to an Unreli-

able Identification. When the military judge deter-

mines that an identification is the result of an

unreliable identification, a later identification may

be admitted if the prosecution proves by clear and

convincing evidence that the later identification is

not the result of the inadmissible identification.

(7) Rulings. A motion to suppress or an objection

to evidence made prior to plea under this rule will

be ruled upon prior to plea unless the military judge,

for good cause, orders that it be deferred for deter-

mination at the trial of the general issue or until

after findings, but no such determination will be

deferred if a party’s right to appeal the ruling is

affected adversely. Where factual issues are involved

in ruling upon such motion or objection, the military

judge will state his or her essential findings of fact

on the record.

(e) Effect of Guilty Pleas. Except as otherwise ex-

pressly provided in R.C.M. 910(a)(2), a plea of

guilty to an offense that results in a finding of guilty

waives all issues under this rule with respect to that

offense whether or not raised prior to the plea.

SECTION IV

RELEVANCY AND ITS LIMITS

Rule 401. Test for relevant evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and

(b) the fact is of consequence in determining the

action.

Rule 402. General admissibility of relevant

evidence

(a) Relevant evidence is admissible unless any of

the following provides otherwise:

UPDATED MILITARY RULES OF EVIDENCE

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19

(1) the United States Constitution as it applies to

members of the Armed Forces;

(2) a federal statute applicable to trial by courts-

martial;

(3) these rules; or

(4) this Manual.

(b) Irrelevant evidence is not admissible.

Rule 403. Excluding relevant evidence for

prejudice, confusion, waste of time, or other

reasons

The military judge may exclude relevant evidence

if its probative value is substantially outweighed by

a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the mem-

bers, undue delay, wasting time, or needlessly

presenting cumulative evidence.

Rule 404. Character evidence; crimes or

other acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s char-

acter or character trait is not admissible to prove that

on a particular occasion the person acted in accord-

ance with the character or trait.

(2) Exceptions for an Accused or Victim

(A) The accused may offer evidence of the ac-

cused’s pertinent trait and, if the evidence is admit-

ted, the prosecution may offer evidence to rebut it.

General military character is not a pertinent trait for

the purposes of showing the probability of innocence

of the accused for the following offenses under the

UCMJ:

(i) Articles 120-123a;

(ii) Articles 125-127;

(iii) Articles 129-132;

(iv) Any other offense in which evidence of

general military character of the accused is not rele-

vant to any element of an offense for which the

accused has been charged; or

(v) An attempt or conspiracy to commit one

of the above offenses.

(B) Subject to the limitations in Mil. R. Evid.

412, the accused may offer evidence of an alleged

victim’s pertinent trait, and if the evidence is admit-

ted, the prosecution may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the accused’s same

trait; and

(C) in a homicide or assault case, the prosecu-

tion may offer evidence of the alleged victim’s trait

of peacefulness to rebut evidence that the victim was

the first aggressor.

(3) Exceptions for a Witness. Evidence of a

wit-

ness’s character may be admitted under Mil R. Evid.

607, 608, and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong,

or other act is not admissible to prove a person’s

character in order to show that on a particular occa-

sion the person acted in accordance with the

character.

(2) Permitted Uses; Notice. This evidence may be

admissible for another purpose, such as proving mo-

tive, opportunity, intent, preparation, plan, knowl-

edge, identity, absence of mistake, or lack of

accident. On request by the accused, the prosecution

must:

(A) provide reasonable notice of the general

nature of any such evidence that the prosecution

intends to offer at trial; and

(B) do so before trial – or during trial if the

military judge, for good cause, excuses lack of pre-

trial notice.

Rule 405. Methods of proving character

(a) By Reputation or Opinion. When evidence of a

person’s character or character trait is admissible, it

may be proved by testimony about the person’s rep-

utation or by testimony in the form of an opinion.

On cross-examination of the character witness, the

military judge may allow an inquiry into relevant

specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a per-

son’s character or character trait is an essential ele-

ment of a charge, claim, or defense, the character or

trait may also be proved by relevant specific in-

stances of the person’s conduct.

(c) By Affidavit. The defense may introduce affida-

vits or other written statements of persons other than

the accused concerning the character of the accused.

If the defense introduces affidavits or other written

statements under this subdivision, the prosecution

may, in rebuttal, also introduce affidavits or other

written statements regarding the character of the ac-

cused. Evidence of this type may be introduced by

UPDATED MILITARY RULES OF EVIDENCE

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20

the defense or prosecution only if, aside from being

contained in an affidavit or other written statement,

it would otherwise be admissible under these rules.

(d) Definitions. “Reputation” means the estimation

in which a person generally is held in the commu-

nity in which the person lives or pursues a business

or profession. “Community” in the Armed Forces

includes a post, camp, ship, station, or other military

organization regardless of size.

Rule 406. Habit; routine practice

Evidence of a person’s habit or an organization’s

routine practice may be admitted to prove that on a

particular occasion the person or organization acted

in accordance with the habit or routine practice. The

military judge may admit this evidence regardless of

whether it is corroborated or whether there was an

eyewitness.

Rule 407. Subsequent remedial measures

(a) When measures are taken that would have made

an earlier injury or harm less likely to occur, evi-

dence of the subsequent measures is not admissible

to prove:

(1) negligence;

(2) culpable conduct;

(3) a defect in a product or its design; or

(4) a need for a warning or instruction.

(b) The military judge may admit this evidence for

another purpose, such as impeachment or – if dis-

puted – proving ownership, control, or the feasibility

of precautionary measures.

Rule 408. Compromise offers and

negotiations

(a) Prohibited Uses. Evidence of the following is

not admissible – on behalf of any party – either to

prove or disprove the validity or amount of a dis-

puted claim or to impeach by a prior inconsistent

statement or a contradiction:

(1) furnishing, promising, or offering – or accept-

ing, promising to accept, or offering to accept – a

valuable consideration in order to compromise the

claim; and

(2) conduct or a statement made during compro-

mise negotiations about the claim – except when the

negotiations related to a claim by a public office in

the exercise of its regulatory, investigative, or en-

forcement authority.

(b) Exceptions. The military judge may admit this

evidence for another purpose, such as proving wit-

ness bias or prejudice, negating a contention of un-

due delay, or proving an effort to obstruct a criminal

investigation or prosecution.

Rule 409. Offers to pay medical and similar

expenses

Evidence of furnishing, promising to pay, or of-

fering to pay medical, hospital, or similar expenses

resulting from an injury is not admissible to prove

liability for the injury.

Rule 410. Pleas, plea discussions, and

related statements

(a) Prohibited Uses. Evidence of the following is

not admissible against the accused who made the

plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) any statement made in the course of any judi-

cial inquiry regarding either of the foregoing pleas;

or

(4) any statement made during plea discussions

with the convening authority, staff judge advocate,

trial counsel or other counsel for the government if

the discussions did not result in a guilty plea or they

resulted in a later-withdrawn guilty plea.

(b) Exceptions. The military judge may admit

a

statement described in subdivision (a)(3) or

(a)(4):

(1) when another statement made during the

same

plea or plea discussions has been introduced, if in

fairness the statements ought to be considered to-

gether; or

(2) in a proceeding for perjury or false statement,

if the accused made the statement under oath, on the

record, and with counsel present.

(c) Request for Administrative Disposition. A “state-

ment made during plea discussions” includes a state-

ment made by the accused solely for the purpose of

requesting disposition under an authorized procedure

for administrative action in lieu of trial by court-

martial; “on the record” includes the written state-

ment submitted by the accused in furtherance of

such request.

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Rule 411. Liability Insurance

Evidence that a person was or was not insured

against liability is not admissible to prove whether

the person acted negligently or otherwise wrongful-

ly. The military judge may admit this evidence for

another purpose, such as proving witness bias or

prejudice or proving agency, ownership, or control.

Rule 412. Sex offense cases: The victim’s

sexual behavior or predisposition

(a) Evidence generally inadmissible. The following

evidence is not admissible in any proceeding involv-

ing an alleged sexual offense except as provided in

subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged

victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged vic-

tim’s sexual predisposition.

(b) Exceptions.

(1) In a proceeding, the following evidence is ad-

missible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual be-

havior by the alleged victim offered to prove that a

person other than the accused was the source of

semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual be-

havior by the alleged victim with respect to the

person accused of the sexual misconduct offered by

the accused to prove consent or by the prosecution;

and

(C) evidence the exclusion of which would vi-

olate the constitutional rights of the accused.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under sub-

section (b) must—

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the evidence

and stating the purpose for which it is offered unless

the military judge, for good cause shown, requires a

different time for filing or permits filing during trial;

and

(B) serve the motion on the opposing party and

the military judge and notify the alleged victim or,

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

be closed. At this hearing, the parties may call wit-

nesses, including the alleged victim, and offer rele-

vant evidence. The alleged victim must be afforded

a reasonable opportunity to attend and be heard.

However, the hearing may not be unduly delayed for

this purpose. The right to be heard under this rule

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

before a court- martial composed of a military

judge and members, the military judge shall

conduct the hearing outside the presence of the

members pursuant to Article 39(a). The motion,

related papers, and the record of the hearing must

be sealed in accordance with

R.C.M. 1103A and remain under seal unless the

military judge or an appellate court orders otherwise.

(3) If the military judge determines on the basis

of the hearing described in paragraph (2) of this

subsection that the evidence that the accused seeks

to offer is relevant for a purpose under subsection

(b) and that the probative value of such evidence

outweighs the danger of unfair prejudice to the al-

leged victim’s privacy, such evidence shall be ad-

missible under this rule to the extent an order made

by the military judge specifies evidence that may be

offered and areas with respect to which the alleged

victim may be examined or cross-examined. Such

evidence is still subject to challenge under Mil. R.

Evid. 403.

(d) For purposes of this rule, the term “sexual of-

fense” includes any sexual misconduct punishable

under the Uniform Code of Military Justice, federal

law or state law. “Sexual behavior” includes any

sexual behavior not encompassed by the alleged of-

fense. The term “sexual predisposition” refers to an

alleged victim’s mode of dress, speech, or lifestyle

that does not directly refer to sexual activities or

thoughts but that may have a sexual connotation for

the fact finder.

Rule 413. Similar crimes in sexual offense

cases

(a) Permitted Uses. In a court-martial proceeding

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22

for a sexual offense, the military judge may admit

evidence that the accused committed any other sex-

ual offense. The evidence may be considered on any

matter to which it is relevant.

(b) Disclosure to the Accused. If the prosecution

intends to offer this evidence, the prosecution must

disclose it to the accused, including any witnesses’

statements or a summary of the expected testimony.

The prosecution must do so at least 5 days prior to

entry of pleas or at a later time that the military

judge allows for good cause.

(c) Effect on Other Rules. This rule does not limit

the admission or consideration of evidence under

any other rule.

(d) Definition. As used in this rule, “sexual offense”

means an offense punishable under the Uniform

Code of Military Justice, or a crime under federal or

state law (as “state” is defined in 18 U.S.C. § 513),

involving:

(1) any conduct prohibited by Article 120;

(2) any conduct prohibited by 18 U.S.C. chapter

109A;

(3) contact, without consent, between any part of

the accused’s body, or an object held or controlled

by the accused, and another person’s genitals or

anus;

(4) contact, without consent, between the ac-

cused’s genitals or anus and any part of another

person’s body;

(5) contact with the aim of deriving sexual pleas-

ure or gratification from inflicting death, bodily inju-

ry, or physical pain on another person; or

(6) an attempt or conspiracy to engage in conduct

described in subdivisions (d)(1)-(5).

Rule 414. Similar crimes in child-molestation

cases

(a) Permitted Uses. In a court-martial proceeding in

which an accused is charged with an act of child

molestation, the military judge may admit evidence

that the accused committed any other offense of

child molestation. The evidence may be considered

on any matter to which it is relevant.

(b) Disclosure to the Accused. If the prosecution

intends to offer this evidence, the prosecution must

disclose it to the accused, including witnesses’ state-

ments or a summary of the expected testimony. The

prosecution must do so at least 5 days prior to entry

of pleas or at a later time that the military judge

allows for good cause.

(c) Effect on Other Rules. This rule does not limit

the admission or consideration of evidence under

any other rule.

(d) Definitions. As used in this rule:

(1) “Child” means a person below the age of 16;

and

(2) “Child molestation” means an offense punish-

able under the Uniform Code of Military Justice, or

a crime under federal law or under state law (as

“state” is defined in 18 U.S.C. § 513), that involves:

(A) any conduct prohibited by Article 120 and

committed with a child;

(B) any conduct prohibited by 18 U.S.C. chap-

ter 109A and committed with a child;

(C) any conduct prohibited by 18 U.S.C. chap-

ter 110;

(D) contact between any part of the accused’s

body, or an object held or controlled by the accused,

and a child’s genitals or anus;

(E) contact between the accused’s genitals or

anus and any part of a child’s body;

(F) contact with the aim of deriving sexual

pleasure or gratification from inflicting death, bodily

injury, or physical pain on a child; or

(G) an attempt or conspiracy to engage in con-

duct described in subdivisions (d)(2)(A)-(F).

SECTION V

PRIVILEGES

Rule 501. Privilege in general

(a) A person may not claim a privilege with respect

to any matter except as required by or provided for

in:

(1) the United States Constitution as applied to

members of the Armed Forces;

(2) a federal statute applicable to trials by courts-

martial;

(3) these rules;

(4) this Manual; or

(5) the principles of common law generally rec-

ognized in the trial of criminal cases in the United

States district courts under rule 501 of the Federal

Rules of Evidence, insofar as the application of such

principles in trials by courts-martial is practicable

UPDATED MILITARY RULES OF EVIDENCE

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23

and not contrary to or inconsistent with the Uniform

Code of Military Justice, these rules, or this Manual.

(b) A claim of privilege includes, but is not limited

to, the assertion by any person of a privilege to:

(1) refuse to be a witness;

(2) refuse to disclose any matter;

(3) refuse to produce any object or writing; or

(4) prevent another from being a witness or dis-

closing any matter or producing any object or

writing.

(c) The term “person” includes an appropriate repre-

sentative of the Federal Government, a State, or po-

litical subdivision thereof, or any other entity

claiming to be the holder of a privilege.

(d) Notwithstanding any other provision of these

rules, information not otherwise privileged does not

become privileged on the basis that it was acquired

by a medical officer or civilian physician in a

professional capacity.

Rule 502. Lawyer-client privilege

(a) General Rule. A client has a privilege to refuse

to disclose and to prevent any other person from

disclosing confidential communications made for the

purpose of facilitating the rendition of professional

legal services to the client:

(1) between the client or the client’s representa-

tive and the lawyer or the lawyer’s representative;

(2) between the lawyer and the

lawyer

’s

representative;

(3) by the client or the client’s lawyer to a lawyer

representing another in a matter of common interest;

(4) between representatives of the client or be-

tween the client and a representative of the client; or

(5) between lawyers representing the client.

(b) Definitions. As used in this rule:

(1) “Client” means a person, public officer, cor-

poration, association, organization, or other entity,

either public or private, who receives professional

legal services from a lawyer, or who consults a

lawyer with a view to obtaining professional legal

services from the lawyer.

(2) “Lawyer” means a person authorized, or rea-

sonably believed by the client to be authorized, to

practice law; or a member of the Armed Forces

detailed, assigned, or otherwise provided to repre-

sent a person in a court-martial case or in any mili-

tary investigation or proceeding. The term “lawyer”

does not include a member of the Armed Forces

serving in a capacity other than as a judge advocate,

legal officer, or law specialist as defined in Article

1, unless the member:

(A) is detailed, assigned, or otherwise provided

to represent a person in a court-martial case or in

any military investigation or proceeding;

(B) is authorized by the Armed Forces, or rea-

sonably believed by the client to be authorized, to

render professional legal services to members of the

Armed Forces; or

(C) is authorized to practice law and renders

p

r

o

fe

s

sio

n

al legal

ser

vices

d

uring

o

f

f-d

ut

y

employment.

(3) “Lawyer’s representative” means a person

employed by or assigned to assist a lawyer in pro-

viding professional legal services.

(4) A communication is “confidential” if not in-

tended to be disclosed to third persons other than

those to whom disclosure is in furtherance of the

rendition of professional legal services to the client

or those reasonably necessary for the transmission of

the communication.

(c) Who May Claim the Privilege. The privilege

may be claimed by the client, the guardian or con-

servator of the client, the personal representative of

a deceased client, or the successor, trustee, or similar

representative of a corporation, association, or other

organization, whether or not in existence. The law-

yer or the lawyer’s representative who received the

communication may claim the privilege on behalf of

the client. The authority of the lawyer to do so is

presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule

under any of the following circumstances:

(1) Crime or Fraud. If the communication clearly

contemplated the future commission of a fraud or

crime or if services of the lawyer were sought or

obtained to enable or aid anyone to commit or plan

to commit what the client knew or reasonably

should have known to be a crime or fraud;

(2) Claimants through Same Deceased Client. As

to a communication relevant to an issue between

parties who claim through the same deceased client,

regardless of whether the claims are by testate or

intestate succession or by inter vivos transaction;

(3) Breach of Duty by Lawyer or Client. As to a

communication relevant to an issue of breach of

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

24

duty by the lawyer to the client or by the client to

the lawyer;

(4) Document Attested by the Lawyer. As to a

communication relevant to an issue concerning an

attested document to which the lawyer is an attesting

witness; or

(5) Joint Clients. As to a communication relevant

to a matter of common interest between two or more

clients if the communication was made by any of

them to a lawyer retained or consulted in common,

when offered in an action between any of the

clients.

Rule 503. Communications to clergy

(a) General Rule. A person has a privilege to refuse

to disclose and to prevent another from disclosing a

confidential communication by the person to a cler-

gyman or to a clergyman’s assistant, if such commu-

nication is made either as a formal act of religion or

as a matter of conscience.

(b) Definitions. As used in this rule:

(1) “Clergyman” means a minister, priest, rabbi,

chaplain, or other similar functionary of a religious

organization, or an individual reasonably believed to

be so by the person consulting the clergyman.

(2) “Clergyman’s assistant” means a person em-

ployed by or assigned to assist a clergyman in his

capacity as a spiritual advisor.

(3) A communication is “confidential” if made to

a clergyman in the clergyman’s capacity as a spirit-

ual adviser or to a clergyman’s assistant in the as-

sistant’s official capacity and is not intended to be

disclosed to third persons other than those to whom

disclosure is in furtherance of the purpose of the

communication or to those reasonably necessary for

the transmission of the communication.

(c) Who May Claim the Privilege. The privilege

may be claimed by the person, guardian, or conser-

vator, or by a personal representative if the person is

deceased. The clergyman or clergyman’s assistant

who received the communication may claim the

privilege on behalf of the person. The authority of

the clergyman or clergyman’s assistant to do so is

presumed in the absence of evidence to the contrary.

Rule 504. Husband-wife privilege

(a) Spousal Incapacity. A person has a privilege to

refuse to testify against his or her spouse.

(b) Confidential Communication Made During the

Marriage.

(1) General Rule. A person has a privilege during

and after the marital relationship to refuse to dis-

close, and to prevent another from disclosing, any

confidential communication made to the spouse of

the person while they were husband and wife and

not separated as provided by law.

(2) Definition. As used in this rule, a communica-

tion is “confidential” if made privately by any per-

son to the spouse of the person and is not intended

to be disclosed to third persons other than those

reasonably necessary for transmission of the

communication.

(3) Who May Claim the Privilege. The privilege

may be claimed by the spouse who made the com-

munication or by the other spouse on his or her

behalf. The authority of the latter spouse to do so is

presumed in the absence of evidence of a waiver.

The privilege will not prevent disclosure of the com-

munication at the request of the spouse to whom the

communication was made if that spouse is an ac-

cused regardless of whether the spouse who made

the communication objects to its disclosure.

(c) Exceptions.

(1) To Spousal Incapacity Only. There is no priv-

ilege under subdivision (a) when, at the time the

testimony of one of the parties to the marriage is to

be introduced in evidence against the other party, the

parties are divorced or the marriage has been

annulled.

(2) To Spousal Incapacity and Confidential Com-

munications. There is no privilege under subdivi-

sions (a) or (b):

(A) In proceedings in which one spouse is

charged with a crime against the person or property

of the other spouse or a child of either, or with a

crime against the person or property of a third per-

son committed in the course of committing a crime

against the other spouse;

(B) When the marital relationship was entered

into with no intention of the parties to live together

as spouses, but only for the purpose of using the

purported marital relationship as a sham, and with

respect to the privilege in subdivision (a), the rela-

tionship remains a sham at the time the testimony or

statement of one of the parties is to be introduced

against the other; or with respect to the privilege in

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

25

subdivision (b), the relationship was a sham at the

time of the communication; or

(C) In proceedings in which a spouse is

charged, in accordance with Article 133 or 134, with

importing the other spouse as an alien for prostitu-

tion or other immoral purpose in violation of 18

U.S.C. §1328; with transporting the other spouse in

interstate commerce for immoral purposes or other

offense in violation of 18 U.S.C. §§ 2421-2424; or

with violation of such other similar statutes under

which such privilege may not be claimed in the trial

of criminal cases in the United States district courts.

(D) Where both parties have been substantial

participants in illegal activity, those communications

between the spouses during the marriage regarding

the illegal activity in which they have jointly partici-

pated are not marital communications for purposes

of the privilege in subdivision (b) and are not enti-

tled to protection under the privilege in subdivision

(b).

(d) Definitions. As used in this rule:

(1) “A child of either” means a biological child,

adopted child, or ward of one of the spouses and

includes a child who is under the permanent or tem-

porary physical custody of one of the spouses, re-

gardless of the existence of a legal parent-child

relationship. For purposes of this rule only, a child

is:

(A) an individual under the age of 18;

or

(B) an individual with a mental handicap who

functions under the age of 18.

(2) “Temporary physical custody” means a parent

has entrusted his or her child with another. There is

no minimum amount of time necessary to establish

temporary physical custody, nor is a written agree-

ment required. Rather, the focus is on the parent’s

agreement with another for assuming parental re-

sponsibility for the child. For example, temporary

physical custody may include instances where a par-

ent entrusts another with the care of their child for

recurring care or during absences due to temporary

duty or deployments.

Rule 505. Classified information

(a) General Rule. Classified information must be

protected and is privileged from disclosure if disclo-

sure would be detrimental to the national security.

Under no circumstances may a military judge order

the release of classified information to any person

not authorized to receive such information. The Sec-

retary of Defense may prescribe security procedures

for protection against the compromise of classified

information submitted to courts-martial and appel-

late authorities.

(b) Definitions. As used in this rule:

(1) “Classified information” means any informa-

tion or material that has been determined by the

United States Government pursuant to an executive

order, statute, or regulations, to require protection

against unauthorized disclosure for reasons of na-

tional security, and any restricted data, as defined in

42 U.S.C. §2014(y).

(2) “National security” means the national de-

fense and foreign relations of the United States.

(3) “In camera hearing” means a session

under

Article 39(a) from which the public is excluded.

(4) “In camera review” means an inspection of

documents or other evidence conducted by the mili-

tary judge alone in chambers and not on the record.

(5) “Ex parte” means a discussion between the

military judge and either the defense counsel or

prosecution, without the other party or the public

present. This discussion can be on or off the record,

depending on the circumstances. The military judge

will grant a request for an ex parte discussion or

hearing only after finding that such discussion or

hearing is necessary to protect classified information

or other good cause. Prior to granting a request from

one party for an ex parte discussion or hearing, the

military judge must provide notice to the opposing

party on the record. If the ex parte discussion is

conducted off the record, the military judge should

later state on the record that such ex parte discussion

took place and generally summarize the subject mat-

ter of the discussion, as appropriate.

(c) Access to Evidence. Any information admitted

into evidence pursuant to any rule, procedure, or

order by the military judge must be provided to the

accused.

(d) Declassification. Trial counsel should, when

practicable, seek declassification of evidence that

may be used at trial, consistent with the require-

ments of national security. A decision not to declas-

sify evidence under this section is not subject to

review by a military judge or upon appeal.

(e) Action Prior to Referral of Charges

(1) Prior to referral of charges, upon a showing

by the accused that the classified information sought

UPDATED MILITARY RULES OF EVIDENCE

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26

is relevant and necessary to an element of the of-

fense or a legally cognizable defense, the convening

authority must respond in writing to a request by the

accused for classified information if the privilege in

this rule is claimed for such information. In response

to such a request, the convening authority may:

(A) delete specified items of classified infor-

mation from documents made available to the

accused;

(B) substitute a portion or summary of the in-

formation for such classified documents;

(C) substitute a statement admitting relevant

facts that the classified information would tend to

prove;

(D) provide the document subject to conditions

that will guard against the compromise of the infor-

mation disclosed to the accused; or

(E) withhold disclosure if actions under (A)

through (D) cannot be taken without causing identi-

fiable damage to the national security.

(2) An Article 32 investigating officer may not

rule on any objection by the accused to the release

of documents or information protected by this rule.

(3) Any objection by the accused to the withhold-

ing of information or to the conditions of disclosure

must be raised through a motion for appropriate re-

lief at a pretrial conference.

(f) Actions after Referral of Charges.

(1) Pretrial Conference. At any time after referral

of charges, any party may move for a pretrial con-

ference under Article 39(a) to consider matters relat-

ing to classified information that may arise in

connection with the trial. Following such a motion,

or when the military judge recognizes the need for

such conference, the military judge must promptly

hold a pretrial conference under Article 39(a).

(2) Ex Parte Permissible. Upon request by either

party and with a showing of good cause, the military

judge must hold such conference ex parte to the

extent necessary to protect classified information

from disclosure.

(3) Matters to be Established at Pretrial Confer-

ence.

(A) Timing of Subsequent Actions. At the pre-

trial conference, the military judge must establish

the timing of:

(i) requests for

discovery;

(ii) the provision of notice required by sub-

division (i) of this rule; and

(iii) established by subdivision (j) of this

rule.

(B) Other Matters. At the pretrial conference,

the military judge may also consider any matter that

relates to classified information or that may promote

a fair and expeditious trial.

(4) Convening Authority Notice and Action. If a

claim of privilege has been made under this rule

with respect to classified information that apparently

contains evidence that is relevant and necessary to

an element of the offense or a legally cognizable

defense and is otherwise admissible in evidence in

the court-martial proceeding, the matter must be

reported to the convening authority. The convening

authority may:

(A) institute action to obtain the classified in-

formation for the use by the military judge in mak-

ing a determination under subdivision (j);

(B) dismiss the charges;

(C) dismiss the charges or specifications or

both to which the information relates; or

(D) take such other action as may be required

in the interests of justice.

(5) Remedies. If, after a reasonable period of

time, the information is not provided to the military

judge in circumstances where proceeding with the

case without such information would materially prej-

udice a substantial right of the accused, the military

judge must dismiss the charges or specifications or

both to which the classified information relates.

(g) Protective Orders. Upon motion of the trial

counsel, the military judge must issue an order to

protect against the disclosure of any classified infor-

mation that has been disclosed by the United States

to any accused in any court-martial proceeding or

that has otherwise been provided to, or obtained by,

any such accused in any such court-martial proceed-

ing. The terms of any such protective order may

include, but are not limited to, provisions.

(1) prohibiting the disclosure of the information

except as authorized by the military judge;

(2) requiring storage of material in a manner ap-

propriate for the level of classification assigned to

the documents to be disclosed;

(3) requiring controlled access to the material

UPDATED MILITARY RULES OF EVIDENCE

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27

during normal business hours and at other times

upon reasonable notice;

(4) mandating that all persons requiring security

clearances will cooperate with investigatory person-

nel in any investigations that are necessary to obtain

a security clearance;

(5) requiring the maintenance of logs regarding

access by all persons authorized by the military

judge to have access to the classified information in

connection with the preparation of the defense;

(6) regulating the making and handling of notes

taken from material containing classified informa-

tion; or

(7) requesting the convening authority to author-

ize the assignment of government security personnel

and the provision of government storage facilities.

(h) Discovery and Access by the Accused.

(1) Limitations.

(A) Government Claim of Privilege. In a court-

martial proceeding in which the government seeks to

delete, withhold, or otherwise obtain other relief

with respect to the discovery of or access to any

classified information, the trial counsel must submit

a declaration invoking the United States’ classified

information privilege and setting forth the damage to

the national security that the discovery of or access

to such information reasonably could be expected to

cause. The declaration must be signed by the head,

or designee, of the executive or military department

or government agency concerned.

(B) Standard for Discovery or Access by the

Accused. Upon the submission of a declaration

under subdivision (h)(1)(A), the military judge may

not authorize the discovery of or access to such

classified information unless the military judge de-

termines that such classified information would be

noncumulative and relevant to a legally cognizable

defense, rebuttal of the prosecution’s case, or to sen-

tencing. If the discovery of or access to such classi-

fied information is authorized, it must be addressed

in accordance with the requirements of subdivision

(h)(2).

(2) Alternatives to Full Discovery.

(A) Substitutions and Other Alternatives. The

military judge, in assessing the accused’s right to

discover or access classified information under sub-

division (h), may authorize the government:

(i) to delete or withhold specified items of

classified information;

(ii) to substitute a summary for classified in-

formation; or

(iii) to substitute a statement admitting rele-

vant facts that the classified information or material

would tend to prove, unless the military judge deter-

mines that disclosure of the classified information

itself is necessary to enable the accused to prepare

for trial.

(B) In Camera Review. The military judge

must, upon the request of the prosecution, conduct

an in camera review of the prosecution’s motion and

any materials submitted in support thereof and must

not disclose such information to the accused.

(C) Action by Military Judge. The military

judge must grant the request of the trial counsel to

substitute a summary or to substitute a statement

admitting relevant facts, or to provide other relief in

accordance with subdivision (h)(2)(A), if the mili-

tary judge finds that the summary, statement, or

other relief would provide the accused with substan-

tially the same ability to make a defense as would

discovery of or access to the specific classified

information.

(3) Reconsideration. An order of a military judge

authorizing a request of the trial counsel to sub-

stitute, summarize, withhold, or prevent access to

classified information under subdivision (h) is not

subject to a motion for reconsideration by the ac-

cused, if such order was entered pursuant to an ex

parte showing under subdivision (h).

(i) Disclosure by the Accused.

(1) Notification to Trial Counsel and Military

Judge. If an accused reasonably expects to disclose,

or to cause the disclosure of, classified information

in any manner in connection with any trial or pre-

trial proceeding involving the prosecution of such

accused, the accused must, within the time specified

by the military judge or, where no time is specified,

prior to arraignment of the accused, notify the trial

counsel and the military judge in writing.

(2) Content of Notice. Such notice must include a

brief description of the classified information.

(3) Continuing Duty to Notify. Whenever the ac-

cused learns of additional classified information the

accused reasonably expects to disclose, or to cause

the disclosure of, at any such proceeding, the ac-

cused must notify trial counsel and the military

UPDATED MILITARY RULES OF EVIDENCE

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28

judge in writing as soon as possible thereafter and

must include a brief description of the classified

information.

(4) Limitation on Disclosure by Accused. The ac-

cused may not disclose, or cause the disclosure of,

any information known or believed to be classified

in connection with a trial or pretrial proceeding

until:

(A) notice has been given under subdivision

(i); and

(B) the government has been afforded a rea-

sonable opportunity to seek a determination pursuant

to the procedure set forth in subdivision (j).

(5) Failure to comply. If the accused fails to com-

ply with the requirements of subdivision (i), the mil-

itary judge:

(A) may preclude disclosure of any classified

information not made the subject of notification; and

(B) may prohibit the examination by the ac-

cused of any witness with respect to any such

information.

(j) Procedure for Use of Classified Information in

Trials and Pretrial Proceedings.

(1) Hearing on Use of Classified

Information.

(A) Motion for Hearing. Within the time speci-

fied by the military judge for the filing of a motion

under this rule, either party may move for a hearing

concerning the use at any proceeding of any classi-

fied information. Upon a request by either party, the

military judge must conduct such a hearing and must

rule prior to conducting any further proceedings.

(B) Request for In Camera Hearing. Any hear-

ing held pursuant to subdivision (j) (or any portion

of such hearing specified in the request of a knowl-

edgeable United States official) must be held in

camera if a knowledgeable United States official

possessing authority to classify information submits

to the military judge a declaration that a public

proceeding may result in the disclosure of classified

information.

(C) Notice to Accused. Before the hearing, trial

counsel must provide the accused with notice of the

classified information that is at issue. Such notice

must identify the specific classified information at

issue whenever that information previously has been

made available to the accused by the United States.

When the United States has not previously made the

information available to the accused in connection

with the case the information may be described by

generic category, in such forms as the military judge

may approve, rather than by identification of the

specific information of concern to the United States.

(D) Standard for Disclosure. Classified infor-

mation is not subject to disclosure under subdivision

(j) unless the information is relevant and necessary

to an element of the offense or a legally cognizable

defense and is otherwise admissible in evidence. In

presentencing proceedings, relevant and material

classified information pertaining to the appropriate-

ness of, or the appropriate degree of, punishment

must be admitted only if no unclassified version of

such information is available.

(E) Written Findings. As to each item of classi-

fied information, the military judge must set forth in

writing the basis for the determination.

(2) Alternatives to Full Disclosure.

(A) Motion by the Prosecution. Upon any de-

termination by the military judge authorizing the dis-

closure of specific classified information under the

procedures established by subdivision (j), the trial

counsel may move that, in lieu of the disclosure of

such specific classified information, the military

judge order:

(i) the substitution for such classified infor-

mation of a statement admitting relevant facts that

the specific classified information would tend to

prove;

(ii) the substitution for such classified infor-

mation of a summary of the specific classified infor-

mation; or

(iii) any other procedure or redaction limit-

ing the disclosure of specific classified information.

(B) Declaration of Damage to National Securi-

ty. The trial counsel may, in connection with a mo-

tion under subdivision (j), submit to the military

judge a declaration signed by the head, or designee,

of the executive or military department or govern-

ment agency concerned certifying that disclosure of

classified information would cause identifiable dam-

age to the national security of the United States and

explaining the basis for the classification of such

information. If so requested by the trial counsel, the

military judge must examine such declaration during

an in camera review.

(C) Hearing. The military judge must hold a

hearing on any motion under subdivision (j). Any

such hearing must be held in camera at the request

UPDATED MILITARY RULES OF EVIDENCE

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29

of a knowledgeable United States official possessing

authority to classify information.

(D) Standard for Use of Alternatives. The mili-

tary judge must grant such a motion of the trial

counsel if the military judge finds that the statement,

summary, or other procedure or redaction will pro-

vide the accused with substantially the same ability

to make his or her defense as would disclosure of

the specific classified information.

(3) Sealing of Records of In Camera Hearings. If

at the close of an in camera hearing under subdivi-

sion (j) (or any portion of a hearing under subdivi-

sion (j) that is held in camera), the military judge

determines that the classified information at issue

may not be disclosed or elicited at the trial or pre-

trial proceeding, the record of such in camera hear-

ing must be sealed in accordance with R.C.M.

1103A and preserved for use in the event of an

appeal. The accused may seek reconsideration of the

military judge’s determination prior to or during

trial.

(4) Remedies.

(A) If the military judge determines that alter-

natives to full disclosure may not be used and the

prosecution continues to object to disclosure of the

information, the military judge must issue any order

that the interests of justice require, including but not

limited to, an order:

(i) striking or precluding all or part of the

testimony of a witness;

(ii) declaring a mistrial;

(iii) finding against the government on any

issue as to which the evidence is relevant and mate-

rial to the defense;

(iv) dismissing the charges, with or without

prejudice; or

(v) dismissing the charges or specifications

or both to which the information relates.

(B) The government may avoid the sanction

for nondisclosure by permitting the accused to dis-

close the information at the pertinent court-martial

proceeding.

(5) Disclosure of Rebuttal Information. Whenever

the military judge determines that classified informa-

tion may be disclosed in connection with a trial or

pretrial proceeding, the military judge must, unless

the interests of fairness do not so require, order the

prosecution to provide the accused with the informa-

tion it expects to use to rebut the classified

information.

(A) Continuing Duty. The military judge may

place the prosecution under a continuing duty to

disclose such rebuttal information.

(B) Sanction for Failure to Comply. If the

prosecution fails to comply with its obligation under

subdivision (j), the military judge:

(i) may exclude any evidence not made the

subject of a required disclosure; and

(ii) may prohibit the examination by the

prosecution of any witness with respect to such

information.

(6) Disclosure at Trial of Previous Statements by

a Witness.

(A) Motion for Production of Statements in

Possession of the Prosecution. After a witness called

by the trial counsel has testified on direct examina-

tion, the military judge, on motion of the accused,

may order production of statements of the witness in

the possession of the prosecution that relate to the

subject matter as to which the witness has testified.

This paragraph does not preclude discovery or asser-

tion of a privilege otherwise authorized.

(B) Invocation of Privilege by the Government.

If the government invokes a privilege, the trial coun-

sel may provide the prior statements of the witness

to the military judge for in camera review to the

extent necessary to protect classified information

from disclosure.

(C) Action by Military Judge. If the military

judge finds that disclosure of any portion of the

statement identified by the government as classified

would be detrimental to the national security in the

degree required to warrant classification under the

applicable Executive Order, statute, or regulation,

that such portion of the statement is consistent with

the testimony of the witness, and that the disclosure

of such portion is not necessary to afford the ac-

cused a fair trial, the military judge must excise that

portion from the statement. If the military judge

finds that such portion of the statement is inconsis-

tent with the testimony of the witness or that its

disclosure is necessary to afford the accused a fair

trial, the military judge must, upon the request of the

trial counsel, consider alternatives to disclosure in

accordance with subdivision (j)(2).

(k) Introduction into Evidence of Classified Infor-

mation.

UPDATED MILITARY RULES OF EVIDENCE

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30

(1) Preservation of Classification Status. Writ-

ings, recordings, and photographs containing classi-

fied information may be admitted into evidence in

court-martial proceedings under this rule without

change in their classification status.

(A) Precautions. The military judge in a trial

by court-martial, in order to prevent unnecessary

disclosure of classified information, may order ad-

mission into evidence of only part of a writing,

recording, or photograph, or may order admission

into evidence of the whole writing, recording, or

photograph with excision of some or all of the clas-

sified information contained therein, unless the

whole ought in fairness be considered.

(B) Classified Information Kept Under Seal.

The military judge must allow classified information

offered or accepted into evidence to remain under

seal during the trial, even if such evidence is dis-

closed in the court-martial proceeding, and may,

upon motion by the government, seal exhibits con-

taining classified information in accordance with

R.C.M. 1103A for any period after trial as necessary

to prevent a disclosure of classified information

when a knowledgeable United States official posses-

sing authority to classify information submits to the

military judge a declaration setting forth the damage

to the national security that the disclosure of such

information reasonably could be expected to cause.

(2) Testimony.

(A) Objection by Trial Counsel. During the ex-

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

previously found to be admissible.

(B) Action by Military Judge. Following an ob-

jection under subdivision (k), the military judge

must take such suitable action to determine whether

the response is admissible as will safeguard against

the compromise of any classified information. Such

action may include requiring trial counsel to provide

the military judge with a proffer of the witness’s

response to the question or line of inquiry and re-

quiring the accused to provide the military judge

with a proffer of the nature of the information

sought to be elicited by the accused. Upon request,

the military judge may accept an ex parte proffer by

trial counsel to the extent necessary to protect classi-

fied information from disclosure.

(3) Closed session. The military judge may, sub-

ject to the requirements of the United States Consti-

tution, exclude the public during that portion of the

presentation of evidence that discloses classified

information.

(l) Record of Trial. If under this rule any informa-

tion is withheld from the accused, the accused ob-

jects to such withholding, and the trial is continued

to an adjudication of guilt of the accused, the entire

unaltered text of the relevant documents as well as

the prosecution’s motion and any materials submit-

ted in support thereof must be sealed in accordance

with R.C.M. 1103A and attached to the record of

trial as an appellate exhibit. Such material must be

made available to reviewing authorities in closed

proceedings for the purpose of reviewing the deter-

mination of the military judge. The record of trial

with respect to any classified matter will be prepared

under R.C.M. 1103(h) and 1104(b)(1)(D).

Discussion

In addition to the Sixth Amendment right of an accused to a

public trial, the Supreme Court has held that the press and general

public have a constitutional right under the First Amendment to

access to criminal trials. United States v. Hershey, 20 M.J. 433,

436 (C.M.A. 1985) (citing Richmond Newspapers, Inc. v. Virgin-

ia, 448 U.S. 555 (1980)). The test that must be met before closure

of a criminal trial to the public is set out in Press-Enterprise Co.

v. Superior Court, 464 U.S. 501 (1984), to wit: the presumption

of openness “may be overcome by an overriding interest based on

findings that closure is essential to preserve higher values and is

narrowly tailored to serve that interest. The military judge must

consider reasonable alternatives to closure and must make ade-

quate findings supporting the closure to aid in review.

Rule 506. Government information other

than classified information

(a) Protection of Government Information. Except

where disclosure is required by a federal statute,

government information is privileged from disclo-

sure if disclosure would be detrimental to the public

interest.

(b) Scope. “Government information” includes offi-

cial communication and documents and other infor-

mation within the custody or control of the Federal

Government. This rule does not apply to classified

information (Mil. R. Evid. 505) or to the identity of

an informant (Mil. R. Evid. 507).

(c) Definitions. As used in this rule:

(1) “In camera hearing” means a session

under

Article 39(a) from which the public is excluded.

UPDATED MILITARY RULES OF EVIDENCE

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31

(2) “In camera review” means an inspection of

documents or other evidence conducted by the mili-

tary judge alone in chambers and not on the record.

(3) “Ex parte” means a discussion between the

military judge and either the defense counsel or

prosecution, without the other party or the public

present. This discussion can be on or off the record,

depending on the circumstances. The military judge

will grant a request for an ex parte discussion or

hearing only after finding that such discussion or

hearing is necessary to protect government informa-

tion or other good cause. Prior to granting a request

from one party for an ex parte discussion or hearing,

the military judge must provide notice to the oppos-

ing party on the record. If the ex parte discussion is

conducted off the record, the military judge should

later state on the record that such ex parte discussion

took place and generally summarize the subject mat-

ter of the discussion, as appropriate.

(d) Who May Claim the Privilege. The privilege

may be claimed by the head, or designee, of the

executive or military department or government

agency concerned. The privilege for records and in-

formation of the Inspector General may be claimed

by the immediate superior of the inspector general

officer responsible for creation of the records or

information, the Inspector General, or any other su-

perior authority. A person who may claim the privi-

lege may authorize a witness or the trial counsel to

claim the privilege on his or her behalf. The author-

ity of a witness or the trial counsel to do so is

presumed in the absence of evidence to the contrary.

(e) Action Prior to Referral of Charges.

(1) Prior to referral of charges, upon a showing

by the accused that the government information

sought is relevant and necessary to an element of the

offense or a legally cognizable defense, the conven-

ing authority must respond in writing to a request by

the accused for government information if the privi-

lege in this rule is claimed for such information. In

response to such a request, the convening authority

may:

(A) delete specified items of government infor-

mation claimed to be privileged from documents

made available to the accused;

(B) substitute a portion or summary of the in-

formation for such documents;

(C) substitute a statement admitting relevant

facts that the government information would tend to

prove;

(D) provide the document subject to conditions

similar to those set forth in subdivision (g) of this

rule; or

(E) withhold disclosure if actions under subdi-

visions (e)(1)(1)-(4) cannot be taken without causing

identifiable damage to the public interest.

(2) Any objection by the accused to withholding

of information or to the conditions of disclosure

must be raised through a motion for appropriate re-

lief at a pretrial conference.

(f) Action After Referral of Charges.

(1) Pretrial Conference. At any time after referral

of charges, any party may move for a pretrial con-

ference under Article 39(a) to consider matters relat-

ing to government information that may arise in

connection with the trial. Following such a motion,

or when the military judge recognizes the need for

such conference, the military judge must promptly

hold a pretrial conference under Article 39(a).

(2) Ex Parte Permissible. Upon request by either

party and with a showing of good cause, the military

judge must hold such conference ex parte to the

extent necessary to protect government information

from disclosure.

(3) Matters to be Established at Pretrial Confer-

ence.

(A) Timing of Subsequent Actions. At the pre-

trial conference, the military judge must establish

the timing of:

(i) requests for discovery;

(ii) the provision of notice required by sub-

division (i) of this rule; and

(iii) the initiation of the procedure estab-

lished by subdivision (j) of this rule.

(B) Other Matters. At the pretrial conference,

the military judge may also consider any matter

which relates to government information or which

may promote a fair and expeditious trial.

(4) Convening Authority Notice and Action. If a

claim of privilege has been made under this rule

with respect to government information that ap-

parently contains evidence that is relevant and nec-

essary to an element of the offense or a legally

cognizable defense and is otherwise admissible in

evidence in the court-martial proceeding, the matter

UPDATED MILITARY RULES OF EVIDENCE

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32

must be reported to the convening authority. The

convening authority may:

(A) institute action to obtain the information

for use by the military judge in making a determina-

tion under subdivision (j);

(B) dismiss the charges;

(C) dismiss the charges or specifications or

both to which the information relates; or

(D) take such other action as may be required

in the interests of justice.

(5) Remedies. If after a reasonable period of time

the information is not provided to the military judge

in circumstances where proceeding with the case

without such information would materially prejudice

a substantial right of the accused, the military judge

must dismiss the charges or specifications or both to

which the information relates.

(g) Protective Orders. Upon motion of the trial

counsel, the military judge must issue an order to

protect against the disclosure of any government in-

formation that has been disclosed by the United

States to any accused in any court-martial proceed-

ing or that has otherwise been provided to, or ob-

tained by, any such accused in any such court-

martial proceeding. The terms of any such protective

order may include, but are not limited to, provisions:

(1) prohibiting the disclosure of the information

except as authorized by the military judge;

(2) requiring storage of the material in a manner

appropriate for the nature of the material to be

disclosed;

(3) requiring controlled access to the material

during normal business hours and at other times

upon reasonable notice;

(4) requiring the maintenance of logs recording

access by persons authorized by the military judge

to have access to the government information in

connection with the preparation of the defense;

(5) regulating the making and handling of notes

taken from material containing government informa-

tion; or

(6) requesting the convening authority to author-

ize the assignment of government security personnel

and the provision of government storage facilities.

(h) Discovery and Access by the Accused.

(1) Limitations.

(A) Government Claim of Privilege. In a court-

martial proceeding in which the government seeks to

delete, withhold, or otherwise obtain other relief

with respect to the discovery of or access to any

government information subject to a claim of privi-

lege, the trial counsel must submit a declaration in-

voking the United States’ government information

privilege and setting forth the detriment to the public

interest that the discovery of or access to such infor-

mation reasonably could be expected to cause. The

declaration must be signed by a knowledgeable

United States official as described in subdivision (d)

of this rule.

(B) Standard for Discovery or Access by the

Accused. Upon the submission of a declaration

under subdivision (h)(1)(A), the military judge may

not authorize the discovery of or access to such

government information unless the military judge

determines that such government information would

be noncumulative, relevant, and helpful to a legally

cognizable defense, rebuttal of the prosecution’s

case, or to sentencing. If the discovery of or access

to such government information is authorized, it

must be addressed in accordance with the require-

ments of subdivision (h)(2).

(2) Alternatives to Full Disclosure.

(A) Substitutions and Other Alternatives. The

military judge, in assessing the accused’s right to

discover or access government information under

subdivision (h), may authorize the government:

(i) to delete or withhold specified items of

government information;

(ii) to substitute a summary for government

information; or

(iii) to substitute a statement admitting rele-

vant facts that the government information or mate-

rial would tend to prove, unless the military judge

determines that disclosure of the government infor-

mation itself is necessary to enable the accused to

prepare for trial.

(B) In Camera Review. The military judge

must, upon the request of the prosecution, conduct

an in camera review of the prosecution’s motion and

any materials submitted in support thereof and must

not disclose such information to the accused.

(C) Action by Military Judge. The military

judge must grant the request of the trial counsel to

substitute a summary or to substitute a statement

admitting relevant facts, or to provide other relief in

accordance with subdivision (h)(2)(A), if the mili-

tary judge finds that the summary, statement, or

UPDATED MILITARY RULES OF EVIDENCE

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33

other relief would provide the accused with substan-

tially the same ability to make a defense as would

discovery of or access to the specific government

information.

(i) Disclosure by the Accused.

(1) Notification to Trial Counsel and Military

Judge. If an accused reasonably expects to disclose,

or to cause the disclosure of, government informa-

tion subject to a claim of privilege in any manner in

connection with any trial or pretrial proceeding in-

volving the prosecution of such accused, the accused

must, within the time specified by the military judge

or, where no time is specified, prior to arraignment

of the accused, notify the trial counsel and the mili-

tary judge in writing.

(2) Content of Notice. Such notice must include a

brief description of the government information.

(3) Continuing Duty to Notify. Whenever the ac-

cused learns of additional government information

the accused reasonably expects to disclose, or to

cause the disclosure of, at any such proceeding, the

accused must notify trial counsel and the military

judge in writing as soon as possible thereafter and

must include a brief description of the government

information.

(4) Limitation on Disclosure by Accused. The ac-

cused may not disclose, or cause the disclosure of,

any information known or believed to be subject to a

claim of privilege in connection with a trial or pre-

trial proceeding until:

(A) notice has been given under subdivision

(i); and

(B) the government has been afforded a rea-

sonable opportunity to seek a determination pursuant

to the procedure set forth in subdivision (j).

(5) Failure to Comply. If the accused fails to

comply with the requirements of subdivision (i), the

military judge:

(A) may preclude disclosure of any govern-

ment information not made the subject of notifica-

tion; and

(B) may prohibit the examination by the ac-

cused of any witness with respect to any such

information.

(j) Procedure for Use of Government Information

Subject to a Claim of Privilege in Trials and Pre-

trial Proceedings.

(1) Hearing on Use of Government Information.

(A) Motion for Hearing. Within the time speci-

fied by the military judge for the filing of a motion

under this rule, either party may move for an in

camera hearing concerning the use at any proceeding

of any government information that may be subject

to a claim of privilege. Upon a request by either

party, the military judge must conduct such a hear-

ing and must rule prior to conducting any further

proceedings.

(B) Request for In Camera Hearing. Any hear-

ing held pursuant to subdivision (j) must be held in

camera if a knowledgeable United States official de-

scribed in subdivision (d) of this rule submits to the

military judge a declaration that disclosure of the

information reasonably could be expected to cause

identifiable damage to the public interest.

(C) Notice to Accused. Subject to subdivision

(j)(2) below, the prosecution must disclose govern-

ment information claimed to be privileged under this

rule for the limited purpose of litigating, in camera,

the admissibility of the information at trial. The mil-

itary judge must enter an appropriate protective or-

der to the accused and all other appropriate trial

participants concerning the disclosure of the infor-

mation according to subdivision (g), above. The ac-

cused may not disclose any information provided

under subdivision (j) unless, and until, such informa-

tion has been admitted into evidence by the military

judge. In the in camera hearing, both parties may

have the opportunity to brief and argue the admissi-

bility of the government information at trial.

(D) Standard for Disclosure. Government in-

formation is subject to disclosure at the court-martial

proceeding under subdivision (j) if the party making

the request demonstrates a specific need for informa-

tion containing evidence that is relevant to the guilt

or innocence or to punishment of the accused, and is

otherwise admissible in the court-martial proceeding.

(E) Written Findings. As to each item of gov-

ernment information, the military judge must set

forth in writing the basis for the determination.

(2) Alternatives to Full Disclosure.

(A) Motion by the Prosecution. Upon any de-

termination by the military judge authorizing disclo-

sure of specific government information under the

procedures established by subdivision (j), the prose-

cution may move that, in lieu of the disclosure of

such information, the military judge order:

(i) the substitution for such government in-

UPDATED MILITARY RULES OF EVIDENCE

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34

formation of a statement admitting relevant facts that

the specific government information would tend to

prove;

(ii) the substitution for such government in-

formation of a summary of the specific government

information; or

(iii) any other procedure or redaction limit-

ing the

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information.

(B) Hearing. The military judge must hold a

hearing on any motion under subdivision (j). At the

request of the trial counsel, the military judge will

conduct an in camera hearing.

(C) Standard for Use of Alternatives. The mili-

tary judge must grant such a motion of the trial

counsel if the military judge finds that the statement,

summary, or other procedure or redaction will pro-

vide the accused with substantially the same ability

to make his or her defense as would disclosure of

the specific government information.

(3) Sealing of Records of In Camera Hearings. If

at the close of an in camera hearing under subdivi-

sion (j) (or any portion of a hearing under subdivi-

sion (j) that is held in camera), the military judge

determines that the government information at issue

may not be disclosed or elicited at the trial or pre-

trial proceeding, the record of such in camera hear-

ing must be sealed in accordance with R.C.M.

1103A and preserved for use in the event of an

appeal. The accused may seek reconsideration of the

military judge’s determination prior to or during

trial.

(4) Remedies.

(A) If the military judge determines that alter-

natives to full disclosure may not be used and the

prosecution continues to object to disclosure of the

information, the military judge must issue any order

that the interests of justice require, including but not

limited to, an order:

(i) striking or precluding all or part of the

testimony of a witness;

(ii) declaring a mistrial;

(iii) finding against the government on any

issue as to which the evidence is relevant and neces-

sary to the defense;

(iv) dismissing the charges, with or without

prejudice; or

(v) dismissing the charges or specifications

or both to which the information relates.

(B) The government may avoid the sanction

for nondisclosure by permitting the accused to dis-

close the information at the pertinent court-martial

proceeding.

(5) Disclosure of Rebuttal Information. Whenever

the military judge determines that government infor-

mation may be disclosed in connection with a trial

or pretrial proceeding, the military judge must, un-

less the interests of fairness do not so require, order

the prosecution to provide the accused with the in-

formation it expects to use to rebut the government

information.

(A) Continuing Duty. The military judge may

place the prosecution under a continuing duty to

disclose such rebuttal information.

(B) Sanction for Failure to Comply. If the

prosecution fails to comply with its obligation under

subdivision (j), the military judge may make such

ruling as the interests of justice require, to include:

(i) excluding any evidence not made the sub-

ject of a required disclosure; and

(ii) prohibiting the examination by the prose-

cution of any witness with respect to such

information.

(k) Appeals of Orders and Rulings. In a court-mar-

tial in which a punitive discharge may be adjudged,

the government may appeal an order or ruling of the

military judge that terminates the proceedings with

respect to a charge or specification, directs the dis-

closure of government information, or imposes sanc-

tions for nondisclosure of government information.

The government may also appeal an order or ruling

in which the military judge refuses to issue a protec-

tive order sought by the United States to prevent the

disclosure of government information, or to enforce

such an order previously issued by appropriate au-

thority. The government may not appeal an order or

ruling that is, or amounts to, a finding of not guilty

with respect to the charge or specification.

(l) Introduction into Evidence of Government Infor-

mation Subject to a Claim of Privilege.

(1) Precautions. The military judge in a trial by

court-martial, in order to prevent unnecessary disclo-

sure of government information after there has been

a claim of privilege under this rule, may order ad-

mission into evidence of only part of a writing,

recording, or photograph or admit into evidence the

UPDATED MILITARY RULES OF EVIDENCE

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35

UPDATED MILITARY RULES OF EVIDENCE

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36

whole writing, recording, or photograph with exci-

sion of some or all of the government information

contained therein, unless the whole ought in fairness

to be considered.

(2) Government Information Kept Under Seal.

The military judge must allow government informa-

tion offered or accepted into evidence to remain

under seal during the trial, even if such evidence is

disclosed in the court-martial proceeding, and may,

upon motion by the prosecution, seal exhibits con-

taining government information in accordance with

R.C.M. 1103A for any period after trial as necessary

to prevent a disclosure of government information

when a knowledgeable United States official de-

scribed in subdivision (d) submits to the military

judge a declaration setting forth the detriment to the

public interest that the disclosure of such informa-

tion reasonably could be expected to cause.

(3) Testimony.

(A) Objection by Trial Counsel. During exami-

nation of a witness, trial counsel may object to any

question or line of inquiry that may require the wit-

ness to disclose government information not

previously found admissible if such information has

been or is reasonably likely to be the subject of a

claim of privilege under this rule.

(B) Action by Military Judge. Following such

an objection, the military judge must take such suita-

ble action to determine whether the response is ad-

missible as will safeguard against the compromise of

any government information. Such action may in-

clude requiring trial counsel to provide the military

judge with a proffer of the witness’s response to the

question or line of inquiry and requiring the accused

to provide the military judge with a proffer of the

nature of the information sought to be elicited by the

accused. Upon request, the military judge may ac-

cept an ex parte proffer by trial counsel to the extent

necessary to protect government information from

disclosure.

(m) Record of Trial. If under this rule any informa-

tion is withheld from the accused, the accused ob-

jects to such withholding, and the trial is continued

to an adjudication of guilt of the accused, the entire

unaltered text of the relevant documents as well as

the prosecution’s motion and any materials submit-

ted in support thereof must be sealed in accordance

with R.C.M. 1103A and attached to the record of

trial as an appellate exhibit. Such material must be

made available to reviewing authorities in closed

proceedings for the purpose of reviewing the deter-

mination of the military judge.

Rule 507. Identity of informants

(a) General Rule. The United States or a State or

subdivision thereof has a privilege to refuse to dis-

close the identity of an informant. Unless otherwise

privileged under these rules, the communications of

an informant are not privileged except to the extent

necessary to prevent the disclosure of the inform-

ant’s identity.

(b) Definitions. As used in this rule:

(1) “Informant” means a person who has fur-

nished information relating to or assisting in an in-

vestigation of a possible violation of law to a person

whose official duties include the discovery, investi-

gation, or prosecution of crime.

(2) “In camera review” means an inspection of

documents or other evidence conducted by the mili-

tary judge alone in chambers and not on the record.

(c) Who May Claim the Privilege. The privilege

may be claimed by an appropriate representative of

the United States, regardless of whether information

was furnished to an officer of the United States or a

State or subdivision thereof. The privilege may be

claimed by an appropriate representative of a State

or subdivision if the information was furnished to an

officer thereof, except the privilege will not be al-

lowed if the prosecution objects.

(d) Exceptions.

(1) Voluntary Disclosures; Informant as a Prose-

cution Witness. No privilege exists under this rule:

(A) if the identity of the informant has been

disclosed to those who would have cause to resent

the communication by a holder of the privilege or by

the informant’s own action; or

(B) if the informant appears as a witness for

the prosecution.

(2) Informant as a Defense Witness. If a claim of

privilege has been made under this rule, the military

judge must, upon motion by the accused, determine

whether disclosure of the identity of the informant is

necessary to the accused’s defense on the issue of

guilt or innocence. Whether such a necessity exists

will depend on the particular circumstances of each

case, taking into consideration the offense charged,

the possible defense, the possible significance of the

informant’s testimony, and other relevant factors. If

UPDATED MILITARY RULES OF EVIDENCE

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37

it appears from the evidence in the case or from

other showing by a party that an informant may be

able to give testimony necessary to the accused’s

defense on the issue of guilt or innocence, the mili-

tary judge may make any order required by the in-

terests of justice.

(3) Informant as a Witness regarding a Motion to

Suppress Evidence. If a claim of privilege has been

made under this rule with respect to a motion under

Mil. R. Evid. 311, the military judge must, upon

motion of the accused, determine whether disclosure

of the identity of the informant is required by the

United States Constitution as applied to members of

the Armed Forces. In making this determination, the

military judge may make any order required by the

interests of justice.

(e) Procedures.

(1) In Camera Review. If the accused has articu-

lated a basis for disclosure under the standards set

forth in this rule, the prosecution may ask the mili-

tary judge to conduct an in camera review of affida-

vits or other evidence relevant to disclosure.

(2) Order by the Military Judge. If a claim of

privilege has been made under this rule, the military

judge may make any order required by the interests

of justice.

(3) Action by the Convening Authority. If the mil-

itary judge determines that disclosure of the identity

of the informant is required under the standards set

forth in this rule, and the prosecution elects not to

disclose the identity of the informant, the matter

must be reported to the convening authority. The

convening authority may institute action to secure

disclosure of the identity of the informant, terminate

the proceedings, or take such other action as may be

appropriate under the circumstances.

(4) Remedies. If, after a reasonable period of time

disclosure is not made, the military judge, sua

sponte or upon motion of either counsel and after a

hearing if requested by either party, may dismiss the

charge or specifications or both to which the infor-

mation regarding the informant would relate if the

military judge determines that further proceedings

would materially prejudice a substantial right of the

accused.

Rule 508. Political vote

A person has a privilege to refuse to disclose the

tenor of the person’s vote at a political election

conducted by secret ballot unless the vote was cast

illegally.

Rule 509. Deliberations of courts and juries

Except as provided in Mil. R. Evid. 606, the de-

liberations of courts, courts-martial, military judges,

and grand and petit juries are privileged to the extent

that such matters are privileged in trial of criminal

cases in the United States district courts, but the

results of the deliberations are not privileged.

Rule 510. Waiver of privilege by voluntary

disclosure

(a) A person upon whom these rules confer a privi-

lege against disclosure of a confidential matter or

communication waives the privilege if the person or

the person’s predecessor while holder of the privi-

lege voluntarily discloses or consents to disclosure

of any significant part of the matter or communica-

tion under such circumstances that it would be inap-

propriate to allow the claim of privilege. This rule

does not apply if the disclosure is itself a privileged

communication.

(b) Unless testifying voluntarily concerning a privi-

leged matter or communication, an accused who tes-

tifies in his or her own behalf or a person who

testifies under a grant or promise of immunity does

not, merely by reason of testifying, waive a privilege

to which he or she may be entitled pertaining to the

confidential matter or communication.

Rule 511. Privileged matter disclosed under

compulsion or without opportunity to claim

privilege

(a) General Rule. Evidence of a statement or other

disclosure of privileged matter is not admissible

against the holder of the privilege if disclosure was

compelled erroneously or was made without an op-

portunity for the holder of the privilege to claim the

privilege.

(b) Use of Communications Media. The telephonic

transmission of information otherwise privileged

under these rules does not affect its privileged char-

acter. Use of electronic means of communication

other than the telephone for transmission of informa-

tion otherwise privileged under these rules does not

affect the privileged character of such information if

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

38

use of such means of communication is necessary

and in furtherance of the communication.

Rule 512. Comment upon or inference from

claim of privilege; instruction

(a) Comment or Inference Not Permitted.

(1) The claim of a privilege by the accused

whether in the present proceeding or upon a prior

occasion is not a proper subject of comment by the

military judge or counsel for any party. No inference

may be drawn therefrom.

(2) The claim of a privilege by a person other

than the accused whether in the present proceeding

or upon a prior occasion normally is not a proper

subject of comment by the military judge or counsel

for any party. An adverse inference may not be

drawn there from except when determined by the

military judge to be required by the interests of

justice.

(b) Claiming a Privilege Without the Knowledge of

the Members. In a trial before a court-martial with

members, proceedings must be conducted, to the ex-

tent practicable, so as to facilitate the making of

claims of privilege without the knowledge of the

members. Subdivision (b) does not apply to a special

court-martial without a military judge.

(c) Instruction. Upon request, any party against

whom the members might draw an adverse inference

from a claim of privilege is entitled to an instruction

that no inference may be drawn there from except as

provided in subdivision (a)(2).

Rule 513. Psychotherapist—patient privilege

(a) General Rule. A patient has a privilege to refuse

to disclose and to prevent any other person from

disclosing a confidential communication made be-

tween the patient and a psychotherapist or an assist-

ant to the psychotherapist, in a case arising under

the Uniform Code of Military Justice, if such com-

munication was made for the purpose of facilitating

diagnosis or treatment of the patient’s mental or

emotional condition.

(b) Definitions. As used in this rule:

(1) “Patient” means a person who consults with

or is examined or interviewed by a psychotherapist

for purposes of advice, diagnosis, or treatment of a

mental or emotional condition.

(2) “Psychotherapist” means a psychiatrist,

clini-

cal psychologist, clinical social worker, or other

mental health professional who is licensed in any

State, territory, possession, the District of Columbia,

or Puerto Rico to perform professional services as

such, or who holds credentials to provide such serv-

ices as such, or who holds credentials to provide

such services from any military health care facility,

or is a person reasonably believed by the patient to

have such license or credentials.

(3) “Assistant to a psychotherapist” means a per-

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,

or is reasonably believed by the patient to be such.

(4) A communication is “confidential” if not in-

tended to be disclosed to third persons other than

those to whom disclosure is in furtherance of the

rendition of professional services to the patient or

those reasonably necessary for such transmission of

the communication.

(5) “Evidence of a patient’s records or communi-

cations” means testimony of a psychotherapist, or

assistant to the same, or patient records that pertain

to communications by a patient to a psychotherapist,

or assistant to the same, for the purposes of diagno-

sis or treatment of the patient’s mental or emotional

condition.

(c) Who May Claim the Privilege. The privilege

may be claimed by the patient or the guardian or

conservator of the patient. A person who may claim

the privilege may authorize trial counsel or defense

counsel to claim the privilege on his or her behalf.

The psychotherapist or assistant to the psycho-

therapist who received the communication may

claim the privilege on behalf of the patient. The

authority of such a psychotherapist, assistant, guardi-

an, or conservator to so assert the privilege is pre-

sumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) when the patient is dead;

(2) when the communication is evidence of child

abuse or of neglect, or in a proceeding in which one

spouse is charged with a crime against a child of

either spouse;

(3) when federal law, state law, or service regula-

tion imposes a duty to report information contained

in a communication;

(4) when a psychotherapist or assistant to a

psychotherapist believes that a patient’s mental or

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

39

emotional condition makes the patient a danger to

any person, including the patient;

(5) if the communication clearly contemplated the

future commission of a fraud or crime or if the

services of the psychotherapist are sought or ob-

tained to enable or aid anyone to commit or plan to

commit what the patient knew or reasonably should

have known to be a crime or fraud;

(6) when necessary to ensure the safety and secu-

rity of military personnel, military dependents, mili-

tary property, classified information, or the

accomplishment of a military mission;

(7) when an accused offers statements or other

evidence concerning his mental condition in defense,

extenuation, or mitigation, under circumstances not

covered by R.C.M. 706 or Mil. R. Evid. 302. In

such situations, the military judge may, upon mo-

tion, order disclosure of any statement made by the

accused to a psychotherapist as may be necessary in

the interests of justice; or

(e) Procedure to Determine Admissibility of Patient

Records or Communications.

(1) In any case in which the production or admis-

sion of records or communications of a patient other

than the accused is a matter in dispute, a party may

seek an interlocutory ruling by the military judge. In

order to obtain such a ruling, the party must:

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the evidence

and stating the purpose for which it is sought or

offered, or objected to, unless the military judge, for

good cause shown, requires a different time for fil-

ing or permits filing during trial; and

(B) serve the motion on the opposing party, the

military judge and, if practical, notify the patient or

the patient’s guardian, conservator, or representative

that the motion has been filed and that the patient

has an opportunity to be heard as set forth in subdi-

vision (e)(2).

(2) Before ordering the production or admission

of evidence of a patient’s records or communication,

the military judge must conduct a hearing, which

shall be closed. At the hearing, the parties may call

witnesses, including the patient, and offer other rele-

vant evidence. The patient must be afforded a rea-

sonable opportunity to attend the hearing and be

heard. 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, including Special Victims’ Counsel under

section 1044e of title 10, United States Code. In a

case before a court-martial comprised of a military

judge and members, the military judge must

conduct the hear- ing outside the presence of the

members.

(3) The military judge may examine the evidence

or a proffer thereof in camera, if such examination is

necessary to rule on the production or admissibility

of protected records or communications. Prior to

conducting an in camera review, the military judge

must find by a preponderance of the evidence that

the moving party showed:

(A) a specific factual basis demonstrating a

reasonable likelihood that the records or communi-

cations would yield evidence admissible under an

exception to the privilege;

(B) that the requested information meets one of

the enumerated exceptions under subsection (d) of

this rule;

(C) that the information sought is not merely

cumulative of other information available; and

(D) that the party made reasonable efforts to

obtain the same or substantially similar information

through non-privileged sources.

(4) Any production or disclosure permitted by the

military judge under this rule must be narrowly tai-

lored to only the specific records or communica-

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

communications, that meet the requirements for one

of the enumerated exceptions to the privilege under

subsection (d) of this Rule and are included in the

stated purpose for which the records or

communications are sought under subsection

(e)(1)(A) of this Rule.

(5) To prevent unnecessary disclosure of evi- dence

of a patient’s records or communications, the military

judge may issue protective orders or may admit only

portions of the evidence.

(6) The motion, related papers, and the record of the

hearing must be sealed in accordance with

R.C.M. 1103A and must remain under seal unless the

military judge or an appellate court orders otherwise.

Rule 514. Victim advocate-victim and

Department of Defense Safe Helpline staff-

victim privilege.

(a) General Rule. A victim has a privilege to refuse

to disclose and to prevent any other person from

disclosing a confidential communication made be-

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

40

tween the alleged victim and a victim advocate or

between the alleged victim and Department of De-

fense Safe Helpline staff, in a case arising under the

UCMJ, if such communication was made for the

purpose of facilitating advice or assistance to the

alleged victim.

(b) Definitions. As used in this rule:

(1) “Victim” means any person who is alleged to

have suffered direct physical or emotional harm as

the result of a sexual or violent offense.

(2) “Victim advocate” means a person who:

(A) is designated in writing as a victim advo-

cate in accordance with service regulation;

(B) is authorized to perform victim advocate

duties in accordance with service regulation and is

acting in the performance of those duties; or

(C) is certified as a victim advocate pursuant to

federal or state requirements.

(3) “Department of Defense Safe Helpline staff”

are persons who are designated by competent

authority in writing as Department of Defense Safe

Helpline staff.

(4) A communication is “confidential” if made in

the course of the victim advocate-victim relationship

or Department of Defense Safe Helpline staff-victim

relationship and not intended to be disclosed to third

persons other than those to whom disclosure is made

in furtherance of the rendition of advice or assist-

ance to the alleged victim or those reasonably neces-

sary for such transmission of the communication.

(5) “Evidence of a victim’s records or communi-

cations” means testimony of a victim advocate or

Department of Defense Safe Helpline staff, or re-

cords that pertain to communications by a victim to

a victim advocate or Department of Defense Safe

Helpline staff, for the purposes of advising or pro-

viding assistance to the victim.

(c) Who May Claim the Privilege. The privilege

may be claimed by the victim or the guardian or

conservator of the victim. A person who may claim

the privilege may authorize trial counsel or a coun-

sel representing the victim to claim the privilege on

his or her behalf. The victim advocate or Depart-

ment of Defense Safe Helpline staff who received

the communication may claim the privilege on be-

half of the victim. The authority of such a victim

advocate, Department of Defense Safe Helpline

staff, guardian, conservator, or a counsel represent-

ing the victim to so assert the privilege is presumed

in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) when the victim is dead;

(2) When federal law, state law, Department of

Defense regulation, or service regulation imposes a

duty to

r

ep

o

r

t

i

n

f

o

r

ma

t

i

o

n

co

n

ta

i

ned in a

communication;

(3) When a victim advocate or Department of De-

fense Safe Helpline staff believes that a victim’s

mental or emotional condition makes the victim a

danger to any person, including the victim;

(4) If the communication clearly contemplated

the future commission of a fraud or crime, or if the

services of the victim advocate or Department of

Defense Safe Helpline staff are sought or obtained

to enable or aid anyone to commit or plan to commit

what the victim knew or reasonably should have

known to be a crime or fraud;

(5) when necessary to ensure the safety and secu-

rity of military personnel, military dependents, mili-

tary property, classified information, or the

accomplishment of a military mission; or

(6) when admission or disclosure of a communi-

cation is constitutionally required.

(e) Procedure to Determine Admissibility of Victim

Records or Communications.

(1) In any case in which the production or admis-

sion of records or communications of a victim is a

matter in dispute, a party may seek an interlocutory

ruling by the military judge. In order to obtain such

a ruling, the party must:

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the evidence

and stating the purpose for which it is sought or

offered, or objected to, unless the military judge, for

good cause shown, requires a different time for fil-

ing or permits filing during trial; and

(B) serve the motion on the opposing party, the

military judge and, if practicable, notify the victim

or the victim’s guardian, conservator, or representa-

tive that the motion has been filed and that the

victim has an opportunity to be heard as set forth in

subdivision (e)(2).

(2) Before ordering the production or admission

of evidence of a victim’s records or communication,

the military judge must conduct a hearing, which

shall be closed. At the hearing, the parties may call

witnesses, including the victim, and offer other rele-

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

41

vant evidence. The victim must be afforded a rea-

sonable opportunity to attend the hearing and be heard.

However, the hearing may not be unduly de-

layed for this purpose. The right to be heard under this

WITNESSES

SECTION VI

rule includes the right to be heard through coun- sel,

including Special Victims’ Counsel under section 1044e

of title 10, United States Code. In a case before a

court-martial composed of a military judge and

members, the military judge must conduct the hear- ing

outside the presence of the members.

(3) The military judge may examine the

evidence, or a proffer thereof, in camera if such

examination is necessary to rule on the production

or admissibility of protected records or

communications. Prior to conducting an in camera

review, the military judge must find by a

preponderance of the evidence that the moving

party showed:

(A) a specific factual basis demonstrating a

reasonable likelihood that the records or communi-

cations would yield evidence admissible under an

exception to the privilege;

(B) that the requested information meets one of

the enumerated exceptions under subsection (d) of

this rule;

(C) that the information sought is not merely

cumulative of other information available; and

(D) that the party made reasonable efforts to

obtain the same or substantially similar information

through non-privileged sources.

(4) Any production or disclosure permitted by the

military judge under this rule must be narrowly tai-

lored to only the specific records or communica

–tions, or portions of such records or

communications, that meet the requirements for one

of the enumerated exceptions to the privilege under

subsection (d) above and are included in the stated

purpose for which the records or communications

are sought under subsection (e)(1)(A) above.

(5) To prevent unnecessary disclosure of evi-

dence of a victim’s records or communications, the

military judge may issue protective orders or may

admit only portions of the evidence.

(6) The motion, related papers, and the record of

the hearing must be sealed in accordance with

R.C.M. 1103A and must remain under seal unless

the military judge or an appellate court orders

otherwise.

Rule 601. Competency to testify in general

Every person is competent to be a witness unless

these rules provide otherwise.

Rule 602. Need for personal knowledge

A witness may testify to a matter only if evidence

is introduced sufficient to support a finding that the

witness has personal knowledge of the matter. Evi-

dence to prove personal knowledge may consist of

the witness’s own testimony. This rule does not ap-

ply to a witness’s expert testimony under Mil. R.

Evid. 703.

Rule 603. Oath or affirmation to testify

truthfully

Before testifying, a witness must give an oath or

affirmation to testify truthfully. It must be in a form

designed to impress that duty on the witness’s

conscience.

Rule 604. Interpreter

An interpreter must be qualified and must give an

oath or affirmation to make a true translation.

Rule 605. Military judge’s competency as a

witness

(a) The presiding military judge may not testify as a

witness at any proceeding of that court-martial. A

party need not object to preserve the issue.

(b) This rule does not preclude the military judge

from placing on the record matters concerning do-

cketing of the case.

Rule 606. Member’s competency as a

witness

(a) At the Trial by Court-Martial. A member of a

court-martial may not testify as a witness before the

other members at any proceeding of that court-mar-

tial. If a member is called to testify, the military

judge must – except in a special court-martial with-

out a military judge – give the opposing party an

opportunity to object outside the presence of the

members.

UPDATED MILITARY RULES OF EVIDENCE

JUNE 2015

42

(b) During an Inquiry into the Validity of a Finding

or Sentence.

(1) Prohibited Testimony or Other Evidence. Dur-

ing an inquiry into the validity of a finding or sen-

tence, a member of a court-martial may not testify

about any statement made or incident that occurred

during the deliberations of that court-martial; the

effect of anything on that member’s or another

member’s vote; or any member’s mental processes

concerning the finding or sentence. The military

judge may not receive a member’s affidavit or evi-

dence of a member’s statement on these matters.

(2) Exceptions. A member may testify about

whether:

(A) extraneous prejudicial information was im-

properly brought to the members’ attention;

(B) unlawful command influence or any other

outside influence was improperly brought to bear on

any member; or

(C) a mistake was made in entering the finding

or sentence on the finding or sentence forms.

Rule 607. Who may impeach a witness

Any party, including the party that called the wit-

ness, may attack the witness’s credibility.

Rule 608. A witness’s character for

truthfulness or untruthfulness

(a) Reputation or Opinion Evidence. A witness’s

credibility may be attacked or supported by testi-

mony about the witness’s reputation for having a

character for truthfulness or untruthfulness, or by

testimony in the form of an opinion about that char-

acter. Evidence of truthful character is admissible

only after the witness’s character for truthfulness has

been attacked.

(b) Specific Instances of Conduct. Except for a

criminal conviction under Mil. R. Evid. 609, extrin-

sic evidence is not admissible to prove specific in-

stances of a witness’s conduct in order to attack or

support the witness’s character for truthfulness. The

military judge may, on cross-examination, allow

them to be inquired into if they are probative of the

character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness

being cross-examined has testified about. By testify-

ing on another matter, a witness does not waive any

privilege against self-incrimination for testimony

that relates only to the witness’s character for

truthfulness.

(c) Evidence of Bias. Bias, prejudice, or any motive

to misrepresent may be shown to impeach the wit-

ness either by examination of the witness or by

evidence otherwise adduced.

Rule 609. Impeachment by evidence of a

criminal conviction

(a) In General. The following rules apply to attack-

ing a witness’s character for truthfulness by evi-

dence of a criminal conviction:

(1) For a crime that, in the convicting jurisdic-

tion, was punishable by death, dishonorable dis-

charge, or by imprisonment for more than one year,

the evidence:

(A) must be admitted, subject to Mil. R. Evid.

403, in a court-martial in which the witness is not

the accused; and

(B) must be admitted in a court-martial in

which the witness is the accused, if the probative

value of the evidence outweighs its prejudicial effect

to that accused; and

(2) For any crime regardless of the punishment,

the evidence must be admitted if the court can read-

ily determine that establishing the elements of the

crime required proving – or the witness’s admitting

– a dishonest act or false statement.

(3) In determining whether a crime tried by court-

martial was punishable by death, dishonorable dis-

charge, or imprisonment in excess of one year, the

maximum punishment prescribed by the President

under Article 56 at the time of the conviction applies

without regard to whether the case was tried by

general, special, or summary court-martial.

(b) Limit on Using the Evidence After 10 Years.

Subdivision (b) applies if more than 10 years have

passed since the witness’s conviction or release from

confinement for it, whichever is later. Evidence of

the conviction is admissible only if:

(1) its probative value, supported by specific facts

and circumstances, substantially outweighs its preju-

dicial effect; and

(2) the proponent gives an adverse party reasona-

ble written notice of the intent to use it so that the

party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of

UPDATED MILITARY RULES OF EVIDENCE

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43

Rehabilitation. Evidence of a conviction is not ad-

missible if:

(1) the conviction has been the subject of a par-

don, annulment, certificate of rehabilitation, or other

equivalent procedure based on a finding that the

person has been rehabilitated, and the person has not

been convicted of a later crime punishable by death,

dishonorable discharge, or imprisonment for more

than one year; or

(2) the conviction has been the subject of a par-

don, annulment, or other equivalent procedure based

on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile

adjudication is admissible under this rule only if:

(1) the adjudication was of a witness other than

the accused;

(2) an adult’s conviction for that offense would

be admissible to attack the adult’s credibility; and

(3) admitting the evidence is necessary to fairly

determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that

satisfies this rule is admissible even if an appeal is

pending, except that a conviction by summary court-

martial or special court-martial without a military

judge may not be used for purposes of impeachment

until review has been completed under Article 64 or

Article 66, if applicable. Evidence of the pendency

is also admissible.

(f) Definition. For purposes of this rule, there is a

“conviction” in a court-martial case when a sentence

has been adjudged.

Rule 610. Religious beliefs or opinions

Evidence of a witness’s religious beliefs or opin-

ions is not admissible to attack or support the wit-

ness’s credibility.

Rule 611. Mode and order of examining

witnesses and presenting evidence

(a) Control by the Military Judge; Purposes. The

military judge should exercise reasonable control

over the mode and order of examining witnesses and

presenting evidence so as to:

(1) make those procedures effective for determin-

ing the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue

embarrassment.

(b) Scope of Cross-Examination. Cross-examination

should not go beyond the subject matter of the direct

examination and matters affecting the witness’s

credibility. The military judge may allow inquiry

into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should

not be used on direct examination except as neces-

sary to develop the witness’s testimony. Ordinarily,

the military judge should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness or a wit-

ness identified with an adverse party.

(d) Remote live testimony of a child.

(1) In a case involving domestic violence or the

abuse of a child, the military judge must, subject to

the requirements of subdivision (d)(3) of this rule,

allow a child victim or witness to testify from an

area outside the courtroom as prescribed in R.C.M.

914A.

(2) Definitions. As used in this rule:

(A) “Child” means a person who is under the

age of 16 at the time of his or her testimony.

(B) “Abuse of a child” means the physical or

mental injury, sexual abuse or exploitation, or negli-

gent treatment of a child.

(C) “Exploitation” means child pornography or

child prostitution.

(D) “Negligent treatment” means the failure to

provide, for reasons other than poverty, adequate

food, clothing, shelter, or medical care so as to en-

danger seriously the physical health of the child.

(E) “Domestic violence” means an offense that

has as an element the use, or attempted or threatened

use of physical force against a person by a current

or former spouse, parent, or guardian of the victim;

by a person with whom the victim shares a child in

common; by a person who is cohabiting with or has

cohabited with the victim as a spouse, parent, or

guardian; or by a person similarly situated to a

spouse, parent, or guardian of the victim.

(3) Remote live testimony will be used only

where the military judge makes the following three

findings on the record:

(A) that it is necessary to protect the welfare of

the particular child witness;

(

B

)

t

h

a

t

h

e ch

i

l

d wi tn

e

s

s wo

u

l

d

b

e

UPDATED MILITARY RULES OF EVIDENCE

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44

traumatized, not by the courtroom generally, but by

the presence of the defendant; and

(C) that the emotional distress suffered by the

child witness in the presence of the defendant is

more than de minimis.

(4) Remote live testimony of a child will not be

used when the accused elects to absent himself from

the courtroom in accordance with R.C.M. 804(d).

(5) In making a determination under subdivision

(d)(3), the military judge may question the child in

chambers, or at some comfortable place other than

the courtroom, on the record for a reasonable period

of time, in the presence of the child, a representative

of the prosecution, a representative of the defense,

and the child’s attorney or guardian ad litem.

Rule 612. Writing used to refresh a witness’s

memory

(a) Scope. This rule gives an adverse party certain

options when a witness uses a writing to refresh

memory:

(1) while testifying; or

(2) before testifying, if the military judge decides

that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated

Matter. An adverse party is entitled to have the

writing produced at the hearing, to inspect it, to

cross-examine the witness about it, and to introduce

in evidence any portion that relates to the witness’s

testimony. If the producing party claims that the

writing includes unrelated or privileged matter, the

military judge must examine the writing in camera,

delete any unrelated or privileged portion, and order

that the rest be delivered to the adverse party. Any

portion deleted over objection must be preserved for

the record.

(c) Failure to Produce or Deliver the Writing. If a

writing is not produced or is not delivered as or-

dered, the military judge may issue any appropriate

order. If the prosecution does not comply, the mili-

tary judge must strike the witness’s testimony or – if

justice so requires – declare a mistrial.

(d) No Effect on Other Disclosure Requirements.

This rule does not preclude disclosure of information

required to be disclosed under other provisions of

these rules or this Manual.

Rule 613. Witness’s prior statement

(a) Showing or Disclosing the Statement During Ex-

amination. When examining a witness about the wit-

ness’s prior statement, a party need not show it or

disclose its contents to the witness. The party must,

on request, show it or disclose its contents to an

adverse party’s attorney.

(b) Extrinsic Evidence of a Prior Inconsistent State-

ment. Extrinsic evidence of a witness’s prior incon-

sistent statement is admissible only if the witness is

given an opportunity to explain or deny the state-

ment and an adverse party is given an opportunity to

examine the witness about it, or if justice so re-

quires. Subdivision (b) does not apply to an oppos-

ing party’s statement under Mil R. Evid. 801(d)(2).

Rule 614. Court-martial’s calling or

examining a witness

(a) Calling. The military judge may – sua sponte or

at the request of the members or the suggestion of a

party – call a witness. Each party is entitled to cross-

examine the witness. When the members wish to

call or recall a witness, the military judge must de-

termine whether the testimony would be relevant

and not barred by any rule or provision of this

Manual.

(b) Examining. The military judge or members may

examine a witness regardless of who calls the wit-

ness. Members must submit their questions to the

military judge in writing. Following the opportunity

for review by both parties, the military judge must

rule on the propriety of the questions, and ask the

questions in an acceptable form on behalf of the

members. When the military judge or the members

call a witness who has not previously testified, the

military judge may conduct the direct examination

or may assign the responsibility to counsel for any

party.

(c) Objections. Objections to the calling of wit-

nesses by the military judge or the members or to

the interrogation by the military judge or the mem-

bers may be made at the time or at the next availa-

ble opportunity when the members are not present.

Rule 615. Excluding witnesses

At a party’s request, the military judge must order

witnesses excluded so that they cannot hear other

witnesses’ testimony, or the military judge may do

UPDATED MILITARY RULES OF EVIDENCE

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45

so sua sponte. This rule does not authorize

excluding:

(a) the accused;

(b) a member of an Armed service or an employee

of the United States after being designated as a rep-

resentative of the United States by the trial counsel;

(c) a person whose presence a party shows to be

essential to presenting the party’s case;

(d) a person authorized by statute to be present; or

(e) A victim of an offense from the trial of an ac-

cused for that offense, unless the military judge,

after receiving clear and convincing evidence, deter-

mines that testimony by the victim would be materi-

ally altered if the victim heard other testimony at

that hearing or proceeding.

SECTION VII

OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion testimony by lay

witnesses

If a witness is not testifying as an expert, testi-

mony in the form of an opinion is limited to one that

is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other spe-

cialized knowledge within the scope of Mil. R. Evid.

702.

Rule 702. Testimony by expert witnesses

A witness who is qualified as an expert by knowl-

edge, skill, experience, training, or education may

testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other spe-

cialized knowledge will help the trier of fact to un-

derstand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or

data;

(c) the testimony is the product of reliable principles

and methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

Rule 703. Bases of an expert’s opinion

testimony

An expert may base an opinion on facts or data in

the case that the expert has been made aware of or

personally observed. If experts in the particular field

would reasonably rely on those kinds of facts or data

in forming an opinion on the subject, they need not

be admissible for the opinion to be admitted. If the

facts or data would otherwise be inadmissible, the

proponent of the opinion may disclose them to the

members of a court-martial only if the military judge

finds that their probative value in helping the mem-

bers evaluate the opinion substantially outweighs

their prejudicial effect.

Rule 704. Opinion on an ultimate issue

An opinion is not objectionable just because it

embraces an ultimate issue.

Rule 705. Disclosing the facts or data

underlying an expert’s opinion

Unless the military judge orders otherwise, an ex-

pert may state an opinion – and give the reasons for

it – without first testifying to the underlying facts or

data. The expert may be required to disclose those

facts or data on cross-examination.

Rule 706. Court-appointed expert witnesses

(a) Appointment Process. The trial counsel, the de-

fense counsel, and the court-martial have equal op-

portunity to obtain expert witnesses under Article 46

and R.C.M. 703.

(b) Compensation. The compensation of expert wit-

nesses is governed by R.C.M. 703.

(c) Accused’s Choice of Experts. This rule does not

limit an accused in calling any expert at the ac-

cused’s own expense.

Rule 707. Polygraph examinations

(a) Prohibitions. Notwithstanding any other provi-

sion of law, the result of a polygraph examination,

the polygraph examiner’s opinion, or any reference

to an offer to take, failure to take, or taking of a

polygraph examination is not admissible.

(b) Statements Made During a Polygraph Examina-

tion. This rule does not prohibit admission of an

UPDATED MILITARY RULES OF EVIDENCE

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46

otherwise admissible statement made during a poly-

graph examination.

SECTION VIII

itself establish the declarant’s authority under (C);

the existence or scope of the relationship under (D);

or the existence of the conspiracy or participation in

it under (E).

HEARSAY

Rule 801. Definitions that apply to this

section; exclusions from hearsay

(a) Statement. “Statement” means a person’s oral

assertion, written assertion, or nonverbal conduct, if

the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who

made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying

at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of

the matter asserted in the statement.

(d) Statements that Are Not Hearsay. A

statement

that meets the following conditions is not

hearsay:

(1) A Declarant-Witness’s Prior Statement.

The

declarant testifies and is subject to cross-examina-

tion about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testi-

mony and was given under penalty of perjury at a

trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony

and is offered to rebut an express or implied charge

that the declarant recently fabricated it or acted from

a recent improper influence or motive in so testify-

ing; or

(C)

id

entifies a person as someone the

declarant perceived earlier.

(2) An Opposing Party’s Statement. The state-

ment is offered against an opposing party and:

(A) was made by the party in an individual or

representative capacity;

(B) is one the party manifested that it adopted

or believed to be true;

(C) was made by a person whom the party

authorized to make a statement on the subject;

(D) was made by the party’s agent or employee

on a matter within the scope of that relationship and

while it existed; or

(E) was made by the party’s co-conspirator

during and in furtherance of the conspiracy.

The statement must be considered but does not by

Rule 802. The rule against hearsay

Hearsay is not admissible unless any of the fol-

lowing provides otherwise:

(a) a federal statute applicable in trial by courts-

martial; or

(b) these rules.

Rule 803. Exceptions to the rule against

hearsay – regardless of whether the

declarant is available as a witness

The following are not excluded by the rule against

hearsay, regardless of whether the declarant is avail-

able as a witness:

(1) Present Sense Impression. A statement describ-

ing or explaining an event or condition, made while

or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a

startling event or condition, made while the

declarant was under the stress of excitement that it

caused.

(3) Then-Existing Mental, Emotional, or Physical

Condition. A statement of the declarant’s then-exist-

ing state of mind (such as motive, intent, or plan) or

emotional, sensory, or physical condition (such as

mental feeling, pain, or bodily health), but not in-

cluding a statement of memory or belief to prove the

fact remembered or believed unless it relates to the

validity or terms of the declarant’s will.

(4) Statement Made for Medical Diagnosis or Treat-

ment. A statement that -

(A) is made for – and is reasonably pertinent to –

medical diagnosis or treatment; and

(B) describes medical history; past or present

symptoms or sensations; their inception; or their

general cause.

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about

but now cannot recall well enough to testify fully

and accurately;

(B) was made or adopted by the witness when the

matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence

UPDATED MILITARY RULES OF EVIDENCE

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47

but may be received as an exhibit only if offered by

an adverse party.

(6) Records of a Regularly Conducted Activity. A

record of an act, event, condition, opinion, or diag-

nosis if:

(A) the record was made at or near the time by –

or from information transmitted by – someone with

knowledge;

(B) the record was kept in the course of a

regularly conducted activity of a uniformed service,

business, institution, association, profession, organi-

zation, occupation, or calling of any kind, whether

or not conducted for profit;

(C) making the record was a regular practice of

that activity;

(D) all these conditions are shown by the testi-

mony of the custodian or another qualified witness,

or by a certification that complies with Mil. R. Evid.

902(11) or with a statute permitting certification in a

criminal proceeding in a court of the United States;

and

(E) neither the source of information nor the

method or circumstances of preparation indicate a

lack of trustworthiness. Records of regularly con-

ducted activities include, but are not limited to, en-

listment papers, physical examination papers,

fingerprint cards, forensic laboratory reports, chain

of custody documents, morning reports and other

personnel accountability documents, service records,

officer and enlisted qualification records, logs, unit

personnel diaries, individual equipment records,

daily strength records of prisoners, and rosters of

prisoners.

(7) Absence of a Record of a Regularly Conducted

Activity. Evidence that a matter is not included in a

record described in paragraph (6) if:

(A) the evidence is admitted to prove that the

matter did not occur or exist;

(B) a record was regularly kept for a matter of

that kind; and

(C) neither the possible source of the information

nor other

cir

cu

msta

nce

s

ind

icate a lack of

trustworthiness.

(8) Public Records. A record or statement of a pub-

lic office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty

to report, but not including a matter observed by law-

enforcement personnel and other personnel act- ing

in a law enforcement capacity; or

(iii) against the government, factual findings

from a legally authorized investigation; and

(B) neither the source of information nor other

circumstances indicate a lack of trustworthiness.

Notwithstanding subdivision (8)(A)(ii), the follow-

ing are admissible as a record of a fact or event if

made by a person within the scope of the person’s

official duties and those duties included a duty to

know or to ascertain through appropriate and trust-

worthy channels of information the truth of the fact

or event and to record such fact or event: enlistment

papers, physical examination papers, fingerprint

cards, forensic laboratory reports, chain of custody

documents, morning reports and other personnel ac-

countability documents, service records, officer and

enlisted qualification records, court-martial convic-

tion records, logs, unit personnel diaries, individual

equipment records, daily strength records of prison-

ers, and rosters of prisoners.

(9) Public Records of Vital Statistics. A record of a

birth, death, or marriage, if reported to a public

office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony – or a

certification under Rule 902 – that a diligent search failed

to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove

that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office

regularly kept a record or statement for a matter of that

kind; and

(B) in a criminal case, a prosecutor who intends to offer

a certification provides a written notice of that intent at

least 14 days before trial, and the defendant does not object

in writing within 7 days of receiving the notice – unless the

court set a different time for the notice or the objection.

(11) Records of Religious Organizations Concern-

ing Personal or Family History. A statement of

birth, legitimacy, ancestry, marriage, divorce, death,

relationship by blood or marriage, or similar facts of

personal or family history, contained in a regularly

kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar

Ceremonies. A statement of fact contained in a

certificate:

(A) made by a person who is authorized by a

religious organization or by law to perform the act

certified;

(B) attesting that the person performed a marriage

or similar ceremony or administered a sacrament;

and

UPDATED MILITARY RULES OF EVIDENCE

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48

(C) purporting to have been issued at the time of

the act or within a reasonable time after it.

(13) Family Records. A statement of fact about per-

sonal or family history contained in a family record,

such as a Bible, genealogy, chart, engraving on a

ring, inscription on a portrait, or engraving on an urn

or burial marker.

(14) Records of Documents that Affect an Interest in

Property. The record of a document that purports to

establish or affect an interest in property if:

(A) the record is admitted to prove the content of

the original recorded document, along with its sign-

ing and its delivery by each person who purports to

have signed it;

(B) the record is kept in a public office;

and

(C) a statute authorizes recording documents of

that kind in that office.

(15) Statements in Documents that Affect an Interest

in Property. A statement contained in a document

that purports to establish or affect an interest in

property if the matter stated was relevant to the

document’s purpose unless later dealings with the

property are inconsistent with the truth of the state-

ment or the purport of the document.

(16) Statements in Ancient Documents. A statement

in a document that is at least 20 years old and whose

authenticity is established.

(17) Market Reports and Similar Commercial Publi-

cations. Market quotations, lists (including govern-

ment price lists), directories, or other compilations

that are generally relied on by the public or by

persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals,

or Pamphlets. A statement contained in a treatise,

periodical, or pamphlet if:

(A) the statement is called to the attention of an

expert witness on cross-examination or relied on by

the expert on direct examination; and

(B) the publication is established as a reliable au-

thority by the expert’s admission or testimony, by

another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence

but not received as an exhibit.

(19) Reputation Concerning Personal or Family

History. A reputation among a person’s family by

blood, adoption, or marriage – or among a person’s

associates or in the community – concerning the

person’s birth, adoption, legitimacy, ancestry, mar-

riage, divorce, death, relationship by blood, adop-

tion, or marriage, or similar facts of personal or

family history, age, ancestry, or other similar fact of

the person’s personal or family history.

(20) Reputation Concerning Boundaries or General

History. A reputation in a community – arising

before the controversy – concerning boundaries of

land in the community or customs that affect the

land, or concerning general historical events impor-

tant to that community, State, or nation.

(21) Reputation Concerning Character. A reputa-

tion among a person’s associates or in the commu-

nity concerning the person’s character.

(22) Judgment of a Previous Conviction. Evidence

of a final judgment of conviction if:

(A) the judgment was entered after a trial or

guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by

death, dishonorable discharge, or by imprisonment

for more than a year;

(C) the evidence is admitted to prove any fact

essential to the judgment; and

(D) when offered by the prosecution for a pur-

pose other than impeachment, the judgment was

against the accused.

The pendency of an appeal may be shown but does

not affect admissibility. In determining whether a

crime tried by court-martial was punishable by

death, dishonorable discharge, or imprisonment for

more than one year, the maximum punishment pre-

scribed by the President under Article 56 of the

Uniform of Military Justice at the time of the con-

viction applies without regard to whether the case

was tried by general, special, or summary court-

martial.

(23) Judgments Involving Personal, Family, or Gen-

eral History, or a Boundary. A judgment that is

admitted to prove a matter of personal, family, or

general history, or boundaries, if the matter:

(A) was essential to the judgment; and

(B) could be proved by evidence of reputation.

Rule 804. Exceptions to the rule against

hearsay – when the declarant Is unavailable

as a witness

(a) Criteria for Being Unavailable. A declarant is

considered to be unavailable as a witness if the

declarant:

UPDATED MILITARY RULES OF EVIDENCE

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49

(1) is exempted from testifying about the subject

matter of the declarant’s statement because the mili-

tary judge rules that a privilege applies;

(2) refuses to testify about the subject matter de-

spite the military judge’s order to do so;

(3) testifies to not remembering the subject

matter;

(4) cannot be present or testify at the trial or

hearing because of death or a then-existing infirmity,

physical illness, or mental illness; or

(5) is absent from the trial or hearing and the

statement’s proponent has not been able, by process

or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a

hearsay exception under subdivision (b)(1) or (b)(5);

(B) the declarant’s attendance or testimony, in

the case of a hearsay exception under subdivision

(b)(2), (b)(3), or (b)(4); or

(6) is unavailable within the meaning of Article

49(d)(2).

Subdivision (a) does not apply if the statement’s

proponent procured or wrongfully caused the

declarant’s unavailability as a witness in order to

prevent the declarant from attending or testifying.

(b) The Exceptions. The following are exceptions to

the rule against hearsay, and are not excluded by

that rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given by a witness at a trial, hearing,

or lawful deposition, whether given during the cur-

rent proceeding or a different one; and

(B) is now offered against a party who had an

opportunity and similar motive to develop it by di-

rect, cross-, or redirect examination.

Subject to the limitations in Articles 49 and 50, a

record of testimony given before a court-martial,

court of inquiry, military commission, other military

tribunal, or pretrial investigation under Article 32 is

admissible under subdivision (b)(1) if the record of

the testimony is a verbatim record.

(2) Statement under the Belief of Imminent Death.

In a prosecution for any offense resulting in the

death of the alleged victim, a statement that the

declarant, while believing the declarant’s death to be

imminent, made about its cause or circumstances.

(3) Statement against Interest. A statement that:

(A) a reasonable person in the declarant’s posi-

tion would have made only if the person believed it

to be true because, when made, it was so contrary to

the declarant’s proprietary or pecuniary interest or

had so great a tendency to invalidate the declarant’s

claim against someone else or to expose the

declarant to civil or criminal liability; and

(B) is supported by corroborating circum-

stances that clearly indicate its trustworthiness, if it

tends to expose the declarant to criminal liability

and is offered to exculpate the accused.

(4) Statement of Personal or Family History. A

statement about:

(A) the declarant’s own birth, adoption, legiti-

macy, ancestry, marriage, divorce, relationship by

blood or marriage, or similar facts of personal or

family history, even though the declarant had no

way of acquiring personal knowledge about that

fact; or

(B) another person concerning any of these

facts, as well as death, if the declarant was related to

the person by blood, adoption, or marriage or was so

intimately associated with the person’s family that

the declarant’s information is likely to be accurate.

(5) Other Exceptions. [Transferred to Mil.R.Evid.

807]

(6) Statement Offered against a Party that

Wrongfully Caused the Declarant’s Unavailability.

A statement offered against a party that wrongfully

caused or acquiesced in wrongfully causing the

declarant’s unavailability as a witness, and did so

intending that result.

Rule 805. Hearsay within hearsay

Hearsay within hearsay is not excluded by the

rule against hearsay if each part of the combined

statements conforms with an exception or exclusion

to the rule.

Rule 806. Attacking and supporting the

declarant’s credibility

When a hearsay statement – or a statement de-

scribed in Mil. R. Evid. 801(d)(2)(C), (D), or (E) –

has been admitted in evidence, the declarant’s credi-

bility may be attacked, and then supported, by any

evidence that would be admissible for those pur-

poses if the declarant had testified as a witness. The

military judge may admit evidence of the declarant’s

inconsistent statement or conduct, regardless of

when it occurred or whether the declarant had an

opportunity to explain or deny it. If the party against

UPDATED MILITARY RULES OF EVIDENCE

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50

whom the statement was admitted calls the declarant

as a witness, the party may examine the declarant on

the statement as if on cross-examination.

Rule 807. Residual exception.

(a) In General. Under the following circumstances,

a hearsay statement is not excluded by the rule

against hearsay even if the statement is not specifi-

cally covered by a hearsay exception in Mil. R.

Evid. 803 or 804:

(1) the statement has equivalent circumstantial

guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it

is offered than any other evidence that the proponent

can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of

these rules and the interests of justice.

(b) Notice. The statement is admissible only if,

before the trial or hearing, the proponent gives an

adverse party reasonable notice of the intent to offer

the statement and its particulars, including the

declarant’s name and address, so that the party has a

fair opportunity to meet it.

SECTION IX

AUTHENTICATION AND IDENTIFICATION

Rule 901. Authenticating or identifying

evidence

(a) In General. To satisfy the requirement of au-

thenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to sup-

port a finding that the item is what the proponent

claims it is.

(b) Examples. The following are examples only –

not a complete list – of evidence that satisfies the

requirement:

(1) Testimony of a Witness with Knowledge. Tes-

timony that an item is what it is claimed to be.

(2) Nonexpert Opinion about Handwriting. A

nonexpert’s opinion that handwriting is genuine,

based on a familiarity with it that was not acquired

for the current litigation.

(3) Comparison by an Expert Witness or the Trier

of Fact. A comparison with an authenticated speci-

men by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The

appearance, contents, substance, internal patterns, or

other distinctive characteristics of the item, taken

together with all the circumstances.

(5) Opinion about a Voice. An opinion identify-

ing a person’s voice – whether heard firsthand or

through mechanical or electronic transmission or

recording – based on hearing the voice at any time

under circumstances that connect it with the alleged

speaker.

(6) Evidence about a Telephone Conversation.

For a telephone conversation, evidence that a call

was made to the number assigned at the time to:

(A) a particular person, if circumstances, in-

cluding self-identification, show that the person

answering was the one called; or

(B) a particular business, if the call was made

to a business and the call related to business reason-

ably transacted over the telephone.

(7) Evidence about Public Records. Evidence

that:

(A) a document was recorded or filed in a pub-

lic office as authorized by law; or

(B) a purported public record or statement is

from the office where items of this kind are kept.

(8) Evidence about Ancient Documents or Data

Compilations. For a document or data compilation,

evidence that it:

(A) is in a condition that creates no suspicion

about its authenticity;

(B) was in a place where, if authentic, it would

likely be; and

(C) is at least 20 years old when offered.

(9) Evidence about a Process or System. Evi-

dence describing a process or system and showing

that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any

method of authentication or identification allowed

by a federal statute, a rule prescribed by the

Supreme Court, or an applicable regulation pre-

scribed pursuant to statutory authority.

Rule 902. Evidence that Is self-

authenticating

The following items of evidence are self-authenti-

cating; they require no extrinsic evidence of authen-

ticity in order to be admitted:

UPDATED MILITARY RULES OF EVIDENCE

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51

(1) Domestic Public Documents that are Sealed and

Signed. A document that bears:

(A) a seal purporting to be that of the United

States; any State, district, Commonwealth, territory,

or insular possession of the United States; the for-

mer Panama Canal Zone; the Trust Territory of the

Pacific Islands; a political subdivision of any of

these entities; or a department, agency, or officer of

any entity named above; and

(B) a signature purporting to be an execution or

attestation.

(2) Domestic Public Documents that are Not Sealed

but are Signed and Certified. A document that bears

no seal if:

(A) it bears the signature of an officer or em-

ployee of an entity named in subdivision (1)(A)

above; and

(B) another public officer who has a seal and

official duties within that same entity certifies under

seal – or its equivalent – that the signer has the

official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that

purports to be signed or attested by a person who is

authorized by a foreign country’s law to do so. The

document must be accompanied by a final certifica-

tion that certifies the genuineness of the signature

and official position of the signer or attester – or of

any foreign official whose certificate of genuineness

relates to the signature or attestation or is in a chain

of certificates of genuineness relating to the signa-

ture or attestation. The certification may be made by

a secretary of a United States embassy or legation;

by a consul general, vice consul, or consular agent

of the United States; or by a diplomatic or consular

official of the foreign country assigned or accredited

to the United States. If all parties have been given a

reasonable opportunity to investigate the document’s

authenticity and accuracy, the military judge may,

for good cause, either:

(A) order that it be treated as presumptively au-

thentic without final certification; or

(B) allow it to be evidenced by an attested sum-

mary with or without final certification.

(4) Certified Copies of Public Records. A copy of

an official record – or a copy of a document that

was recorded or filed in a public office as authorized

by law – if the copy is certified as correct by:

(A) the custodian or another person authorized to

make the certification; or

(B) a certificate that complies with subdivision

(1), (2), or (3) above, a federal statute, a rule pre-

scribed by the Supreme Court, or an applicable regu-

lation prescribed pursuant to statutory authority.

(4a) Documents or Records of the United States Ac-

companied by Attesting Certificates. Documents or

records kept under the authority of the United States

by any department, bureau, agency, office, or court

thereof when attached to or accompanied by an at-

testing certificate of the custodian of the document

or record without further authentication.

(5) Official Publications. A book, pamphlet, or

other publication purporting to be issued by a public

authority.

(6) Newspapers and Periodicals. Printed material

purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription,

sign, tag, or label purporting to have been affixed in

the course of business and indicating origin, owner-

ship, or control.

(8) Acknowledged Documents. A document accom-

panied by a certificate of acknowledgment that is

lawfully executed by a notary public or another offi-

cer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents.

Commercial paper, a signature on it, and related

documents, to the extent allowed by general com-

mercial law.

(10) Presumptions under a Federal Statute or Regu-

lation. A signature, document, or anything else that

a federal statute, or an applicable regulation pre-

scribed pursuant to statutory authority, declares to be

presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly

Conducted Activity. The original or a copy of a

domestic record that meets the requirements of Mil.

R. Evid. 803(6)(A)-(C), as shown by a certification

of the custodian or another qualified person that

complies with a federal statute or a rule prescribed

by the Supreme Court. Before the trial or hearing, or

at a later time that the military judge allows for

good cause, the proponent must give an adverse

party reasonable written notice of the intent to offer

the record and must make the record and certifica-

tion available for inspection so that the party has a

fair opportunity to challenge them.

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52

Rule 903. Subscribing witness’s testimony

A subscribing witness’s testimony is necessary to

authenticate a writing only if required by the law of

the jurisdiction that governs its validity.

SECTION

X

CONTENTS OF WRITINGS, RECORDINGS,

AND PHOTOGRAPHS

Rule 1001. Definitions that apply to this

section

In this section:

(a) A “writing” consists of letters, words, numbers,

or their equivalent set down in any form.

(b) A “recording” consists of letters, words, num-

bers, or their equivalent recorded in any manner.

(c) A “photograph” means a photolineart image or

its equivalent stored in any form.

(d) An “original” of a writing or recording means

the writing or recording itself or any counterpart

intended to have the same effect by the person who

executed or issued it. For electronically stored infor-

mation, “original” means any printout or other out-

put readable by sight if it accurately reflects the

information. An “original” of a photograph includes

the negative or a print from it.

(e) A “duplicate” means a counterpart produced by

a mechanical, photolineart, chemical, electronic, or

other equivalent process or technique that accurately

reproduces the original.

Rule 1002. Requirement of the original

An original writing, recording, or photograph is

required in order to prove its content unless these

rules, this Manual, or a federal statute provides

otherwise.

Rule 1003. Admissibility of duplicates

A duplicate is admissible to the same extent as the

original unless a genuine question is raised about the

original’s authenticity or the circumstances make it

unfair to admit the duplicate.

Rule 1004. Admissibility of other evidence of

content

An original is not required and other evidence of

the content of a writing, recording, or photograph is

admissible if:

(a) Originals lost or destroyed. all the originals are

lost or destroyed, and not by the proponent acting in

bad faith;

(b) Original not obtainable. an original cannot be

obtained by any available judicial process;

(c) Original in possession of opponent. the party

against whom the original would be offered had

control of the original; was at that time put on no-

tice, by pleadings or otherwise, that the original

would be a subject of proof at the trial or hearing;

and fails to produce it at the trial or hearing; or

(d) Collateral matters. the writing, recording, or

photograph is not closely related to a controlling

issue.

Rule 1005. Copies of public records to prove

content

The proponent may use a copy to prove the con-

tent of an official record – or of a document that

was recorded or filed in a public office as authorized

by law – if these conditions are met: the record or

document is otherwise admissible; and the copy is

certified as correct in accordance with Mil. R. Evid.

902(4) or is testified to be correct by a witness who

has compared it with the original. If no such copy

can be obtained by reasonable diligence, then the

proponent may use other evidence to prove the

content.

Rule 1006. Summaries to prove content

The proponent may use a summary, chart, or cal-

culation to prove the content of voluminous writ-

ings, recordings, or photographs that cannot be

conveniently examined in court. The proponent must

make the originals or duplicates available for exami-

nation or copying, or both, by other parties at a

reasonable time or place. The military judge may

order the proponent to produce them in court.

Rule 1007. Testimony or statement of a

party to prove content

The proponent may prove the content of a writing,

recording, or photograph by the testimony, deposi-

tion, or written statement of the party against whom

UPDATED MILITARY RULES OF EVIDENCE

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53

the evidence is offered. The proponent need not ac-

count for the original.

Rule 1008. Functions of the military judge

and the members

Ordinarily, the military judge determines whether

the proponent has fulfilled the factual conditions for

admitting other evidence of the content of a writing,

recording, or photograph under Mil. R. Evid. 1004

or 1005. When a court-martial is composed of a

military judge and members, the members determine

– in accordance with Mil. R. Evid. 104(b) – any

issue about whether:

(a) an asserted writing, recording, or photograph

ever existed;

(b) another one produced at the trial or hearing is

the original; or

(c) other evidence of content accurately reflects the

content.

SECTION XI

MISCELLANEOUS RULES

Rule 1101. Applicability of these rules

(a) In General. Except as otherwise provided in this

Manual, these rules apply generally to all courts-

martial, including summary courts-martial, Article

39(a) sessions, limited factfinding proceedings or-

dered on review, proceedings in revision, and con-

tempt proceedings other than contempt proceedings

in which the judge may act summarily.

(b) Rules Relaxed. The application of these rules

may be relaxed in presentencing proceedings as pro-

vided under R.C.M. 1001 and otherwise as provided

in this Manual.

(c) Rules on Privilege. The rules on privilege apply

at all stages of a case or proceeding.

(d) Exceptions. These rules – except for Mil. R.

Evid. 412 and those on privilege – do not apply to

the following:

(1) the military judge’s determination, under Rule

104(a), on a preliminary question of fact governing

admissibility;

(2) pretrial investigations under Article 32;

(3) proceedings for vacation of suspension of sen-

tence under Article 72; and

(4) miscellaneous actions and proceedings related

to search authorizations, pretrial restraint, pretrial

confinement, or other proceedings authorized under

the Uniform Code of Military Justice or this Manual

that are not listed in subdivision (a).

Rule 1102. Amendments

(a) General Rule. Amendments to the Federal Rules

of Evidence – other than Articles III and V – will

amend parallel provisions of the Military Rules of

Evidence by operation of law 18 months after the

effective date of such amendments, unless action to

the contrary is taken by the President.

(b) Rules Determined Not to Apply. The President

has determined that the following Federal Rules of

Evidence do not apply to the Military Rules of Evi-

dence: Rules 301, 302, 415, and 902(12).

Rule 1103. Title

These rules may be cited as the Military Rules of

Evidence.