65062 Federal Register / Vol. 76, No. 202 / Wednesday, October 19, 2011 / Notices 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[Docket ID DoD–2011–OS–0112] 

Manual for Courts-Martial; Proposed 

Evidence Amendments 

AGENCY: Joint Service Committee on 

Military Justice (JSC), DoD. 

ACTION: Notice of Proposed 

Amendments to the Military Rules of 

Evidence in the Manual for CourtsMartial, United States (2008 ed.) (MCM) 

and Notice of Public Meeting. 

SUMMARY: The Department of Defense is 

recommending changes to the Manual 

for Courts-Martial, United States (2008 

Edition) (MCM). The proposed changes 

incorporate the restyled Federal Rules of 

Evidence (FRE) approved by the U.S. 

Supreme Court on 26 April 2011 and 

which will take effect, pursuant to the 

Rules Enabling Act, on 1 December 

2011. In accordance with 10 U.S.C. 936 

and Military Rule of Evidence (MRE) 

1102(a), amendments to the FRE will 

automatically amend parallel provisions 

of the MRE eighteen months after the 

effective date of such amendments, 

absent contrary action by the President. 

The MCM and DoD Directive 5500.17, 

‘‘Role and Responsibilities of the Joint 

Service Committee (JSC) on Military 

Justice,’’ May 3, 2003, require the JSC to 

assist the President in fulfilling his 

rulemaking responsibilities under 10 

U.S.C. 936. These proposed changes 

have not been coordinated within the 

Department of Defense under DoD 

Directive 5500.1, ‘‘Preparation, 

Processing and Coordinating 

Legislation, Executive Orders, 

Proclamations, Views Letters 

Testimony,’’ June 15, 2007, and do not 

constitute the official position of the 

Department of Defense, the Military 

Departments, or any other Government 

agency. 

This notice is provided in accordance 

with DoD Directive 5500.17, ‘‘Role and 

Responsibilities of the Joint Service 

Committee (JSC) on Military Justice,’’ 

May 3, 2003. This notice is intended 

only to improve the internal 

management of the Federal Government. 

It is not intended to create any right or 

benefit, substantive or procedural, 

enforceable at law by any party against 

the United States, its agencies, its 

officers, or any person. This notice also 

sets forth the date, time and location for 

the public meeting of the JSC to discuss 

the proposed changes. For easier 

viewing and comparison to the federal 

rules, the proposed amendments to the 

Military Rules of Evidence described 

below can be viewed in a Word or Excel 

document at the following Web site: 

http://www.dod.gov/dodgc/ 

jsc_business.html. 

DATES: Comments on the proposed 

changes must be received no later than 

December 9, 2011, to be assured 

consideration by the JSC. A public 

meeting for comments will be held on 

November 17, 2011, at 10 a.m. in the 

Court of Appeals for the Armed Forces, 

450 E Street, NW., Washington, DC 

20442–0001. 

ADDRESSES: You may submit comments, 

identified by docket number and title, 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

(Suggested keywords: Evidence, Rules, 

Joint Service Committee) 

• Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

2nd Floor, East Tower, Suite 02G09, 

Alexandria, VA 22350–3100. 

Instructions: All submissions received 

must include the agency name and 

docket number for this Federal Register 

document. The general policy for 

comments and other submissions from 

members of the public is to make these 

submissions available for public 

viewing on the Internet at http:// 

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Lieutenant Colonel Christopher A. 

Kennebeck, Executive Secretary, Joint 

Service Committee on Military Justice, 

Office of the Judge Advocate General, 

Criminal Law Division, 2200 Pentagon, 

Room 3B548, Washington DC, 32101– 

2200, (571) 256–8136, e-mail 

c.kennebeck@conus.army.mil. 

SUPPLEMENTARY INFORMATION: The 

proposed amendments by Executive 

Order to the MCM are as follows: 

Section 1. Part III of the Manual for 

Courts-Martial, United States, is revised 

to read as follows: 

Rule 101. Scope 

(a) Scope. These rules apply to courtmartial proceedings to the extent and 

with the exceptions stated in Mil. R. 

Evid. 1101. 

(b) Sources of Law. In the absence of 

guidance in this Manual or these rules, 

courts-martial will apply: 

(1) First, the Federal Rules of 

Evidence and the case law interpreting 

them; and 

(2) Second, when not inconsistent 

with subdivision (b)(1), the rules of 

evidence at common law. 

(c) Rule of construction. Except as 

otherwise provided in these rules, the 

term ‘‘military judge’’ includes the 

president of a special court-martial 

without a military judge and a summary 

court-martial officer. 

(d) Definition. In these rules, a ‘‘rule 

prescribed by the Supreme Court’’ 

means a rule adopted by the Supreme 

Court under statutory authority. 

Rule 102. Purpose 

These rules should be construed so as 

to administer every proceeding fairly, 

eliminate unjustifiable expense and 

delay, and promote the development of 

evidence law, to the end of ascertaining 

the truth and securing a just 

determination. 

Rule 103. Rulings on Evidence 

(a) Preserving a Claim of Error. A 

party may claim error in a ruling to 

admit or exclude evidence only if the 

error materially prejudices a substantial 

right of the party and: 

(1) If the ruling admits evidence, a 

party, on the record: 

(A) Timely objects or moves to strike; 

and 

(B) States the specific ground, unless 

it was apparent from the context; or 

(2) If the ruling excludes evidence, a 

party informs the military judge of its 

substance by an offer of proof, unless 

the substance was apparent from the 

context. 

(b) Not Needing to Renew an 

Objection or Offer of Proof. Once the 

military judge rules definitively on the 

record admitting or excluding evidence, 

either before or at trial, a party need not 

renew an objection or offer of proof to 

preserve a claim of error for appeal. 

(c) Review of Constitutional Error. 

The standard provided in this 

subdivision does not apply to errors 

implicating the United States 

Constitution as it applies to members of 

the armed forces, unless the error arises 

under these rules and this subdivision 

provides a standard that is more 

advantageous to the accused than the 

constitutional standard. 

(d) Military Judge’s Statement about 

the Ruling; Directing an Offer of Proof. 

The military judge may make any 

statement about the character or form of 

the evidence, the objection made, and 

the ruling. The military judge may 

direct that an offer of proof be made in 

question-and-answer form. 

(e) Preventing the Members from 

Hearing Inadmissible Evidence. In a 

court-martial composed of a military 

judge and members, to the extent 

practicable, the military judge must 

conduct a trial so that inadmissible 

evidence is not suggested to the 

members by any means. 


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(f) Taking Notice of Plain Error. A 

military judge may take notice of a plain 

error that materially prejudices a 

substantial right, even if the claim of 

error was not properly preserved. 

Rule 104. Preliminary Questions 

(a) In General. The military judge 

must decide any preliminary question 

about whether a witness is available or 

qualified, a privilege exists, a 

continuance should be granted, or 

evidence is admissible. In so deciding, 

the military judge is not bound by 

evidence rules, except those on 

privilege. 

(b) Relevance that Depends on a Fact. 

When the relevance of evidence 

depends on whether a fact exists, proof 

must be introduced sufficient to support 

a finding that the fact does exist. The 

military judge may admit the proposed 

evidence on the condition that the proof 

be introduced later. A ruling on the 

sufficiency of evidence to support a 

finding of fulfillment of a condition of 

fact is the sole responsibility of the 

military judge, except where these rules 

or this Manual provide expressly to the 

contrary. 

(c) Conducting a Hearing so that the 

Members Cannot Hear It. Except in 

cases tried before a special court-martial 

without a military judge, the military 

judge must conduct any hearing on a 

preliminary question so that the 

members cannot hear it if: 

(1) The hearing involves the 

admissibility of a statement of the 

accused under Mil. R. Evid. 301–306; 

(2) The accused is a witness and so 

requests; or 

(3) Justice so requires. 

(d) Cross-Examining the Accused. By 

testifying on a preliminary question, the 

accused does not become subject to 

cross-examination on other issues in the 

case. 

(e) Evidence Relevant to Weight and 

Credibility. This rule does not limit a 

party’s right to introduce before the 

members evidence that is relevant to the 

weight or credibility of other evidence. 

Rule 105. Limiting Evidence That Is Not 

Admissible Against Other Parties or for 

Other Purposes 

If the military judge admits evidence 

that is admissible against a party or for 

a purpose—but not against another 

party or for another purpose—the 

military judge, on timely request, must 

restrict the evidence to its proper scope 

and instruct the members accordingly. 

Rule 106. Remainder of or Related 

Writings or Recorded Statements 

If a party introduces all or part of a 

writing or recorded statement, an 

adverse party may require the 

introduction, at that time, of any other 

part—or any other writing or recorded 

statement—that in fairness ought to be 

considered at the same time. 

Rule 201. Judicial Notice of 

Adjudicative Facts 

(a) Scope. This rule governs judicial 

notice of an adjudicative fact only, not 

a legislative fact. 

(b) Kinds of Facts That May Be 

Judicially Noticed. The military judge 

may judicially notice a fact that is not 

subject to reasonable dispute because it: 

(1) Is generally known universally, 

locally, or in the area pertinent to the 

event; or 

(2) Can be accurately and readily 

determined from sources whose 

accuracy cannot reasonably be 

questioned. 

(c) Taking Notice. The military judge: 

(1) May take judicial notice whether 

requested or not; or 

(2) Must take judicial notice if a party 

requests it and the military judge is 

supplied with the necessary 

information. 

The military judge must inform the 

parties in open court when, without 

being requested, he or she takes judicial 

notice of an adjudicative fact essential 

to establishing an element of the case. 

(d) Timing. The military judge may 

take judicial notice at any stage of the 

proceeding. 

(e) Opportunity to Be Heard. On 

timely request, a party is entitled to be 

heard on the propriety of taking judicial 

notice and the nature of the fact to be 

noticed. If the military judge takes 

judicial notice before notifying a party, 

the party, on request, is still entitled to 

be heard. 

(f) Instructing the Members. The 

military judge must instruct the 

members that they may or may not 

accept the noticed fact as conclusive. 

Rule 202. Judicial Notice of Law 

(a) Domestic Law. The military judge 

may take judicial notice of domestic 

law. If a domestic law is a fact that is 

of consequence to the determination of 

the action, the procedural requirements 

of Mil. R. Evid. 201—except Rule 

201(f)—apply. 

(b) Foreign Law. A party who intends 

to raise an issue concerning the law of 

a foreign country must give reasonable 

written notice. The military judge, in 

determining foreign law, may consider 

any relevant material or source, in 

accordance with Mil. R. Evid. 104. Such 

a determination is a ruling on a question 

of law. 

Rule 301. Privilege Concerning 

Compulsory Self-Incrimination 

(a) General Rule. An individual may 

claim the most favorable privilege 

provided by the Fifth Amendment to the 

United States Constitution, Article 31, 

or these rules. The privileges against 

self-incrimination are applicable only to 

evidence of a testimonial or 

communicative nature. 

(b) Standing. The privilege of a 

witness to refuse to respond to a 

question that may tend to incriminate 

the witness is a personal one that the 

witness may exercise or waive at the 

discretion of the witness. 

(c) Limited Waiver. An accused who 

chooses to testify as a witness waives 

the privilege against self-incrimination 

only with respect to the matters about 

which he or she testifies. If the accused 

is on trial for two or more offenses and 

on direct examination testifies on the 

merits about only one or some of the 

offenses, the accused may not be crossexamined as to guilt or innocence with 

respect to the other offenses unless the 

cross-examination is relevant to an 

offense concerning which the accused 

has testified. This waiver is subject to 

Mil. R. Evid. 608(b). 

(d) Exercise of the Privilege. If a 

witness states that the answer to a 

question may tend to incriminate him or 

her, the witness cannot be required to 

answer unless the military judge finds 

that the facts and circumstances are 

such that no answer the witness might 

make to the question would tend to 

incriminate the witness or that the 

witness has, with respect to the 

question, waived the privilege against 

self-incrimination. A witness may not 

assert the privilege if he or she is not 

subject to criminal penalty as a result of 

an answer by reason of immunity, 

running of the statute of limitations, or 

similar reason. 

(1) Immunity Requirements. The 

minimum grant of immunity adequate 

to overcome the privilege is that which 

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

authority provides that neither the 

testimony of the witness nor any 

evidence obtained from that testimony 

may be used against the witness at any 

subsequent trial other than in a 

prosecution for perjury, false swearing, 

the making of a false official statement, 

or failure to comply with an order to 

testify after the military judge has ruled 

that the privilege may not be asserted by 

reason of immunity. 

(2) Notification of Immunity or 

Leniency. When a prosecution witness 

before a court-martial has been granted 

immunity or leniency in exchange for 

testimony, the grant must be reduced to 


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writing and must be served on the 

accused prior to arraignment or within 

a reasonable time before the witness 

testifies. If notification is not made as 

required by this rule, the military judge 

may grant a continuance until 

notification is made, prohibit or strike 

the testimony of the witness, or enter 

such other order as may be required. 

(e) Waiver of the Privilege. A witness 

who answers a self-incriminating 

question without having asserted the 

privilege against self-incrimination may 

be required to answer questions relevant 

to the disclosure, unless the questions 

are likely to elicit additional selfincriminating information. 

(1) If a witness asserts the privilege 

against self-incrimination on crossexamination, the military judge, upon 

motion, may strike the direct testimony 

of the witness in whole or in part, 

unless the matters to which the witness 

refuses to testify are purely collateral. 

(2) Any limited waiver of the privilege 

under this subdivision (e) applies only 

at the trial in which the answer is given, 

does not extend to a rehearing or new 

or other trial, and is subject to Mil. R. 

Evid. 608(b). 

(f) Effect of Claiming the Privilege. 

(1) No Inference To Be Drawn. The 

fact that a witness has asserted the 

privilege against self-incrimination 

cannot be considered as raising any 

inference unfavorable to either the 

accused or the government. 

(2) Pretrial Invocation Not 

Admissible. The fact that the accused 

during official questioning and in 

exercise of rights under the Fifth 

Amendment to the United States 

Constitution or Article 31 remained 

silent, refused to answer a certain 

question, requested counsel, or 

requested that the questioning be 

terminated, is not admissible against the 

accused. 

(3) Instructions Regarding the 

Privilege. When the accused does not 

testify at trial, defense counsel may 

request that the members of the court be 

instructed to disregard that fact and not 

to draw any adverse inference from it. 

Defense counsel may request that the 

members not be so instructed. Defense 

counsel’s election will be binding upon 

the military judge except that the 

military judge may give the instruction 

when the instruction is necessary in the 

interests of justice. 

Rule 302. Privilege Concerning Mental 

Examination of an Accused 

(a) General Rule. The accused has a 

privilege to prevent any statement made 

by the accused at a mental examination 

ordered under R.C.M. 706 and any 

derivative evidence obtained through 

use of such a statement from being 

received into evidence against the 

accused on the issue of guilt or 

innocence or during sentencing 

proceedings. This privilege may be 

claimed by the accused notwithstanding 

the fact that the accused may have been 

warned of the rights provided by Mil. R. 

Evid. 305 at the examination. 

(b) Exceptions. 

(1) There is no privilege under this 

rule when the accused first introduces 

into evidence such statements or 

derivative evidence. 

(2) If the court-martial has allowed the 

defense to present expert testimony as 

to the mental condition of the accused, 

an expert witness for the prosecution 

may testify as to the reasons for his or 

her conclusions, but such testimony 

may not extend to statements of the 

accused except as provided in (1). 

(c) Release of Evidence from an 

R.C.M. 706 Examination. If the defense 

offers expert testimony concerning the 

mental condition of the accused, the 

military judge, upon motion, must order 

the release to the prosecution of the full 

contents, other than any statements 

made by the accused, of any report 

prepared pursuant to R.C.M. 706. If the 

defense offers statements made by the 

accused at such examination, the 

military judge, upon motion, may order 

the disclosure of such statements made 

by the accused and contained in the 

report as may be necessary in the 

interests of justice. 

(d) Noncompliance by the Accused. 

The military judge may prohibit an 

accused who refuses to cooperate in a 

mental examination authorized under 

R.C.M. 706 from presenting any expert 

medical testimony as to any issue that 

would have been the subject of the 

mental examination. 

(e) Procedure. The privilege in this 

rule may be claimed by the accused 

only under the procedure set forth in 

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

motion to suppress. 

Rule 303. Degrading Questions 

Statements and evidence are 

inadmissible if they are not material to 

the issue and may tend to degrade the 

person testifying. 

Rule 304. Confessions and Admissions 

(a) General Rule. If the accused makes 

a timely motion or objection under this 

rule, an involuntary statement from the 

accused, or any evidence derived 

therefrom, is inadmissible at trial except 

as provided in subdivision (e). 

(1) Definitions. As used in this rule: 

(A) ‘‘Involuntary statement’’ means a 

statement obtained in violation of the 

self-incrimination privilege or due 

process clause of the Fifth Amendment 

to the United States Constitution, 

Article 31, or through the use of 

coercion, unlawful influence, or 

unlawful inducement. 

(B) ‘‘Confession’’ means an 

acknowledgment of guilt. 

(C) ‘‘Admission’’ means a selfincriminating statement falling short of 

an acknowledgment of guilt, even if it 

was intended by its maker to be 

exculpatory. 

(2) Failure to deny an accusation of 

wrongdoing is not an admission of the 

truth of the accusation if at the time of 

the alleged failure the person was under 

investigation or was in confinement, 

arrest, or custody for the alleged 

wrongdoing. 

(b) Evidence Derived from a 

Statement of the Accused. When the 

defense has made an appropriate and 

timely motion or objection under this 

rule, evidence derived from a statement 

of the accused may not be admitted 

unless the military judge finds by a 

preponderance of the evidence that: 

(1) The statement was made 

voluntarily, 

(2) The allegedly derivative evidence 

was not obtained by use of the accused’s 

statement, or 

(3) The evidence would have been 

obtained even if the statement had not 

been made. 

(c) Corroboration of a Confession or 

Admission. 

(1) An admission or a confession of 

the accused may be considered as 

evidence against the accused on the 

question of guilt or innocence only if 

independent evidence, either direct or 

circumstantial, has been admitted into 

evidence that corroborates the essential 

facts admitted to justify sufficiently an 

inference of their truth. 

(2) Other uncorroborated confessions 

or admissions of the accused that would 

themselves require corroboration may 

not be used to supply this independent 

evidence. If the independent evidence 

raises an inference of the truth of some 

but not all of the essential facts 

admitted, then the confession or 

admission may be considered as 

evidence against the accused only with 

respect to those essential facts stated in 

the confession or admission that are 

corroborated by the independent 

evidence. 

(3) Corroboration is not required for a 

statement made by the accused before 

the court by which the accused is being 

tried, for statements made prior to or 

contemporaneously with the act, or for 

statements offered under a rule of 

evidence other than that pertaining to 

the admissibility of admissions or 

confessions. 


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(4) Quantum of Evidence Needed. The 

independent evidence necessary to 

establish corroboration need not be 

sufficient of itself to establish beyond a 

reasonable doubt the truth of facts stated 

in the admission or confession. The 

independent evidence need raise only 

an inference of the truth of the essential 

facts admitted. The amount and type of 

evidence introduced as corroboration is 

a factor to be considered by the trier of 

fact in determining the weight, if any, to 

be given to the admission or confession. 

(5) Procedure. The military judge 

alone will determine when adequate 

evidence of corroboration has been 

received. Corroborating evidence must 

be introduced before the admission or 

confession is introduced unless the 

military judge allows submission of 

such evidence subject to later 

corroboration. 

(d) Disclosure of Statements by the 

Accused and Derivative Evidence. 

Before arraignment, the prosecution 

must disclose to the defense the 

contents of all statements, oral or 

written, made by the accused that are 

relevant to the case, known to the trial 

counsel, and within the control of the 

armed forces, and all evidence derived 

from such statements, that the 

prosecution intends to offer against the 

accused. 

(e) Limited Use of an Involuntary 

Statement. A statement obtained in 

violation of Article 31 or Mil. R. Evid. 

305(a)–(c) may be used only: 

(1) To impeach by contradiction the 

in-court testimony of the accused; or 

(2) In a later prosecution against the 

accused for perjury, false swearing, or 

the making of a false official statement. 

(f) Motions and Objections. 

(1) Motions to suppress or objections 

under this rule, or Mil. R. Evid. 302 or 

305, to any statement or derivative 

evidence that has been disclosed must 

be made by the defense prior to 

submission of a plea. In the absence of 

such motion or objection, the defense 

may not raise the issue at a later time 

except as permitted by the military 

judge for good cause shown. Failure to 

so move or object constitutes a waiver 

of the objection. 

(2) If the prosecution seeks to offer a 

statement made by the accused or 

derivative evidence that was not 

disclosed before arraignment, the 

prosecution must provide timely notice 

to the military judge and defense 

counsel. The defense may object at that 

time and the military judge may make 

such orders as are required in the 

interests of justice. 

(3) The defense may present evidence 

relevant to the admissibility of evidence 

as to which there has been an objection 

or motion to suppress under this rule. 

An accused may testify for the limited 

purpose of denying that the accused 

made the statement or that the statement 

was made voluntarily. 

(A) Prior to the introduction of such 

testimony by the accused, the defense 

must inform the military judge that the 

testimony is offered under this 

subdivision. 

(B) When the accused testifies under 

this subdivision, the accused may be 

cross-examined only as to the matter on 

which he or she testifies. Nothing said 

by the accused on either direct or crossexamination may be used against the 

accused for any purpose other than in 

a prosecution for perjury, false 

swearing, or the making of a false 

official statement. 

(4) Specificity. The military judge 

may require the defense to specify the 

grounds upon which the defense moves 

to suppress or object to evidence. If 

defense counsel, despite the exercise of 

due diligence, has been unable to 

interview adequately those persons 

involved in the taking of a statement, 

the military judge may make any order 

required in the interests of justice, 

including authorization for the defense 

to make a general motion to suppress or 

general objection. 

(5) Rulings. The military judge must 

rule, prior to plea, upon any motion to 

suppress or objection to evidence made 

prior to plea unless, for good cause, the 

military judge orders that the ruling be 

deferred for determination at trial or 

after findings. The military judge may 

not defer ruling if doing so adversely 

affects a party’s right to appeal the 

ruling. The military judge must state 

essential findings of fact on the record 

when the ruling involves factual issues. 

(6) Burden of Proof. When the defense 

has made an appropriate motion or 

objection under this rule, the 

prosecution has the burden of 

establishing the admissibility of the 

evidence. When the military judge has 

required a specific motion or objection 

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

the prosecution extends only to the 

grounds upon which the defense moved 

to suppress or object to the evidence. 

(7) Standard of Proof. The military 

judge must find by a preponderance of 

the evidence that a statement by the 

accused was made voluntarily before it 

may be received into evidence. When 

trial is by a special court-martial 

without a military judge, a 

determination by the president of the 

court that a statement was made 

voluntarily is subject to objection by any 

member of the court. When such 

objection is made, it will be resolved 

pursuant to R.C.M. 801(e)(3)(C). 

(8) Effect of Guilty Plea. Except as 

otherwise expressly provided in R.C.M. 

910(a)(2), a plea of guilty to an offense 

that results in a finding of guilty waives 

all privileges against self-incrimination 

and all motions and objections under 

this rule with respect to that offense 

regardless of whether raised prior to 

plea. 

(g) Weight of the Evidence. If a 

statement is admitted into evidence, the 

military judge must permit the defense 

to present relevant evidence with 

respect to the voluntariness of the 

statement and must instruct the 

members to give such weight to the 

statement as it deserves under all the 

circumstances. 

(h) Completeness. If only part of an 

alleged admission or confession is 

introduced against the accused, the 

defense, by cross-examination or 

otherwise, may introduce the remaining 

portions of the statement. 

(i) Evidence of an Oral Statement. A 

voluntary oral confession or admission 

of the accused may be proved by the 

testimony of anyone who heard the 

accused make it, even if it was reduced 

to writing and the writing is not 

accounted for. 

(j) Refusal To Obey an Order To 

Submit a Body Substance. If an accused 

refuses a lawful order to submit for 

chemical analysis a sample of his or her 

blood, breath, urine or other body 

substance, evidence of such refusal may 

be admitted into evidence on: 

(1) A charge of violating an order to 

submit such a sample; or 

(2) Any other charge on which the 

results of the chemical analysis would 

have been admissible. 

Rule 305. Warnings About Rights 

(a) General Rule. A statement 

obtained in violation of this rule is 

involuntary and will be treated under 

Mil. R. Evid. 304. 

(1) Article 31 Rights Advisory. A 

statement obtained from the accused in 

violation of the accused’s rights under 

Article 31 is involuntary and therefore 

inadmissible against the accused except 

as provided in subdivision (d). 

(2) Fifth Amendment Right to 

Counsel. If a person suspected of an 

offense and subjected to custodial 

interrogation requests counsel, any 

statement made in the interrogation, or 

evidence derived from the interrogation, 

is inadmissible against the accused 

unless counsel was present for the 

interrogation. 

(3) Sixth Amendment Right to 

Counsel. If an accused against whom 

charges have been preferred is 

interrogated on matters concerning the 

preferred charges by anyone acting in a 


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law enforcement capacity, or the agent 

of such a person, and the accused 

requests counsel, or if the accused has 

appointed or retained counsel, any 

statement made in the interrogation, or 

evidence derived from the interrogation, 

is inadmissible unless counsel was 

present for the interrogation. 

(4) Definitions. As used in this rule: 

(A) ‘‘Person subject to the code’’ 

means a person subject to the Uniform 

Code of Military Justice, as defined by 

Article 2, and includes a knowing agent 

of any such person or of a military unit. 

(B) ‘‘Interrogation’’ means any formal 

or informal questioning in which an 

incriminating response either is sought 

or is a reasonable consequence of such 

questioning. 

(C) ‘‘Custodial interrogation’’ means 

questioning that takes place while the 

accused or suspect is in custody, could 

reasonably believe himself or herself to 

be in custody, or is otherwise deprived 

of his or her freedom of action in any 

significant way. 

(b) Provision of Counsel. When a 

person entitled to counsel under this 

rule requests counsel, a judge advocate 

or an individual certified in accordance 

with Article 27(b) will be provided by 

the United States at no expense to the 

person and without regard to the 

person’s indigency before the 

interrogation may proceed. In addition 

to counsel supplied by the United 

States, the person may retain civilian 

counsel at no expense to the United 

States. Unless otherwise provided by 

regulations of the Secretary concerned, 

an accused or suspect does not have a 

right under this rule to have military 

counsel of his or her own selection. 

(c) Waiver. 

(1) Waiver of the Privilege Against 

Self-Incrimination. After receiving 

applicable warnings under this rule, a 

person may waive the rights described 

therein and in Mil. R. Evid. 301 and 

make a statement. The waiver must be 

made freely, knowingly, and 

intelligently. A written waiver is not 

required. The accused or suspect must 

affirmatively acknowledge that he or she 

understands the rights involved, 

affirmatively decline the right to 

counsel, and affirmatively consent to 

making a statement. 

(2) Waiver of the Right to Counsel. If 

the right to counsel is applicable under 

this rule and the accused or suspect 

does not decline affirmatively the right 

to counsel, the prosecution must 

demonstrate by a preponderance of the 

evidence that the individual waived the 

right to counsel. 

(3) Waiver After Initially Invoking the 

Right to Counsel. 

(A) Fifth Amendment Right to 

Counsel. If an accused or suspect 

subjected to custodial interrogation 

requests counsel, any subsequent waiver 

of the right to counsel obtained during 

a custodial interrogation concerning the 

same or different offenses is invalid 

unless the prosecution can demonstrate 

by a preponderance of the evidence that: 

(i) The accused or suspect initiated 

the communication leading to the 

waiver; or 

(ii) The accused or suspect has not 

continuously had his or her freedom 

restricted by confinement, or other 

means, during the period between the 

request for counsel and the subsequent 

waiver. 

(B) Sixth Amendment Right to 

Counsel. If an accused or suspect 

interrogated after preferral of charges as 

described in subdivision (c)(1) requests 

counsel, any subsequent waiver of the 

right to counsel obtained during an 

interrogation concerning the same 

offenses is invalid unless the 

prosecution can demonstrate by a 

preponderance of the evidence that the 

accused or suspect initiated the 

communication leading to the waiver. 

(d) Standards for Nonmilitary 

Interrogations. 

(1) United States Civilian 

Interrogations. When a person subject to 

the code is interrogated by an official or 

agent of the United States, of the District 

of Columbia, or of a State, 

Commonwealth, or possession of the 

United States, or any political 

subdivision of such a State, 

Commonwealth, or possession, the 

person’s entitlement to rights warnings 

and the validity of any waiver of 

applicable rights will be determined by 

the principles of law generally 

recognized in the trial of criminal cases 

in the United States district courts 

involving similar interrogations. 

(2) Foreign Interrogations. Warnings 

under Article 31 and the Fifth and Sixth 

Amendments to the United States 

Constitution are not required during an 

interrogation conducted outside of a 

State, district, commonwealth, territory, 

or possession of the United States by 

officials of a foreign government or their 

agents unless such interrogation is 

conducted, instigated, or participated in 

by military personnel or their agents or 

by those officials or agents listed in 

subdivision (d)(1). A statement obtained 

from a foreign interrogation is 

admissible unless the statement is 

obtained through the use of coercion, 

unlawful influence, or unlawful 

inducement. An interrogation is not 

‘‘participated in’’ by military personnel 

or their agents or by the officials or 

agents listed in subdivision (d)(1) 

merely because such a person was 

present at an interrogation conducted in 

a foreign nation by officials of a foreign 

government or their agents, or because 

such a person acted as an interpreter or 

took steps to mitigate damage to 

property or physical harm during the 

foreign interrogation. 

Rule 306. Statements by One of Several 

Accused 

When two or more accused are tried 

at the same trial, evidence of a statement 

made by one of them which is 

admissible only against him or her or 

only against some but not all of the 

accused may not be received in 

evidence unless all references 

inculpating an accused against whom 

the statement is inadmissible are 

deleted effectively or the maker of the 

statement is subject to crossexamination. 

Rule 311. Evidence Obtained From 

Unlawful Searches and Seizures 

(a) General Rule. Evidence obtained as 

a result of an unlawful search or seizure 

made by a person acting in a 

governmental capacity is inadmissible 

against the accused if: 

(1) The accused makes a timely 

motion to suppress or an objection to 

the evidence under this rule; and 

(2) The accused had a reasonable 

expectation of privacy in the person, 

place or property searched; the accused 

had a legitimate interest in the property 

or evidence seized when challenging a 

seizure; or the accused would otherwise 

have grounds to object to the search or 

seizure under the Constitution of the 

United States as applied to members of 

the armed forces. 

(b) Definition. As used in this rule, a 

search or seizure is ‘‘unlawful’’ if it was 

conducted, instigated, or participated in 

by: 

(1) Military personnel or their agents 

and was in violation of the Constitution 

of the United States as applied to 

members of the armed forces, a federal 

statute applicable to trials by courtmartial that requires exclusion of 

evidence obtained in violation thereof, 

or Mil. R. Evid. 312–317; 

(2) Other officials or agents of the 

United States, of the District of 

Columbia, or of a State, Commonwealth, 

or possession of the United States or any 

political subdivision of such a State, 

Commonwealth, or possession, and was 

in violation of the Constitution of the 

United States, or is unlawful under the 

principles of law generally applied in 

the trial of criminal cases in the United 

States district courts involving a similar 

search or seizure; or 


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(3) Officials of a foreign government 

or their agents, and the accused was 

subjected to gross and brutal 

maltreatment. A search or seizure is not 

‘‘participated in’’ by a United States 

military or civilian official merely 

because that person is present at a 

search or seizure conducted in a foreign 

nation by officials of a foreign 

government or their agents, or because 

that person acted as an interpreter or 

took steps to mitigate damage to 

property or physical harm during the 

foreign search or seizure. 

(c) Exceptions. 

(1) Impeachment. Evidence that was 

obtained as a result of an unlawful 

search or seizure may be used to 

impeach by contradiction the in-court 

testimony of the accused. 

(2) Inevitable Discovery. Evidence 

that was obtained as a result of an 

unlawful search or seizure may be used 

when the evidence would have been 

obtained even if such unlawful search 

or seizure had not been made. 

(3) Good Faith Execution of a Warrant 

or Search Authorization. Evidence that 

was obtained as a result of an unlawful 

search or seizure may be used if: 

(A) The search or seizure resulted 

from an authorization to search, seize or 

apprehend issued by an individual 

competent to issue the authorization 

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

search warrant or arrest warrant issued 

by competent civilian authority; 

(B) The individual issuing the 

authorization or warrant had a 

substantial basis for determining the 

existence of probable cause; and 

(C) The officials seeking and 

executing the authorization or warrant 

reasonably and with good faith relied on 

the issuance of the authorization or 

warrant. Good faith is to be determined 

using an objective standard. 

(d) Motions to Suppress and 

Objections. 

(1) Disclosure. Prior to arraignment, 

the prosecution must disclose to the 

defense all evidence seized from the 

person or property of the accused, or 

believed to be owned by the accused, or 

evidence derived therefrom, that it 

intends to offer into evidence against 

the accused at trial. 

(2) Time Requirements. 

(A) When evidence has been 

disclosed prior to arraignment under 

subdivision (d)(1), the defense must 

make any motion to suppress or 

objection under this rule prior to 

submission of a plea. In the absence of 

such motion or objection, the defense 

may not raise the issue at a later time 

except as permitted by the military 

judge for good cause shown. Failure to 

so move or object constitutes a waiver 

of the motion or objection. 

(B) If the prosecution intends to offer 

evidence described in subdivision (d)(1) 

that was not disclosed prior to 

arraignment, the prosecution must 

provide timely notice to the military 

judge and to counsel for the accused. 

The defense may enter an objection at 

that time and the military judge may 

make such orders as are required in the 

interest of justice. 

(3) Specificity. The military judge 

may require the defense to specify the 

grounds upon which the defense moves 

to suppress or object to evidence 

described in subdivision (d)(1). If 

defense counsel, despite the exercise of 

due diligence, has been unable to 

interview adequately those persons 

involved in the search or seizure, the 

military judge may enter any order 

required by the interests of justice, 

including authorization for the defense 

to make a general motion to suppress or 

a general objection. 

(4) Challenging Probable Cause. 

(A) Relevant Evidence. If the defense 

challenges evidence seized pursuant to 

a search warrant or search authorization 

on the grounds that the warrant or 

authorization was not based upon 

probable cause, the evidence relevant to 

the motion is limited to evidence 

concerning the information actually 

presented to or otherwise known by the 

authorizing officer, except as provided 

in subdivision (d)(4)(B). 

(B) False Statements. If the defense 

makes a substantial preliminary 

showing that a government agent 

included a false statement knowingly 

and intentionally or with reckless 

disregard for the truth in the 

information presented to the authorizing 

officer, and if the allegedly false 

statement is necessary to the finding of 

probable cause, the defense, upon 

request, is entitled to a hearing. At the 

hearing, the defense has the burden of 

establishing by a preponderance of the 

evidence the allegation of knowing and 

intentional falsity or reckless disregard 

for the truth. If the defense meets its 

burden, the prosecution has the burden 

of proving by a preponderance of the 

evidence, with the false information set 

aside, that the remaining information 

presented to the authorizing officer is 

sufficient to establish probable cause. If 

the prosecution does not meet its 

burden, the objection or motion must be 

granted unless the search is otherwise 

lawful under these rules. 

(5) Burden and Standard of Proof. 

(A) In general. When the defense 

makes an appropriate motion or 

objection under this subdivision (d), the 

prosecution has the burden of proving 

by a preponderance of the evidence that 

the evidence was not obtained as a 

result of an unlawful search or seizure, 

that the evidence would have been 

obtained even if the unlawful search or 

seizure had not been made, or that the 

evidence was obtained by officials who 

reasonably and with good faith relied on 

the issuance of an authorization to 

search, seize, or apprehend or a search 

warrant or an arrest warrant. 

(B) Statement Following 

Apprehension. In addition to 

subdivision (d)(5)(A), a statement 

obtained from a person apprehended in 

a dwelling in violation R.C.M. 302(d)(2) 

and (e), is admissible if the prosecution 

shows by a preponderance of the 

evidence that the apprehension was 

based on probable cause, the statement 

was made at a location outside the 

dwelling subsequent to the 

apprehension, and the statement was 

otherwise in compliance with these 

rules. 

(C) Specific Grounds of Motion or 

Objection. When the military judge has 

required the defense to make a specific 

motion or objection under subdivision 

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

extends only to the grounds upon which 

the defense moved to suppress or 

objected to the evidence. 

(6) Defense Evidence. The defense 

may present evidence relevant to the 

admissibility of evidence as to which 

there has been an appropriate motion or 

objection under this rule. An accused 

may testify for the limited purpose of 

contesting the legality of the search or 

seizure giving rise to the challenged 

evidence. Prior to the introduction of 

such testimony by the accused, the 

defense must inform the military judge 

that the testimony is offered under this 

subdivision. When the accused testifies 

under this subdivision, the accused may 

be cross-examined only as to the matter 

on which he or she testifies. Nothing 

said by the accused on either direct or 

cross-examination may be used against 

the accused for any purpose other than 

in a prosecution for perjury, false 

swearing, or the making of a false 

official statement. 

(7) Rulings. The military judge must 

rule, prior to plea, upon any motion to 

suppress or objection to evidence made 

prior to plea unless, for good cause, the 

military judge orders that the ruling be 

deferred for determination at trial or 

after findings. The military judge may 

not defer ruling if doing so adversely 

affects a party’s right to appeal the 

ruling. The military judge must state 

essential findings of fact on the record 

when the ruling involves factual issues. 

(8) Informing the Members. If a 

defense motion or objection under this 


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rule is sustained in whole or in part, the 

court-martial members may not be 

informed of that fact except when the 

military judge must instruct the 

members to disregard evidence. 

(e) Effect of Guilty Plea. Except as 

otherwise expressly provided in R.C.M. 

910(a)(2), a plea of guilty to an offense 

that results in a finding of guilty waives 

all issues under the Fourth Amendment 

to the Constitution of the United States 

and Mil. R. Evid. 311–317 with respect 

to the offense whether or not raised 

prior to plea. 

Rule 312. Body Views and Intrusions 

(a) General Rule. Evidence obtained 

from body views and intrusions 

conducted in accordance with this rule 

is admissible at trial when relevant and 

not otherwise inadmissible under these 

rules. 

(b) Visual Examination of the Body. 

(1) Consensual Examination. Evidence 

obtained from a visual examination of 

the unclothed body is admissible if the 

person consented to the inspection in 

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

(2) Involuntary Examination. 

Evidence obtained from an involuntary 

display of the unclothed body, 

including a visual examination of body 

cavities, is admissible only if the 

inspection was conducted in a 

reasonable fashion and authorized 

under the following provisions of the 

Military Rules of Evidence: 

(A) Inspections and inventories under 

Mil. R. Evid. 313; 

(B) Searches under Mil. R. Evid. 

314(b) and 314(c) if there is a reasonable 

suspicion that weapons, contraband, or 

evidence of crime is concealed on the 

body of the person to be searched; 

(C) Searches incident to lawful 

apprehension under Mil. R. Evid. 

314(g); 

(D) Searches within jails and similar 

facilities under Mil. R. Evid. 314(h) if 

reasonably necessary to maintain the 

security of the institution or its 

personnel; 

(E) Emergency searches under Mil. R. 

Evid. 314(i); and 

(F) Probable cause searches under 

Mil. R. Evid. 315. 

(c) Intrusion into Body Cavities. 

(1) Mouth, Nose, and Ears. Evidence 

obtained from a reasonable 

nonconsensual physical intrusion into 

the mouth, nose, and ears is admissible 

under the same standards that apply to 

a visual examination of the body under 

subdivision (b). 

(2) Other Body Cavities. Evidence 

obtained from nonconsensual intrusions 

into other body cavities is admissible 

only if made in a reasonable fashion by 

a person with appropriate medical 

qualifications and if: 

(A) At the time of the intrusion there 

was probable cause to believe that a 

weapon, contraband, or other evidence 

of crime was present; 

(B) Conducted to remove weapons, 

contraband, or evidence of crime 

discovered under subdivisions (b) or 

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

(C) Conducted pursuant to Mil. R. 

Evid. 316(c)(5)(C); 

(D) Conducted pursuant to a search 

warrant or search authorization under 

Mil. R. Evid. 315; or 

(E) Conducted pursuant to Mil. R. 

Evid. 314(h) based on a reasonable 

suspicion that the individual is 

concealing a weapon, contraband, or 

evidence of crime. 

(d) Extraction of Body Fluids. 

Evidence obtained from nonconsensual 

extraction of body fluids is admissible if 

seized pursuant to a search warrant or 

a search authorization under Mil. R. 

Evid. 315. Evidence obtained from body 

fluid extractions made without such a 

warrant or authorization is admissible, 

not withstanding Mil. R. Evid. 315(g), 

only when probable cause existed at the 

time of extraction to believe that 

evidence of crime would be found and 

that the delay necessary to obtain a 

search warrant or search authorization 

could have resulted in the destruction of 

the evidence. Evidence obtained from 

involuntary extraction of body fluids is 

admissible only when executed in a 

reasonable fashion by a person with 

appropriate medical qualifications. 

(e) Other Intrusive Searches. Evidence 

obtained from a nonconsensual 

intrusive search of the body, other than 

searches described in subdivisions (c) or 

(d), conducted to locate or obtain 

weapons, contraband, or evidence of 

crime is admissible only if obtained 

pursuant to a search warrant or search 

authorization under Mil. R. Evid. 315 

and conducted in a reasonable fashion 

by a person with appropriate medical 

qualifications in such a manner so as 

not to endanger the health of the person 

to be searched. 

(f) Intrusions for Valid Medical 

Purposes. Evidence or contraband 

obtained in the course of a medical 

examination or an intrusion conducted 

for a valid medical purpose is 

admissible. Such an examination or 

intrusion may not, for the purpose of 

obtaining evidence or contraband, 

exceed what is necessary for the 

medical purpose. 

(g) Medical Qualifications. The 

Secretary concerned may prescribe 

appropriate medical qualifications for 

persons who conduct searches and 

seizures under this rule. 

Rule 313. Inspections and Inventories 

in the Armed Forces 

(a) General Rule. Evidence obtained 

from lawful inspections and inventories 

in the armed forces is admissible at trial 

when relevant and not otherwise 

inadmissible under these rules. 

Unlawful weapons, contraband, or other 

evidence of crime discovered during a 

lawful inspection or inventory may be 

seized and are admissible in accordance 

with this rule. 

(b) Lawful Inspections. An 

‘‘inspection’’ is an examination of the 

whole or part of a unit, organization, 

installation, vessel, aircraft, or vehicle, 

including an examination conducted at 

entrance and exit points, conducted as 

an incident of command the primary 

purpose of which is to determine and to 

ensure the security, military fitness, or 

good order and discipline of the unit, 

organization, installation, vessel, 

aircraft, or vehicle. Inspections must be 

conducted in a reasonable fashion and, 

if applicable, must comply with Mil. R. 

Evid. 312. Inspections may utilize any 

reasonable natural or technological aid 

and may be conducted with or without 

notice to those inspected. 

(1) Purpose of Inspections. An 

inspection may include, but is not 

limited to, an examination to determine 

and to ensure that any or all of the 

following requirements are met: that the 

command is properly equipped, 

functioning properly, maintaining 

proper standards of readiness, sea or 

airworthiness, sanitation and 

cleanliness; and that personnel are 

present, fit, and ready for duty. An order 

to produce body fluids, such as urine, 

is permissible in accordance with this 

rule. 

(2) Searches for Evidence. An 

examination made for the primary 

purpose of obtaining evidence for use in 

a trial by court-martial or in other 

disciplinary proceedings is not an 

inspection within the meaning of this 

rule. 

(3) Examinations to Locate and 

Confiscate Weapons or Contraband. 

(A) An inspection may include an 

examination to locate and confiscate 

unlawful weapons and other contraband 

provided that the criteria set forth in 

this subdivision (b)(3)(B) are not 

implicated. 

(B) The prosecution must prove by 

clear and convincing evidence that the 

examination was an inspection within 

the meaning of this rule if a purpose of 

an examination is to locate weapons or 

contraband, and if: 

(i) The examination was directed 

immediately following a report of a 

specific offense in the unit, 


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organization, installation, vessel, 

aircraft, or vehicle and was not 

previously scheduled; 

(ii) Specific individuals are selected 

for examination; or 

(iii) Persons examined are subjected 

to substantially different intrusions 

during the same examination. 

(c) Lawful Inventories. An 

‘‘inventory’’ is a reasonable 

examination, accounting, or other 

control measure used to account for or 

control property, assets, or other 

resources. It is administrative and not 

prosecutorial in nature; and if 

applicable, the inventory must comply 

with Mil. R. Evid. 312. An examination 

made for the primary purpose of 

obtaining evidence for use in a trial by 

court-martial or in other disciplinary 

proceedings is not an inventory within 

the meaning of this rule. 

Rule 314. Searches Not Requiring 

Probable Cause 

(a) General Rule. Evidence obtained 

from reasonable searches not requiring 

probable cause is admissible at trial 

when relevant and not otherwise 

inadmissible under these rules or the 

Constitution of the United States as 

applied to members of the armed forces. 

(b) Border Searches. Evidence from a 

border search for customs or 

immigration purposes authorized by a 

federal statute is admissible. 

(c) Searches Upon Entry to or Exit 

from United States Installations, 

Aircraft, and Vessels Abroad. In 

addition to inspections under Mil. R. 

Evid. 313(b), evidence is admissible 

when a commander of a United States 

military installation, enclave, or aircraft 

on foreign soil, or in foreign or 

international airspace, or a United 

States vessel in foreign or international 

waters, has authorized appropriate 

personnel to search persons or the 

property of such persons upon entry to 

or exit from the installation, enclave, 

aircraft, or vessel to ensure the security, 

military fitness, or good order and 

discipline of the command. A search 

made for the primary purpose of 

obtaining evidence for use in a trial by 

court-martial or other disciplinary 

proceeding is not authorized by this 

subdivision (c). 

(d) Searches of Government Property. 

Evidence resulting from a search of 

government property without probable 

cause is admissible under this rule 

unless the person to whom the property 

is issued or assigned has a reasonable 

expectation of privacy therein at the 

time of the search. Normally a person 

does not have a reasonable expectation 

of privacy in government property that 

is not issued for personal use. Wall or 

floor lockers in living quarters issued for 

the purpose of storing personal 

possessions normally are issued for 

personal use, but the determination as 

to whether a person has a reasonable 

expectation of privacy in government 

property issued for personal use 

depends on the facts and circumstances 

at the time of the search. 

(e) Consent Searches. 

(1) General Rule. Evidence of a search 

conducted without probable cause is 

admissible if conducted with lawful 

consent. 

(2) Who May Consent. A person may 

consent to a search of his or her person 

or property, or both, unless control over 

such property has been given to another. 

A person may grant consent to search 

property when the person exercises 

control over that property. 

(3) Scope of Consent. Consent may be 

limited in any way by the person 

granting consent, including limitations 

in terms of time, place, or property and 

may be withdrawn at any time. 

(4) Voluntariness. To be valid, 

consent must be given voluntarily. 

Voluntariness is a question to be 

determined from all the circumstances. 

Although a person’s knowledge of the 

right to refuse to give consent is a factor 

to be considered in determining 

voluntariness, the prosecution is not 

required to demonstrate such 

knowledge as a prerequisite to 

establishing a voluntary consent. Mere 

submission to the color of authority of 

personnel performing law enforcement 

duties or acquiescence in an announced 

or indicated purpose to search is not a 

voluntary consent. 

(5) Burden and Standard of Proof. The 

prosecution must prove consent by clear 

and convincing evidence. The fact that 

a person was in custody while granting 

consent is a factor to be considered in 

determining the voluntariness of 

consent, but it does not affect the 

standard of proof. 

(f) Searches Incident to a Lawful Stop. 

(1) Lawfulness. A stop is lawful when 

conducted by a person authorized to 

apprehend under R.C.M. 302(b) or 

others performing law enforcement 

duties and when the person making the 

stop has information or observes 

unusual conduct that leads him or her 

reasonably to conclude in light of his or 

her experience that criminal activity 

may be afoot. The stop must be 

temporary and investigatory in nature. 

(2) Stop and Frisk. Evidence is 

admissible if seized from a person who 

was lawfully stopped and who was 

frisked for weapons because he or she 

was reasonably believed to be armed 

and presently dangerous. Contraband or 

evidence that is located in the process 

of a lawful frisk may be seized. 

(3) Vehicles. Evidence is admissible if 

seized from the passenger compartment 

of a vehicle in which a person lawfully 

stopped is the driver or a passenger and 

if the official who made the stop has a 

reasonable belief that the person 

stopped is dangerous and may gain 

immediate control of a weapon. 

(g) Searches Incident to 

Apprehension. 

(1) General Rule. Evidence is 

admissible if seized in a search of a 

person who has been lawfully 

apprehended or if seized as a result of 

a reasonable protective sweep. 

(2) Search for Weapons and 

Destructible Evidence. A lawful search 

incident to apprehension may include a 

search for weapons or destructible 

evidence in the area within the 

immediate control of a person who has 

been apprehended. ‘‘Immediate control’’ 

means that area in which the individual 

searching could reasonably believe that 

the person apprehended could reach 

with a sudden movement to obtain such 

property. 

(3) Protective Sweep for Other 

Persons. 

(A) Area of Potential Immediate 

Attack. Apprehending officials may, 

incident to apprehension, as a 

precautionary matter and without 

probable cause or reasonable suspicion, 

look in closets and other spaces 

immediately adjoining the place of 

apprehension from which an attack 

could be immediately launched. 

(B) Wider Protective Sweep. When an 

apprehension takes place at a location 

in which another person might be 

present who might endanger the 

apprehending officials or others in the 

area of the apprehension, a search 

incident to arrest may lawfully include 

a reasonable examination of those 

spaces where a person might be found. 

Such a reasonable examination is lawful 

under this subdivision if the 

apprehending official has a reasonable 

suspicion based on specific and 

articulable facts that the area to be 

examined harbors an individual posing 

a danger to those in the area of the 

apprehension. 

(h) Searches within Jails, Confinement 

Facilities, or Similar Facilities. Evidence 

obtained from a search within a jail, 

confinement facility, or similar facility 

is admissible even if conducted without 

probable cause provided that it was 

authorized by persons with authority 

over the institution. 

(i) Emergency Searches to Save Life or 

for Related Purposes. Evidence obtained 

from emergency searches of persons or 

property conducted to save life, or for a 


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related purpose, is admissible provided 

that the search was conducted in a good 

faith effort to render immediate medical 

aid, to obtain information that will 

assist in the rendering of such aid, or to 

prevent immediate or ongoing personal 

injury. 

(j) Searches of Open Fields or 

Woodlands. Evidence obtained from a 

search of an open field or woodland is 

admissible provided that the search was 

not unlawful within the meaning of Mil. 

R. Evid. 311. 

Rule 315. Probable Cause Searches 

(a) General Rule. Evidence obtained 

from reasonable searches conducted 

pursuant to a search warrant or search 

authorization, or under the exigent 

circumstances described in this rule, is 

admissible at trial when relevant and 

not otherwise inadmissible under these 

rules or the Constitution of the United 

States as applied to members of the 

armed forces. 

(b) Definitions. As used in these rules: 

(1) ‘‘Search authorization’’ means 

express permission, written or oral, 

issued by competent military authority 

to search a person or an area for 

specified property or evidence or for a 

specific person and to seize such 

property, evidence, or person. It may 

contain an order directing subordinate 

personnel to conduct a search in a 

specified manner. 

(2) ‘‘Search warrant’’ means express 

permission to search and seize issued by 

competent civilian authority. 

(c) Scope of Search Authorization. A 

search authorization may be valid under 

this rule for a search of: 

(1) The physical person of anyone 

subject to military law or the law of war 

wherever found; 

(2) Military property of the United 

States or of nonappropriated fund 

activities of an armed force of the 

United States wherever located; 

(3) Persons or property situated on or 

in a military installation, encampment, 

vessel, aircraft, vehicle, or any other 

location under military control, 

wherever located; or 

(4) Nonmilitary property within a 

foreign country. 

(d) Who May Authorize. A search 

authorization under this rule is valid 

only if issued by an impartial individual 

in this subdivision (d)(1) and (d)(2). An 

otherwise impartial authorizing official 

does not lose the character merely 

because he or she is present at the scene 

of a search or is otherwise readily 

available to persons who may seek the 

issuance of a search authorization; nor 

does such an official lose impartial 

character merely because the official 

previously and impartially authorized 

investigative activities when such 

previous authorization is similar in 

intent or function to a pretrial 

authorization made by the United States 

district courts. 

(1) Commander. A commander or 

other person serving in a position 

designated by the Secretary concerned 

as either a position analogous to an 

officer in charge or a position of 

command, who has control over the 

place where the property or person to be 

searched is situated or found, or, if that 

place is not under military control, 

having control over persons subject to 

military law or the law of war; or 

(2) Military Judge or Magistrate. A 

military judge or magistrate if 

authorized under regulations prescribed 

by the Secretary of Defense or the 

Secretary concerned. 

(e) Who May Search. 

(1) Search Authorization. Any 

commissioned officer, warrant officer, 

petty officer, noncommissioned officer, 

and, when in the execution of guard or 

police duties, any criminal investigator, 

member of the Air Force security forces, 

military police, or shore patrol, or 

person designated by proper authority 

to perform guard or police duties, or any 

agent of any such person, may conduct 

or authorize a search when a search 

authorization has been granted under 

this rule or a search would otherwise be 

proper under subdivision (g). 

(2) Search Warrants. Any civilian or 

military criminal investigator 

authorized to request search warrants 

pursuant to applicable law or regulation 

is authorized to serve and execute 

search warrants. The execution of a 

search warrant affects admissibility only 

insofar as exclusion of evidence is 

required by the Constitution of the 

United States or an applicable federal 

statute. 

(f) Basis for Search Authorizations. 

(1) Probable Cause Requirement. A 

search authorization issued under this 

rule must be based upon probable cause. 

(2) Probable Cause Determination. 

Probable cause to search exists when 

there is a reasonable belief that the 

person, property, or evidence sought is 

located in the place or on the person to 

be searched. A search authorization may 

be based upon hearsay evidence in 

whole or in part. A determination of 

probable cause under this rule will be 

based upon any or all of the following: 

(A) Written statements communicated 

to the authorizing officer; 

(B) Oral statements communicated to 

the authorizing official in person, via 

telephone, or by other appropriate 

means of communication; or 

(C) Such information as may be 

known by the authorizing official that 

would not preclude the officer from 

acting in an impartial fashion. The 

Secretary of Defense or the Secretary 

concerned may prescribe additional 

requirements. 

(g) Exigencies. Evidence obtained 

from a probable cause search is 

admissible without a search warrant or 

search authorization when there is a 

reasonable belief that the delay 

necessary to obtain a search warrant or 

search authorization would result in the 

removal, destruction, or concealment of 

the property or evidence sought. 

Military operational necessity may 

create an exigency by prohibiting or 

preventing communication with a 

person empowered to grant a search 

authorization. 

Rule 316. Seizures 

(a) General Rule. Evidence obtained 

from reasonable seizures is admissible 

at trial when the evidence when 

relevant and not otherwise inadmissible 

under these rules or the Constitution of 

the United States as applied to members 

of the armed forces. 

(b) Apprehension. Apprehension is 

governed by R.C.M. 302. 

(c) Seizure of Property or Evidence. 

(1) Based on Probable Cause. 

Evidence is admissible when seized 

based on a reasonable belief that the 

property or evidence is an unlawful 

weapon, contraband, evidence of crime, 

or might be used to resist apprehension 

or to escape. 

(2) Abandoned Property. Abandoned 

property may be seized without 

probable cause and without a search 

warrant or search authorization. Such 

seizure may be made by any person. 

(3) Consent. Property or evidence may 

be seized with consent consistent with 

the requirements applicable to 

consensual searches under Mil. R. Evid. 

314. 

(4) Government Property. Government 

property may be seized without 

probable cause and without a search 

warrant or search authorization by any 

person listed in subdivision (e), unless 

the person to whom the property is 

issued or assigned has a reasonable 

expectation of privacy therein, as 

provided in Mil. R. Evid. 314(d), at the 

time of the seizure. 

(5) Other Property. Property or 

evidence not included in paragraph (1)– 

(4) may be seized for use in evidence by 

any person listed in subdivision (e) 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. 


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Evid. 315(g) a search warrant or search 

authorization is not required; or 

(C) Plain View. The person while in 

the course of otherwise lawful activity 

observes in a reasonable fashion 

property or evidence that the person has 

probable cause to seize. 

(6) Temporary Detention. Nothing in 

this rule prohibits temporary detention 

of property on less than probable cause 

when authorized under the Constitution 

of the United States. 

(d) Who May Seize. Any 

commissioned officer, warrant officer, 

petty officer, noncommissioned officer, 

and, when in the execution of guard or 

police duties, any criminal investigator, 

member of the Air Force security forces, 

military police, or shore patrol, or 

individual designated by proper 

authority to perform guard or police 

duties, or any agent of any such person, 

may seize property pursuant to this rule. 

(e) Evidence obtained from a seizure 

not addressed in this rule is admissible 

provided that its seizure was 

permissible under the Constitution of 

the United States as applied to members 

of the armed forces. 

Rule 317. Interception of Wire and Oral 

Communications 

(a) General Rule. Wire or oral 

communications constitute evidence 

obtained as a result of an unlawful 

search or seizure within the meaning of 

Mil. R. Evid. 311 when such evidence 

must be excluded under the Fourth 

Amendment to the Constitution of the 

United States as applied to members of 

the armed forces or if such evidence 

must be excluded under a federal statute 

applicable to members of the armed 

forces. 

(b) When Authorized by Court Order. 

Evidence from the interception of wire 

or oral communications is admissible 

when authorized pursuant to an 

application to a federal judge of 

competent jurisdiction under the 

provisions of a federal statute. 

(c) Regulations. Notwithstanding any 

other provision of these rules, evidence 

obtained by members of the armed 

forces or their agents through 

interception of wire or oral 

communications for law enforcement 

purposes is not admissible unless such 

interception: 

(1) Takes place in the United States 

and is authorized under subdivision (b); 

(2) takes place outside the United 

States and is authorized under 

regulations issued by the Secretary of 

Defense or the Secretary concerned; or 

(3) is authorized under regulations 

issued by the Secretary of Defense or the 

Secretary concerned and is not unlawful 

under applicable federal statutes. 

Rule 321. Eyewitness Identification 

(a) General Rule. Testimony 

concerning a relevant out of court 

identification by any person is 

admissible, subject to an appropriate 

objection under this rule, if such 

testimony is otherwise admissible under 

these rules. The witness making the 

identification and any person who has 

observed the previous identification 

may testify concerning it. When in 

testimony a witness identifies the 

accused as being, or not being, a 

participant in an offense or makes any 

other relevant identification concerning 

a person in the courtroom, evidence that 

on a previous occasion the witness 

made a similar identification is 

admissible to corroborate the witness’s 

testimony as to identity even if the 

credibility of the witness has not been 

attacked directly, subject to appropriate 

objection under this rule. 

(b) When Inadmissible. An 

identification of the accused as being a 

participant in an offense, whether such 

identification is made at the trial or 

otherwise, is inadmissible against the 

accused if: 

(1) The identification is the result of 

an unlawful lineup or other unlawful 

identification process, as defined in 

subdivision (c), conducted by the 

United States or other domestic 

authorities and the accused makes a 

timely motion to suppress or an 

objection to the evidence under this 

rule; or 

(2) Exclusion of the evidence is 

required by the due process clause of 

the Fifth Amendment to the 

Constitution of the United States as 

applied to members of the armed forces. 

Evidence other than an identification of 

the accused that is obtained as a result 

of the unlawful lineup or unlawful 

identification process is inadmissible 

against the accused if the accused makes 

a timely motion to suppress or an 

objection to the evidence under this rule 

and if exclusion of the evidence is 

required under the Constitution of the 

United States as applied to members of 

the armed forces. 

(c) Unlawful Lineup or Identification 

Process. 

(1) Unreliable. A lineup or other 

identification process is unreliable, and 

therefore unlawful, if the lineup or other 

identification process is so suggestive as 

to create a substantial likelihood of 

misidentification. 

(2) In Violation of Right to Counsel. A 

lineup is unlawful if it is conducted in 

violation of the accused’s rights to 

counsel. 

(A) Military Lineups. An accused or 

suspect is entitled to counsel if, after 

preferral of charges or imposition of 

pretrial restraint under R.C.M. 304 for 

the offense under investigation, the 

accused is required by persons subject 

to the code or their agents to participate 

in a lineup for the purpose of 

identification. When a person entitled to 

counsel under this rule requests 

counsel, a judge advocate or a person 

certified in accordance with Article 

27(b) will be provided by the United 

States at no expense to the accused or 

suspect and without regard to indigency 

or lack thereof before the lineup may 

proceed. The accused or suspect may 

waive the rights provided in this rule if 

the waiver is freely, knowingly, and 

intelligently made. 

(B) Nonmilitary Lineups. When a 

person subject to the code is required to 

participate in a lineup for purposes of 

identification by an official or agent of 

the United States, of the District of 

Columbia, or of a State, Commonwealth, 

or possession of the United States, or 

any political subdivision of such a State, 

Commonwealth, or possession, and the 

provisions of subdivision (2)(A) do not 

apply, the person’s entitlement to 

counsel and the validity of any waiver 

of applicable rights will be determined 

by the principles of law generally 

recognized in the trial of criminal cases 

in the United States district courts 

involving similar lineups. 

(d) Motions to Suppress and 

Objections. 

(1) Disclosure. Prior to arraignment, 

the prosecution must disclose to the 

defense all evidence of, or derived from, 

a prior identification of the accused as 

a lineup or other identification process 

that it intends to offer into evidence 

against the accused at trial. 

(2) Time Requirement. When such 

evidence has been disclosed, any 

motion to suppress or objection under 

this rule must be made by the defense 

prior to submission of a plea. In the 

absence of such motion or objection, the 

defense may not raise the issue at a later 

time except as permitted by the military 

judge for good cause shown. Failure to 

so move constitutes a waiver of the 

motion or objection. 

(3) Continuing Duty. If the 

prosecution intends to offer such 

evidence and the evidence was not 

disclosed prior to arraignment, the 

prosecution must provide timely notice 

to the military judge and counsel for the 

accused. The defense may enter an 

objection at that time and the military 

judge may make such orders as are 

required in the interests of justice. 

(4) Specificity. The military judge 

may require the defense to specify the 

grounds upon which the defense moves 

to suppress or object to evidence. If 


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defense counsel, despite the exercise of 

due diligence, has been unable to 

interview adequately those persons 

involved in the lineup or other 

identification process, the military judge 

may enter any order required by the 

interests of justice, including 

authorization for the defense to make a 

general motion to suppress or a general 

objection. 

(5) Defense Evidence. The defense 

may present evidence relevant to the 

issue of the admissibility of evidence as 

to which there has been an appropriate 

motion or objection under this rule. An 

accused may testify for the limited 

purpose of contesting the legality of the 

lineup or identification process giving 

rise to the challenged evidence. Prior to 

the introduction of such testimony by 

the accused, the defense must inform 

the military judge that the testimony is 

offered under this subdivision. When 

the accused testifies under this 

subdivision, the accused may be crossexamined only as to the matter on 

which he or she testifies. Nothing said 

by the accused on either direct or crossexamination may be used against the 

accused for any purpose other than in 

a prosecution for perjury, false 

swearing, or the making of a false 

official statement. 

(6) Burden and Standard of Proof. 

When the defense has raised a specific 

motion or objection under subdivision 

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

extends only to the grounds upon which 

the defense moved to suppress or object 

to the evidence. 

(A) Right to Counsel. 

(i) Initial Violation of Right to Counsel 

at a Lineup. When the accused raises 

the right to presence of counsel under 

this rule, the prosecution must prove by 

a preponderance of the evidence that 

counsel was present at the lineup or that 

the accused, having been advised of the 

right to the presence of counsel, 

voluntarily and intelligently waived that 

right prior to the lineup. 

(ii) Identification Subsequent to a 

Lineup Conducted in Violation of the 

Right to Counsel. When the military 

judge determines that an identification 

is the result of a lineup conducted 

without the presence of counsel or an 

appropriate waiver, any later 

identification by one present at such 

unlawful lineup is also a result thereof 

unless the military judge determines 

that the contrary has been shown by 

clear and convincing evidence. 

(B) Unreliable Identification. 

(i) Initial Unreliable Identification. 

When an objection raises the issue of an 

unreliable identification, the 

prosecution must prove by a 

preponderance of the evidence that the 

identification was reliable under the 

circumstances. 

(ii) Identification Subsequent to an 

Unreliable Identification. When the 

military judge determines that an 

identification is the result of an 

unreliable identification, a later 

identification may be admitted if the 

prosecution proves by clear and 

convincing evidence that the later 

identification is not the result of the 

inadmissible identification. 

(7) Rulings. A motion to suppress or 

an objection to evidence made prior to 

plea under this rule will be ruled upon 

prior to plea unless the military judge, 

for good cause, orders that it be deferred 

for determination at the trial of the 

general issue or until after findings, but 

no such determination will be deferred 

if a party’s right to appeal the ruling is 

affected adversely. Where factual issues 

are involved in ruling upon such motion 

or objection, the military judge will state 

his or her essential findings of fact on 

the record. 

(e) Effect of Guilty Pleas. Except as 

otherwise expressly provided in R.C.M. 

910(a)(2), a plea of guilty to an offense 

that results in a finding of guilty waives 

all issues under this rule with respect to 

that offense whether or not raised prior 

to the plea. 

Rule 401. Test for Relevant Evidence 

Evidence is relevant if: 

(a) It has any tendency to make a fact 

more or less probable than it would be 

without the evidence; and 

(b) The fact is of consequence in 

determining the action. 

Rule 402. General Admissibility of 

Relevant Evidence 

(a) Relevant evidence is admissible 

unless any of the following provides 

otherwise: 

(1) The United States Constitution as 

it applies to members of the armed 

forces; 

(2) A federal statute; 

(3) These rules; 

(4) This Manual; or 

(5) Other rules prescribed by the 

Supreme Court pursuant to statutory 

authority. 

(b) Irrelevant evidence is not 

admissible. 

Rule 403. Excluding Relevant Evidence 

for Prejudice, Confusion, Waste of 

Time, or Other Reasons 

The military judge may exclude 

relevant evidence if its probative value 

is substantially outweighed by a danger 

of one or more of the following: Unfair 

prejudice, confusing the issues, 

misleading the members, undue delay, 

wasting time, or needlessly presenting 

cumulative evidence. 

Rule 404. Character Evidence; Crimes 

or Other Acts 

(a) Character Evidence. 

(1) Prohibited Uses. Evidence of a 

person’s character or character trait is 

not admissible to prove that on a 

particular occasion the person acted in 

accordance with the character or trait. 

(2) Exceptions for an Accused or 

Alleged Victim: 

(A) The accused may offer evidence of 

the accused’s pertinent trait, and if the 

evidence is admitted, the prosecution 

may offer evidence to rebut it. 

(B) Subject to the limitations in Mil. 

R. Evid. 412, the accused may offer 

evidence of an alleged victim’s pertinent 

trait, and if the evidence is admitted, the 

prosecution may: 

(i) Offer evidence to rebut it; and 

(ii) Offer evidence of the accused’s 

same trait; and 

(C) In a homicide or assault case, the 

prosecution may offer evidence of the 

alleged victim’s trait of peacefulness to 

rebut evidence that the alleged victim 

was the first aggressor. 

(3) Exceptions for a Witness. Evidence 

of a witness’s character may be admitted 

under Mil. R. Evid. 607, 608, and 609. 

(b) Crimes, Wrongs, or Other Acts. 

(1) Prohibited Uses. Evidence of a 

crime, wrong, or other act is not 

admissible to prove a person’s character 

in order to show that on a particular 

occasion the person acted in accordance 

with the character. 

(2) Permitted Uses; Notice. This 

evidence may be admissible for another 

purpose, such as proving motive, 

opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, 

or lack of accident. On request by the 

accused, the prosecution must: 

(A) Provide reasonable notice of the 

general nature of any such evidence that 

the prosecution intends to offer at trial; 

and 

(B) Do so before trial—or during trial 

if the military judge, for good cause, 

excuses lack of pretrial notice. 

Rule 405. Methods of Proving Character 

(a) By Reputation or Opinion. When 

evidence of a person’s character or 

character trait is admissible, it may be 

proved by testimony about the person’s 

reputation or by testimony in the form 

of an opinion. On cross-examination of 

the character witness, the military judge 

may allow an inquiry into relevant 

specific instances of the person’s 

conduct. 

(b) By Specific Instances of Conduct. 

When a person’s character or character 

trait is an essential element of a charge, 

claim, or defense, the character or trait 

may also be proved by relevant specific 

instances of the person’s conduct. 


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(c) By Affidavit. The defense may 

introduce affidavits or other written 

statements of persons other than the 

accused concerning the character of the 

accused. If the defense introduces 

affidavits or other written statements 

under this subdivision, the prosecution 

may, in rebuttal, also introduce 

affidavits or other written statements 

regarding the character of the accused. 

Evidence of this type may be introduced 

by the defense or prosecution only if, 

aside from being contained in an 

affidavit or other written statement, it 

would otherwise be admissible under 

these rules. 

(d) Definitions. As used in this rule: 

(1) ‘‘Reputation’’ means the 

estimation in which a person generally 

is held in the community in which the 

person lives or pursues a business or 

profession. 

(2) ‘‘Community’’ means a post, camp, 

ship, station, or other military 

organization regardless of size. 

Rule 406. Habit; Routine Practice 

Evidence of a person’s habit or an 

organization’s routine practice may be 

admitted to prove that on a particular 

occasion the person or organization 

acted in accordance with the habit or 

routine practice. The military judge may 

admit this evidence regardless of 

whether it is corroborated or whether 

there was an eyewitness. 

Rule 407. Subsequent Remedial 

Measures 

(a) When measures are taken that 

would have made an earlier injury or 

harm less likely to occur, evidence of 

the subsequent measures is not 

admissible to prove: 

(1) Negligence; 

(2) Culpable conduct; 

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

or 

(4) A need for a warning or 

instruction. 

(b) The military judge may admit this 

evidence for another purpose, such as 

impeachment or—if disputed—proving 

ownership, control, or the feasibility of 

precautionary measures. 

Rule 408. Compromise Offers and 

Negotiations 

(a) Prohibited Uses. Evidence of the 

following is not admissible—on behalf 

of any party—either to prove or 

disprove the validity or amount of a 

disputed claim or to impeach by a prior 

inconsistent statement or a 

contradiction: 

(1) Furnishing, promising, or 

offering—or accepting, promising to 

accept, or offering to accept—a valuable 

consideration in order to compromise 

the claim; and 

(2) Conduct or a statement made 

during compromise negotiations about 

the claim—except when the 

negotiations related to a claim by a 

public office in the exercise of its 

regulatory, investigative, or enforcement 

authority. 

(b) Exceptions. The military judge 

may admit this evidence for another 

purpose, such as proving witness bias or 

prejudice, negating a contention of 

undue delay, or proving an effort to 

obstruct a criminal investigation or 

prosecution. 

Rule 409. Offers To Pay Medical and 

Similar Expenses 

Evidence of furnishing, promising to 

pay, or offering to pay medical, hospital, 

or similar expenses resulting from an 

injury is not admissible to prove 

liability for the injury. 

Rule 410. Pleas, Plea Discussions, and 

Related Statements 

(a) Prohibited Uses. Evidence of the 

following is not admissible against the 

accused who made the plea or 

participated in the plea discussions: 

(1) A guilty plea that was later 

withdrawn; 

(2) A nolo contendere plea; 

(3) Any statement made in the course 

of any judicial inquiry regarding either 

of the foregoing pleas; or 

(4) Any statement made during plea 

discussions with the convening 

authority, staff judge advocate, trial 

counsel or other counsel for the 

Government if the discussions did not 

result in a guilty plea or they resulted 

in a later-withdrawn guilty plea. 

(b) Exceptions. The military judge 

may admit a statement described in 

subdivision (a)(3) or (a)(4): 

(1) When another statement made 

during the same plea or plea discussions 

has been introduced, if in fairness the 

statements ought to be considered 

together; or 

(2) In a proceeding for perjury or false 

statement, if the accused made the 

statement under oath, on the record, and 

with counsel present. 

(c) Request for Administrative 

Disposition. A ‘‘statement made during 

plea discussions’’ includes a statement 

made by the accused solely for the 

purpose of requesting disposition under 

an authorized procedure for 

administrative action in lieu of trial by 

court-martial; ‘‘on the record’’ includes 

the written statement submitted by the 

accused in furtherance of such request. 

Rule 411. Liability Insurance 

Evidence that a person was or was not 

insured against liability is not 

admissible to prove whether the person 

acted negligently or otherwise 

wrongfully. The military judge may 

admit this evidence for another purpose, 

such as proving witness bias or 

prejudice or proving agency, ownership, 

or control. 

Rule 412. Sex Offense Cases: The 

Alleged Victim’s Sexual Behavior or 

Predisposition 

(a) Prohibited Uses. The following 

evidence is not admissible in any 

proceeding involving an alleged sexual 

offense: 

(1) Evidence offered to prove that an 

alleged victim engaged in other sexual 

behavior; or 

(2) Evidence offered to prove an 

alleged victim’s sexual predisposition. 

(b) Exceptions. The military judge 

may admit the following evidence: 

(1) Evidence of specific instances of 

an alleged victim’s sexual behavior, if 

offered to prove that a person other than 

the accused was the source of semen, 

injury, or other physical evidence; 

(2) Evidence of specific instances of 

an alleged victim’s sexual behavior with 

respect to the accused, if offered by the 

accused to prove consent or if offered by 

the prosecution; and 

(3) Evidence the exclusion of which 

would violate the accused’s 

constitutional rights. 

(c) Procedure to Determine 

Admissibility. 

(1) Motion. If a party intends to offer 

evidence under Rule 412(b), the party 

must: 

(A) File a motion that specifically 

describes the evidence and states the 

purpose for which it is to be offered; 

(B) Do so at least 5 days prior to entry 

of pleas unless the military judge, for 

good cause, sets a different time; 

(C) Serve the motion on all parties; 

and 

(D) Notify the alleged victim or, when 

appropriate, the alleged victim’s 

guardian or representative. 

(2) Hearing. Before admitting 

evidence under this rule, the military 

judge must conduct a hearing pursuant 

to Article 39(a) which must be closed to 

the public and outside the presence of 

the members. At this hearing, the parties 

may call witnesses, including the 

alleged victim, and offer relevant 

evidence. The alleged victim must be 

afforded a reasonable opportunity to 

attend and be heard. Unless the military 

judge orders otherwise, the motion, 

related materials, and the record of the 

hearing must be and remain sealed in 

accordance with R.C.M. 1103A. 

(3) Privacy. If the military judge 

determines that evidence the accused 

seeks to offer is relevant for a purpose 

under subdivision (b), the military judge 


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must issue an order specifically 

identifying the evidence that may be 

offered and the areas about which the 

alleged victim may be examined or 

cross-examined. Such evidence remains 

subject to challenge under Mil. R. Evid. 

403. 

(e) Definitions. As used in this rule: 

(1) ‘‘Sexual behavior’’ means any 

sexual behavior not encompassed by the 

alleged offense. 

(2) ‘‘Sexual offense’’ means any sexual 

misconduct punishable under the 

Uniform Code of Military Justice, 

federal law or state law. 

(3) ‘‘Sexual predisposition’’ means an 

alleged victim’s mode of dress, speech, 

or lifestyle, that may have a sexual 

connotation for the factfinder, but that 

does not directly relate to sexual 

activities or thoughts. 

Rule 413. Similar Crimes in Sexual 

Offense Cases 

(a) Permitted Uses. In a court-martial 

proceeding for a sexual offense, the 

military judge may admit evidence that 

the accused committed any other sexual 

offense. The evidence may be 

considered on any matter to which it is 

relevant. 

(b) Disclosure to the Accused. If the 

prosecution intends to offer this 

evidence, the prosecution must disclose 

it to the accused, including any 

witnesses’ statements or a summary of 

the expected testimony. The 

prosecution must do so at least 5 days 

prior to entry of pleas or at a later time 

that the military judge allows for good 

cause. 

(c) Effect on Other Rules. This rule 

does not limit the admission or 

consideration of evidence under any 

other rule. 

(d) Definition. As used in this rule, 

‘‘Sexual Offense’’ means an offense 

punishable under the Uniform Code of 

Military Justice, or a crime under federal 

or state law (as ‘‘state’’ is defined in 18 

U.S.C. § 513), involving: 

(1) Any conduct prohibited by Article 

120; 

(2) Any conduct prohibited by 18 

U.S.C. chapter 109A; 

(3) Contact, without consent, between 

any part of the accused’s body—or an 

object—and another person’s genitals or 

anus; 

(4) Contact, without consent, between 

the accused’s genitals or anus and any 

part of another person’s body; 

(5) Deriving sexual pleasure or 

gratification from inflicting death, 

bodily injury, or physical pain on 

another person; or 

(6) An attempt or conspiracy to 

engage in conduct described in 

subdivisions (1)–(5). 

Rule 414. Similar Crimes in ChildMolestation Cases 

(a) Permitted Uses. In a court-martial 

proceeding in which an accused is 

charged with an act of child 

molestation, the military judge may 

admit evidence that the accused 

committed any other offense of child 

molestation. The evidence may be 

considered on any matter to which it is 

relevant. 

(b) Disclosure to the Accused. If the 

prosecution intends to offer this 

evidence, the prosecution must disclose 

it to the accused, including witnesses’ 

statements or a summary of the 

expected testimony. The prosecution 

must do so at least 5 days prior to entry 

of pleas or at a later time that the 

military judge allows for good cause. 

(c) Effect on Other Rules. This rule 

does not limit the admission or 

consideration of evidence under any 

other rule. 

(d) Definitions. As used in this rule: 

(1) ‘‘Child’’ means a person below the 

age of 16; and 

(2) ‘‘Child molestation’’ means an 

offense punishable under the Uniform 

Code of Military Justice, or a crime 

under federal law or under state law (as 

‘‘state’’ is defined in 18 U.S.C. 513), that 

involves: 

(A) Any conduct prohibited by Article 

120 and committed with a child; 

(B) Any conduct prohibited by 18 

U.S.C. chapter 109A and committed 

with a child; 

(C) Any conduct prohibited by 18 

U.S.C. chapter 110; 

(D) Contact between any part of the 

accused’s body—or an object—and a 

child’s genitals or anus; 

(E) Contact between the accused’s 

genitals or anus and any part of a child’s 

body; 

(F) Deriving sexual pleasure or 

gratification from inflicting death, 

bodily injury, or physical pain on a 

child; or 

(G) An attempt or conspiracy to 

engage in conduct described in 

subdivisions (A)–(F). 

Rule 501. Privilege in General 

(a) A person may not claim a privilege 

with respect to any matter except as 

required by or provided for in: 

(1) The United States Constitution as 

applied to members of the armed forces; 

(2) A federal statute applicable to 

trials by courts-martial; 

(3) These rules or this Manual; 

(4) Rules prescribed by the Supreme 

Court pursuant to statutory authority; or 

(5) The principles of common law 

generally recognized in the trial of 

criminal cases in the United States 

district courts under rule 501 of the 

Federal Rules of Evidence, insofar as the 

application of such principles in trials 

by courts-martial is practicable and not 

contrary to or inconsistent with the 

Uniform Code of Military Justice, these 

rules, or this Manual. 

(b) A claim of privilege includes, but 

is not limited to, the assertion by any 

person of a privilege to: 

(1) Refuse to be a witness; 

(2) Refuse to disclose any matter; 

(3) Refuse to produce any object or 

writing; or 

(4) Prevent another from being a 

witness or disclosing any matter or 

producing any object or writing. 

(c) The term ‘‘person’’ includes an 

appropriate representative of the 

Federal Government, a State, or political 

subdivision thereof, or any other entity 

claiming to be the holder of a privilege. 

(d) Notwithstanding any other 

provision of these rules, information not 

otherwise privileged does not become 

privileged on the basis that it was 

acquired by a medical officer or civilian 

physician in a professional capacity. 

Rule 502. Lawyer-Client Privilege 

(a) General Rule. A client has a 

privilege to refuse to disclose and to 

prevent any other person from 

disclosing confidential communications 

made for the purpose of facilitating the 

rendition of professional legal services 

to the client: 

(1) Between the client or the client’s 

representative and the lawyer or the 

lawyer’s representative; 

(2) Between the lawyer and the 

lawyer’s representative; 

(3) By the client or the client’s lawyer 

to a lawyer representing another in a 

matter of common interest; 

(4) Between representatives of the 

client or between the client and a 

representative of the client; or 

(5) Between lawyers representing the 

client. 

(b) Definitions. As used in this rule: 

(1) ‘‘Client’’ means a person, public 

officer, corporation, association, 

organization, or other entity, either 

public or private, who receives 

professional legal services from a 

lawyer, or who consults a lawyer with 

a view to obtaining professional legal 

services from the lawyer. 

(2) ‘‘Lawyer’’ means a person 

authorized, or reasonably believed by 

the client to be authorized, to practice 

law; or a member of the armed forces 

detailed, assigned, or otherwise 

provided to represent a person in a 

court-martial case or in any military 

investigation or proceeding. The term 

‘‘lawyer’’ does not include a member of 

the armed forces serving in a capacity 


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other than as a judge advocate, legal 

officer, or law specialist as defined in 

Article 1, unless the member: 

(A) Is detailed, assigned, or otherwise 

provided to represent a person in a 

court-martial case or in any military 

investigation or proceeding; 

(B) Is authorized by the armed forces, 

or reasonably believed by the client to 

be authorized, to render professional 

legal services to members of the armed 

forces; or 

(C) Is authorized to practice law and 

renders professional legal services 

during off-duty employment. 

(3) ‘‘Lawyer’s representative’’ means a 

person employed by or assigned to 

assist a lawyer in providing professional 

legal services. 

(4) A communication is 

‘‘confidential’’ if not intended to be 

disclosed to third persons other than 

those to whom disclosure is in 

furtherance of the rendition of 

professional legal services to the client 

or those reasonably necessary for the 

transmission of the communication. 

(c) Who May Claim the Privilege. The 

privilege may be claimed by the client, 

the guardian or conservator of the client, 

the personal representative of a 

deceased client, or the successor, 

trustee, or similar representative of a 

corporation, association, or other 

organization, whether or not in 

existence. The lawyer or the lawyer’s 

representative who received the 

communication may claim the privilege 

on behalf of the client. The authority of 

the lawyer to do so is presumed in the 

absence of evidence to the contrary. 

(d) Exceptions. There is no privilege 

under this rule under any of the 

following circumstances: 

(1) Crime or Fraud. If the 

communication clearly contemplated 

the future commission of a fraud or 

crime or if services of the lawyer were 

sought or obtained to enable or aid 

anyone to commit or plan to commit 

what the client knew or reasonably 

should have known to be a crime or 

fraud. 

(2) Claimants through Same Deceased 

Client. As to a communication relevant 

to an issue between parties who claim 

through the same deceased client, 

regardless of whether the claims are by 

testate or intestate succession or by inter 

vivos transaction. 

(3) Breach of Duty by Lawyer or 

Client. As to a communication relevant 

to an issue of breach of duty by the 

lawyer to the client or by the client to 

the lawyer; 

(4) Document Attested by the Lawyer. 

As to a communication relevant to an 

issue concerning an attested document 

to which the lawyer is an attesting 

witness; or 

(5) Joint Clients. As to a 

communication relevant to a matter of 

common interest between two or more 

clients if the communication was made 

by any of them to a lawyer retained or 

consulted in common, when offered in 

an action between any of the clients. 

Rule 503. Communications to Clergy 

(a) General Rule. A person has a 

privilege to refuse to disclose and to 

prevent another from disclosing a 

confidential communication by the 

person to a clergyman or to a 

clergyman’s assistant, if such 

communication is made either as a 

formal act of religion or as a matter of 

conscience. 

(b) Definitions. As used in this rule: 

(1) ‘‘Clergyman’’ means a minister, 

priest, rabbi, chaplain, or other similar 

functionary of a religious organization, 

or an individual reasonably believed to 

be so by the person consulting the 

clergyman. 

(2) ‘‘Clergyman’s assistant’’ means a 

person employed by or assigned to 

assist a clergyman in his capacity as a 

spiritual advisor. 

(3) A communication is 

‘‘confidential’’ if made to a clergyman in 

the clergyman’s capacity as a spiritual 

adviser or to a clergyman’s assistant in 

the assistant’s official capacity and is 

not intended to be disclosed to third 

persons other than those to whom 

disclosure is in furtherance of the 

purpose of the communication or to 

those reasonably necessary for the 

transmission of the communication.’’ 

(c) Who May Claim the Privilege. The 

privilege may be claimed by the person, 

by the guardian, or conservator, or by a 

personal representative if the person is 

deceased. The clergyman or clergyman’s 

assistant who received the 

communication may claim the privilege 

on behalf of the person. The authority 

of the clergyman or clergyman’s 

assistant to do so is presumed in the 

absence of evidence to the contrary. 

Rule 504. Husband-Wife Privilege 

(a) Spousal Incapacity. A person has 

a privilege to refuse to testify against his 

or her spouse. 

(b) Confidential Communication 

Made During the Marriage. 

(1) General Rule. A person has a 

privilege during and after the marital 

relationship to refuse to disclose, and to 

prevent another from disclosing, any 

confidential communication made to 

the spouse of the person while they 

were husband and wife and not 

separated as provided by law. 

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

communication is ‘‘confidential’’ if 

made privately by any person to the 

spouse of the person and is not intended 

to be disclosed to third persons other 

than those reasonably necessary for 

transmission of the communication. 

(3) Who May Claim the Privilege. The 

privilege may be claimed by the spouse 

who made the communication or by the 

other spouse on his or her behalf. The 

authority of the latter spouse to do so is 

presumed in the absence of evidence of 

a waiver. The privilege will not prevent 

disclosure of the communication at the 

request of the spouse to whom the 

communication was made if that spouse 

is an accused regardless of whether the 

spouse who made the communication 

objects to its disclosure.’’ 

(c) Exceptions. 

(1) To Spousal Incapacity Only. There 

is no privilege under subdivision (a) 

when, at the time the testimony of one 

of the parties to the marriage is to be 

introduced in evidence against the other 

party, the parties are divorced or the 

marriage has been annulled. 

(2) To Spousal Incapacity and 

Confidential Communications. There is 

no privilege under subdivisions (a) or 

(b): 

(A) In proceedings in which one 

spouse is charged with a crime against 

the person or property of the other 

spouse or a child of either, or with a 

crime against the person or property of 

a third person committed in the course 

of committing a crime against the other 

spouse; 

(B) When the marital relationship was 

entered into with no intention of the 

parties to live together as spouses, but 

only for the purpose of using the 

purported marital relationship as a 

sham, and with respect to the privilege 

in subdivision (a), the relationship 

remains a sham at the time the 

testimony or statement of one of the 

parties is to be introduced against the 

other; or with respect to the privilege in 

subdivision (b), the relationship was a 

sham at the time of the communication; 

or 

(C) In proceedings in which a spouse 

is charged, in accordance with Article 

133 or 134, with importing the other 

spouse as an alien for prostitution or 

other immoral purpose in violation of 

18 U.S.C. § 1328; with transporting the 

other spouse in interstate commerce for 

immoral purposes or other offense in 

violation of 18 U.S.C. 2421–2424; or 

with violation of such other similar 

statutes under which such privilege may 

not be claimed in the trial of criminal 

cases in the United States district 

courts. 


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(D) Where both parties have been 

substantial participants in illegal 

activity, those communications between 

the spouses during the marriage 

regarding the illegal activity in which 

they have jointly participated are not 

marital communications for purposes of 

the privilege in subdivision (b), and are 

not entitled to protection under the 

privilege in subdivision (b). 

(d) Definitions. As used in this rule: 

(1) ‘‘A child of either’’ means a 

biological child, adopted child, or ward 

of one of the spouses and includes a 

child who is under the permanent or 

temporary physical custody of one of 

the spouses, regardless of the existence 

of a legal parent-child relationship. For 

purposes of this rule only, a child is: 

(A) An individual under the age of 18; 

or 

(B) An individual with a mental 

handicap who functions under the age 

of 18. 

(2) ‘‘Temporary physical custody’’ 

means a parent has entrusted his or her 

child with another. There is no 

minimum amount of time necessary to 

establish temporary physical custody, 

nor is a written agreement required. 

Rather, the focus is on the parent’s 

agreement with another for assuming 

parental responsibility for the child. For 

example, temporary physical custody 

may include instances where a parent 

entrusts another with the care of their 

child for recurring care or during 

absences due to temporary duty or 

deployments. 

Rule 505. Classified Information 

(a) General Rule. Classified 

information must be protected and is 

privileged from disclosure if disclosure 

would be detrimental to the national 

security. Under no circumstances may a 

military judge order the release of 

classified information to any person not 

authorized to receive such information. 

The Secretary of Defense may prescribe 

security procedures for protection 

against the compromise of classified 

information submitted to courts-martial 

and appellate authorities. 

(b) Definitions. As used in this rule: 

(1) ‘‘Classified information’’ means 

any information or material that has 

been determined by the United States 

Government pursuant to an executive 

order, statute, or regulations, to require 

protection against unauthorized 

disclosure for reasons of national 

security, and any restricted data, as 

defined in 42 U.S.C. 2014(y). 

(2) ‘‘National security’’ means the 

national defense and foreign relations of 

the United States. 

(3) ‘‘In camera hearing’’ means a 

session under Article 39(a) from which 

the public is excluded. 

(4) ‘‘In camera review’’ means an 

inspection of documents or other 

evidence conducted by the military 

judge alone in chambers and not on the 

record. 

(5) ‘‘Ex parte’’ means a discussion 

between the military judge and either 

the defense counsel or prosecution, 

without the other party or the public 

present. This discussion can be on or off 

the record, depending on the 

circumstances. The military judge will 

grant a request for an ex parte 

discussion or hearing only after finding 

that such discussion or hearing is 

necessary to protect classified 

information or other good cause. Prior to 

granting a request from one party for an 

ex parte discussion or hearing, the 

military judge must provide notice to 

the opposing party on the record. If the 

ex parte discussion is conducted off the 

record, the military judge should later 

state on the record that such ex parte 

discussion took place and generally 

summarize the subject matter of the 

discussion, as appropriate. 

(c) Access to Evidence. Any 

information admitted into evidence 

pursuant to any rule, procedure, or 

order by the military judge must be 

provided to the accused. 

(d) Declassification. Trial counsel 

should, when practicable, seek 

declassification of evidence that may be 

used at trial, consistent with the 

requirements of national security. A 

decision not to declassify evidence 

under this section is not subject to 

review by a military judge or upon 

appeal. 

(e) Action Prior to Referral of Charges. 

(1) Prior to referral of charges, upon 

a showing by the accused that the 

classified information sought is relevant 

and necessary to an element of the 

offense or a legally cognizable defense, 

the convening authority must respond 

in writing to a request by the accused 

for classified information if the privilege 

in this rule is claimed for such 

information. In response to such a 

request, the convening authority may: 

(A) Delete specified items of classified 

information from documents made 

available to the accused; 

(B) Substitute a portion or summary of 

the information for such classified 

documents; 

(C) Substitute a statement admitting 

relevant facts that the classified 

information would tend to prove; 

(D) Provide the document subject to 

conditions that will guard against the 

compromise of the information 

disclosed to the accused; or 

(E) Withhold disclosure if actions 

under (1) through (4) cannot be taken 

without causing identifiable damage to 

the national security. 

(2) An Article 32 investigating officer 

may not rule on any objection by the 

accused to the release of documents or 

information protected by this rule. 

(3) Any objection by the accused to 

withholding of information or to the 

conditions of disclosure must be raised 

through a motion for appropriate relief 

at a pretrial conference. 

(f) Actions after Referral of Charges. 

(1) Pretrial Conference. At any time 

after referral of charges, any party may 

move for a pretrial conference under 

Article 39(a) to consider matters relating 

to classified information that may arise 

in connection with the trial. Following 

such a motion, or when the military 

judge recognizes the need for such 

conference, the military judge must 

promptly hold a pretrial conference 

under Article 39(a). 

(2) Ex Parte Permissible. Upon request 

by either party and with a showing of 

good cause, the military judge must 

hold such conference ex parte to the 

extent necessary to protect classified 

information from disclosure. 

(3) Matters to be Established at 

Pretrial Conference. 

(A) Timing of Subsequent Actions. At 

the pretrial conference, the military 

judge must establish the timing of: 

(i) Requests for discovery; 

(ii) The provision of notice required 

by subdivision (i) of this rule; and 

(iii) The initiation of the procedure 

established by subdivision (j) of this 

rule. 

(B) Other Matters. At the pretrial 

conference, the military judge may also 

consider any matter which relates to 

classified information or which may 

promote a fair and expeditious trial. 

(4) Convening Authority Notice and 

Action. If a claim of privilege has been 

made under this rule with respect to 

classified information that apparently 

contains evidence that is relevant and 

necessary to an element of the offense 

or a legally cognizable defense and is 

otherwise admissible in evidence in the 

court-martial proceeding, the matter 

will be reported to the convening 

authority. The convening authority may: 

(A) Institute action to obtain the 

classified information for the use by the 

military judge in making a 

determination under subdivision (j); 

(B) Dismiss the charges; 

(C) Dismiss the charges or 

specifications or both to which the 

information relates; or 

(D) Take such other action as may be 

required in the interests of justice. 

(5) Remedies. If, after a reasonable 

period of time, the information is not 


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provided to the military judge in 

circumstances where proceeding with 

the case without such information 

would materially prejudice a substantial 

right of the accused, the military judge 

must dismiss the charges or 

specifications or both to which the 

classified information relates. 

(g) Protective Orders. Upon motion of 

the trial counsel, the military judge 

must issue an order to protect against 

the disclosure of any classified 

information that has been disclosed by 

the United States to any accused in any 

court-martial proceeding or that has 

otherwise been provided to, or obtained 

by, any such accused in any such courtmartial proceeding. The terms of any 

such protective order may include, but 

are not limited to, provisions: 

(1) Prohibiting the disclosure of the 

information except as authorized by the 

military judge; 

(2) Requiring storage of material in a 

manner appropriate for the level of 

classification assigned to the documents 

to be disclosed; 

(3) Requiring controlled access to the 

material during normal business hours 

and at other times upon reasonable 

notice; 

(4) Mandating that all persons 

requiring security clearances will 

cooperate with investigatory personnel 

in any investigations which are 

necessary to obtain a security clearance; 

(5) Requiring the maintenance of logs 

regarding access by all persons 

authorized by the military judge to have 

access to the classified information in 

connection with the preparation of the 

defense; 

(6) Regulating the making and 

handling of notes taken from material 

containing classified information; or 

(7) Requesting the convening 

authority to authorize the assignment of 

government security personnel and the 

provision of government storage 

facilities. 

(h) Discovery and Access by the 

Accused. 

(1) Limitations. 

(A) Government Claim of Privilege. In 

court-martial proceeding in which the 

government seeks to delete, withhold, or 

otherwise obtain other relief with 

respect to the discovery of or access to 

any classified information, the trial 

counsel must submit a declaration 

invoking the United States’ classified 

information privilege and setting forth 

the damage to the national security that 

the discovery of or access to such 

information reasonably could be 

expected to cause. The declaration must 

be signed by the head, or designee, of 

the executive or military department or 

government agency concerned. 

(B) Standard for Discovery or Access 

by the Accused. Upon the submission of 

a declaration under subdivision 

(h)(1)(A), the military judge may not 

authorize the discovery of or access to 

such classified information unless the 

military judge determines that such 

classified information would be 

noncumulative and relevant to a legally 

cognizable defense, rebuttal of the 

prosecution’s case, or to sentencing. If 

the discovery of or access to such 

classified information is authorized, it 

must be addressed in accordance with 

the requirements of subdivision (h)(2). 

(2) Alternatives to Full Discovery. 

(A) Substitutions and Other 

Alternatives. The military judge, in 

assessing the accused’s right to discover 

or access classified information under 

this subdivision, may authorize the 

Government: 

(i) To delete or withhold specified 

items of classified information; 

(ii) To substitute a summary for 

classified information; or 

(iii) To substitute a statement 

admitting relevant facts that the 

classified information or material would 

tend to prove, unless the military judge 

determines that disclosure of the 

classified information itself is necessary 

to enable the accused to prepare for 

trial. 

(B) In Camera Review. The military 

judge must, upon the request of the 

prosecution, conduct an in camera 

review of the prosecution’s motion and 

any materials submitted in support 

thereof and must not disclose such 

information to the accused. 

(C) Action by Military Judge. The 

military judge must grant the request of 

the trial counsel to substitute a 

summary or to substitute a statement 

admitting relevant facts, or to provide 

other relief in accordance with 

subdivision (h)(2)(A), if the military 

judge finds that the summary, 

statement, or other relief would provide 

the accused with substantially the same 

ability to make a defense as would 

discovery of or access to the specific 

classified information. 

(3) Reconsideration. An order of a 

military judge authorizing a request of 

the trial counsel to substitute, 

summarize, withhold, or prevent access 

to classified information under this 

subdivision (h) is not subject to a 

motion for reconsideration by the 

accused, if such order was entered 

pursuant to an ex parte showing under 

this subdivision. 

(i) Disclosure by the Accused. 

(1) Notification to Trial Counsel and 

Military Judge. If an accused reasonably 

expects to disclose, or to cause the 

disclosure of, classified information in 

any manner in connection with any trial 

or pretrial proceeding involving the 

prosecution of such accused, the 

accused must, within the time specified 

by the military judge or, where no time 

is specified, prior to arraignment of the 

accused, notify the trial counsel and the 

military judge in writing. 

(2) Content of Notice. Such notice 

must include a brief description of the 

classified information. 

(3) Ex Parte Proffer. At the request of 

the defense counsel, the military judge 

may allow defense counsel to make an 

ex parte proffer of the classified 

information to the military judge so that 

the military judge can determine the 

relevance of the information for use by 

the accused. 

(4) Continuing Duty to Notify. 

Whenever the accused learns of 

additional classified information the 

accused reasonably expects to disclose, 

or to cause the disclosure of, at any such 

proceeding, the accused must notify 

trial counsel and the military judge in 

writing as soon as possible thereafter 

and must include a brief description of 

the classified information. 

(5) Limitation on Disclosure by 

Accused. The accused may not disclose, 

or cause the disclosure of, any 

information known or believed to be 

classified in connection with a trial or 

pretrial proceeding until: 

(A) Notice has been given under this 

subdivision (i); and 

(B) The Government has been 

afforded a reasonable opportunity to 

seek a determination pursuant to the 

procedure set forth in subdivision (j). 

(6) Failure To comply. If the accused 

fails to comply with the requirements of 

this subdivision, the military judge: 

(A) May preclude disclosure of any 

classified information not made the 

subject of notification; and 

(B) may prohibit the examination by 

the accused of any witness with respect 

to any such information. 

(j) Procedure for Use of Classified 

Information in Trials and Pretrial 

Proceedings. 

(1) Hearing on Use of Classified 

Information. 

(A) Motion for Hearing. Within the 

time specified by the military judge for 

the filing of a motion under this rule, 

either party may move for a hearing 

concerning the use at any proceeding of 

any classified information. Upon a 

request by either party, the military 

judge must conduct such a hearing and 

must rule prior to conducting any 

further proceedings. 

(B) Request for In Camera Hearing. 

Any hearing held pursuant to this 

subdivision (or any portion of such 

hearing specified in the request of a 


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knowledgeable United States official) 

must be held in camera if a 

knowledgeable United States official 

possessing authority to classify 

information submits to the military 

judge a declaration that a public 

proceeding may result in the disclosure 

of classified information. 

(C) Notice to Accused. Before the 

hearing, trial counsel must provide the 

accused with notice of the classified 

information that is at issue. Such notice 

must identify the specific classified 

information at issue whenever that 

information previously has been made 

available to the accused by the United 

States. When the United States has not 

previously made the information 

available to the accused in connection 

with the case the information may be 

described by generic category, in such 

forms as the military judge may 

approve, rather than by identification of 

the specific information of concern to 

the United States. 

(D) Standard for Disclosure. Classified 

information is not subject to disclosure 

under this subdivision unless the 

information is relevant and necessary to 

an element of the offense or a legally 

cognizable defense and is otherwise 

admissible in evidence. In 

presentencing proceedings, relevant and 

material classified information 

pertaining to the appropriateness of, or 

the appropriate degree of, punishment 

must be admitted only if no unclassified 

version of such information is available. 

(E) Written Findings. As to each item 

of classified information, the military 

judge must set forth in writing the basis 

for the determination. 

(2) Alternatives to Full Disclosure. 

(A) Motion by the Prosecution. Upon 

any determination by the military judge 

authorizing the disclosure of specific 

classified information under the 

procedures established by this 

subdivision (j), the trial counsel may 

move that, in lieu of the disclosure of 

such specific classified information, the 

military judge order: 

(i) The substitution for such classified 

information of a statement admitting 

relevant facts that the specific classified 

information would tend to prove; 

(ii) The substitution for such 

classified information of a summary of 

the specific classified information; or 

(iii) Any other procedure or redaction 

limiting the disclosure of specific 

classified information. 

(B) Declaration of Damage to National 

Security. The trial counsel may, in 

connection with a motion under this 

subdivision (j), submit to the military 

judge a declaration signed by the head, 

or designee, of the executive or military 

department or government agency 

concerned certifying that disclosure of 

classified information would cause 

identifiable damage to the national 

security of the United States and 

explaining the basis for the 

classification of such information. If so 

requested by the trial counsel, the 

military judge must examine such 

declaration during an in camera review. 

(C) Hearing. The military judge must 

hold a hearing on any motion under this 

subdivision. Any such hearing must be 

held in camera at the request of a 

knowledgeable United States official 

possessing authority to classify 

information. 

(D) Standard for Use of Alternatives. 

The military judge must grant such a 

motion of the trial counsel if the 

military judge finds that the statement, 

summary, or other procedure or 

redaction will provide the accused with 

substantially the same ability to make 

his or her defense as would disclosure 

of the specific classified information. 

(3) Sealing of Records of In Camera 

Hearings. If at the close of an in camera 

hearing under this subdivision (or any 

portion of a hearing under this 

subdivision that is held in camera), the 

military judge determines that the 

classified information at issue may not 

be disclosed or elicited at the trial or 

pretrial proceeding, the record of such 

in camera hearing must be sealed in 

accordance with R.C.M. 1103A and 

preserved for use in the event of an 

appeal. The accused may seek 

reconsideration of the military judge’s 

determination prior to or during trial. 

(4) Remedies. If the military judge 

determines that alternatives to full 

disclosure may not be used and the 

prosecution continues to object to 

disclosure of the information, the 

military judge must issue any order that 

the interests of justice require, including 

but not limited to, an order: 

(A) Striking or precluding all or part 

of the testimony of a witness; 

(B) Declaring a mistrial; 

(C) Finding against the Government 

on any issue as to which the evidence 

is relevant and material to the defense; 

(D) Dismissing the charges, with or 

without prejudice; or 

(E) Dismissing the charges or 

specifications or both to which the 

information relates. 

The Government may avoid the 

sanction for nondisclosure by 

permitting the accused to disclose the 

information at the pertinent courtmartial proceeding. 

(5) Disclosure of Rebuttal Information. 

Whenever the military judge determines 

that classified information may be 

disclosed in connection with a trial or 

pretrial proceeding, the military judge 

must, unless the interests of fairness do 

not so require, order the prosecution to 

provide the accused with the 

information it expects to use to rebut the 

classified information. 

(A) Continuing Duty. The military 

judge may place the prosecution under 

a continuing duty to disclose such 

rebuttal information. 

(B) Sanction for Failure to Comply. If 

the prosecution fails to comply with its 

obligation under this subdivision, the 

military judge: 

(i) May exclude any evidence not 

made the subject of a required 

disclosure; and 

(ii) May prohibit the examination by 

the prosecution of any witness with 

respect to such information. 

(6) Disclosure at Trial of Previous 

Statements by a Witness. 

(A) Motion for Production of 

Statements in Possession of the 

Prosecution. After a witness called by 

the trial counsel has testified on direct 

examination, the military judge, on 

motion of the accused, may order 

production of statements of the witness 

in the possession of the Prosecution 

which relate to the subject matter as to 

which the witness has testified. This 

paragraph does not preclude discovery 

or assertion of a privilege otherwise 

authorized. 

(B) Invocation of Privilege by the 

Government. If the Government invokes 

a privilege, the trial counsel may 

provide the prior statements of the 

witness to the military judge for in 

camera review to the extent necessary to 

protect classified information from 

disclosure. 

(C) Action by Military Judge. If the 

military judge finds that disclosure of 

any portion of the statement identified 

by the Government as classified would 

be detrimental to the national security 

in the degree required to warrant 

classification under the applicable 

Executive Order, statute, or regulation, 

that such portion of the statement is 

consistent with the testimony of the 

witness, and that the disclosure of such 

portion is not necessary to afford the 

accused a fair trial, the military judge 

must excise that portion from the 

statement. If the military judge finds 

that such portion of the statement is 

inconsistent with the testimony of the 

witness or that its disclosure is 

necessary to afford the accused a fair 

trial, the military judge must, upon the 

request of the trial counsel, consider 

alternatives to disclosure in accordance 

with this subdivision (j)(2). 

(k) Introduction into Evidence of 

Classified Information. 

(1) Preservation of Classification 

Status. Writings, recordings, and 


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photographs containing classified 

information may be admitted into 

evidence in court-martial proceedings 

under this rule without change in their 

classification status. 

(A) Precautions. The military judge in 

a trial by court-martial, in order to 

prevent unnecessary disclosure of 

classified information, may order 

admission into evidence of only part of 

a writing, recording, or photograph, or 

may order admission into evidence of 

the whole writing, recording, or 

photograph with excision of some or all 

of the classified information contained 

therein, unless the whole ought in 

fairness be considered. 

(B) Classified Information Kept Under 

Seal. The military judge must allow 

classified information offered or 

accepted into evidence to remain under 

seal during the trial, even if such 

evidence is disclosed in the courtmartial proceeding, and may, upon 

motion by the Government, seal exhibits 

containing classified information in 

accordance with R.C.M. 1103A for any 

period after trial as necessary to prevent 

a disclosure of classified information 

when a knowledgeable United States 

official possessing authority to classify 

information submits to the military 

judge a declaration setting forth the 

damage to the national security that the 

disclosure of such information 

reasonably could be expected to cause. 

(2) Testimony. 

(A) Objection by Trial Counsel. 

During the examination of a witness, 

trial counsel may object to any question 

or line of inquiry that may require the 

witness to disclose classified 

information not previously found to be 

admissible. 

(B) Action by Military Judge. 

Following an objection under this 

subdivision (k), the military judge must 

take such suitable action to determine 

whether the response is admissible as 

will safeguard against the compromise 

of any classified information. Such 

action may include requiring trial 

counsel to provide the military judge 

with a proffer of the witness’s response 

to the question or line of inquiry and 

requiring the accused to provide the 

military judge with a proffer of the 

nature of the information sought to be 

elicited by the accused. Upon request, 

the military judge may accept an ex 

parte proffer by trial counsel to the 

extent necessary to protect classified 

information from disclosure. 

(3) Closed session. The military judge 

may, subject to the requirements of the 

United States Constitution, exclude the 

public during that portion of the 

presentation of evidence that discloses 

classified information. 

(l) Record of Trial. If under this rule 

any information is withheld from the 

accused, the accused objects to such 

withholding, and the trial is continued 

to an adjudication of guilt of the 

accused, the entire unaltered text of the 

relevant documents as well as the 

prosecution’s motion and any materials 

submitted in support thereof must be 

sealed in accordance with R.C.M. 1103A 

and attached to the record of trial as an 

appellate exhibit. Such material must be 

made available to reviewing authorities 

in closed proceedings for the purpose of 

reviewing the determination of the 

military judge. The record of trial with 

respect to any classified matter will be 

prepared under R.C.M. 1103(h) and 

1104(b)(1)(D). 

Rule 506. Government Information 

Other Than Classified Information 

(a) Protection of Government 

Information. Except where disclosure is 

required by a federal statute, 

government information is privileged 

from disclosure if disclosure would be 

detrimental to the public interest. 

(b) Scope. ‘‘Government information’’ 

includes official communication and 

documents and other information 

within the custody or control of the 

Federal Government. This rule does not 

apply to classified information (Mil. R. 

Evid. 505) or to the identity of an 

informant (Mil. R. Evid. 507). 

(c) Definitions. As used in this rule: 

(1) ‘‘In camera hearing’’ means a 

session under Article 39(a) from which 

the public is excluded. 

(2) ‘‘In camera review’’ means an 

inspection of documents or other 

evidence conducted by the military 

judge alone in chambers and not on the 

record. 

(3) ‘‘Ex parte’’ means a discussion 

between the military judge and either 

the defense counsel or prosecution, 

without the other party or the public 

present. This discussion can be on or off 

the record, depending on the 

circumstances. The military judge will 

grant a request for an ex parte 

discussion or hearing only after finding 

that such discussion or hearing is 

necessary to protect government 

information or other good cause. Prior to 

granting a request from one party for an 

ex parte discussion or hearing, the 

military judge must provide notice to 

the opposing party on the record. If the 

ex parte discussion is conducted off the 

record, the military judge should later 

state on the record that such ex parte 

discussion took place and generally 

summarize the subject matter of the 

discussion, as appropriate. 

(d) Who May Claim the Privilege. The 

privilege may be claimed by the head, 

or designee, of the executive or military 

department or government agency 

concerned. The privilege for records and 

information of the Inspector General 

may be claimed by the immediate 

superior of the inspector general officer 

responsible for creation of the records or 

information, the Inspector General, or 

any other superior authority. A person 

who may claim the privilege may 

authorize a witness or the trial counsel 

to claim the privilege on his or her 

behalf. The authority of a witness or the 

trial counsel to do so is presumed in the 

absence of evidence to the contrary. 

(e) Action Prior to Referral of Charges. 

(1) Prior to referral of charges, upon 

a showing by the accused that the 

government information sought is 

relevant and necessary to an element of 

the offense or a legally cognizable 

defense, the convening authority must 

respond in writing to a request by the 

accused for government information if 

the privilege in this rule is claimed for 

such information. In response to such a 

request, the convening authority may: 

(A) Delete specified items of 

government information claimed to be 

privileged from documents made 

available to the accused; 

(B) Substitute a portion or summary of 

the information for such documents; 

(C) Substitute a statement admitting 

relevant facts that the government 

information would tend to prove; 

(D) Provide the document subject to 

conditions similar to those set forth in 

subdivision (g) of this rule; or 

(E) Withhold disclosure if actions 

under (1) through (4) cannot be taken 

without causing identifiable damage to 

the public interest. 

(2) Any objection by the accused to 

withholding of information or to the 

conditions of disclosure must be raised 

through a motion for appropriate relief 

at a pretrial conference. 

(f) Action After Referral of Charges. 

(1) Pretrial Conference. At any time 

after referral of charges, any party may 

move for a pretrial conference under 

Article 39(a) to consider matters relating 

to government information that may 

arise in connection with the trial. 

Following such a motion, or when the 

military judge recognizes the need for 

such conference, the military judge 

must promptly hold a pretrial 

conference under Article 39(a). 

(2) Ex Parte Permissible. Upon request 

by either party and with a showing of 

good cause, the military judge must 

hold such conference ex parte to the 

extent necessary to protect government 

information from disclosure. 

(3) Matters to be Established at 

Pretrial Conference. 


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(A) Timing of Subsequent Actions. At 

the pretrial conference, the military 

judge must establish the timing of: 

(i) Requests for discovery; 

(ii) The provision of notice required 

by subdivision (i) of this rule; and 

(iii) The initiation of the procedure 

established by subdivision (j) of this 

rule. 

(B) Other Matters. At the pretrial 

conference, the military judge may also 

consider any matter which relates to 

government information or which may 

promote a fair and expeditious trial. 

(4) Convening Authority Notice and 

Action. If a claim of privilege has been 

made under this rule with respect to 

government information that apparently 

contains evidence that is relevant and 

necessary to an element of the offense 

or a legally cognizable defense and is 

otherwise admissible in evidence in the 

court-martial proceeding, the matter 

must be reported to the convening 

authority. The convening authority may: 

(A) Institute action to obtain the 

information for use by the military judge 

in making a determination under 

subdivision (j); 

(B) Dismiss the charges; 

(C) Dismiss the charges or 

specifications or both to which the 

information relates; or 

(D) Take such other action as may be 

required in the interests of justice. 

(5) Remedies. If after a reasonable 

period of time the information is not 

provided to the military judge in 

circumstances where proceeding with 

the case without such information 

would materially prejudice a substantial 

right of the accused, the military judge 

must dismiss the charges or 

specifications or both to which the 

information relates. 

(g) Protective Orders. Upon motion of 

the trial counsel, the military judge 

must issue an order to protect against 

the disclosure of any government 

information that has been disclosed by 

the United States to any accused in any 

court-martial proceeding or that has 

otherwise been provided to, or obtained 

by, any such accused in any such courtmartial proceeding. The terms of any 

such protective order may include, but 

are not limited to, provisions: 

(1) Prohibiting the disclosure of the 

information except as authorized by the 

military judge; 

(2) Requiring storage of the material in 

a manner appropriate for the nature of 

the material to be disclosed; 

(3) Requiring controlled access to the 

material during normal business hours 

and at other times upon reasonable 

notice; 

(4) Requiring the maintenance of logs 

recording access by persons authorized 

by the military judge to have access to 

the government information in 

connection with the preparation of the 

defense; 

(5) Regulating the making and 

handling of notes taken from material 

containing government information; or 

(6) Requesting the convening 

authority to authorize the assignment of 

government security personnel and the 

provision of government storage 

facilities. 

(h) Discovery and Access by the 

Accused. 

(1) Limitations. 

(A) Government Claim of Privilege. In 

court-martial proceeding in which the 

government seeks to delete, withhold, or 

otherwise obtain other relief with 

respect to the discovery of or access to 

any government information subject to a 

claim of privilege, the trial counsel must 

submit a declaration invoking the 

United States’ government information 

privilege and setting forth the detriment 

to the public interest that the discovery 

of or access to such information 

reasonably could be expected to cause. 

The declaration must be signed by a 

knowledgeable United States official as 

described in subdivision (d) of this rule. 

(B) Standard for Discovery or Access 

by the Accused. Upon the submission of 

a declaration under subdivision 

(h)(1)(A), the military judge may not 

authorize the discovery of or access to 

such government information unless the 

military judge determines that such 

government information would be 

noncumulative, relevant, and helpful to 

a legally cognizable defense, rebuttal of 

the prosecution’s case, or to sentencing. 

If the discovery of or access to such 

government information is authorized, it 

must be addressed in accordance with 

the requirements of subdivision (h)(2). 

(2) Alternatives to Full Disclosure. 

(A) Substitutions and Other 

Alternatives. The military judge, in 

assessing the accused’s right to discover 

or access government information under 

this subdivision, may authorize the 

Government: 

(i) To delete or withhold specified 

items of government information; 

(ii) To substitute a summary for 

government information; or 

(iii) To substitute a statement 

admitting relevant facts that the 

government information or material 

would tend to prove, unless the military 

judge determines that disclosure of the 

government information itself is 

necessary to enable the accused to 

prepare for trial. 

(B) In Camera Review. The military 

judge must, upon the request of the 

prosecution, conduct an in camera 

review of the prosecution’s motion and 

any materials submitted in support 

thereof and must not disclose such 

information to the accused. 

(C) Action by Military Judge. The 

military judge must grant the request of 

the trial counsel to substitute a 

summary or to substitute a statement 

admitting relevant facts, or to provide 

other relief in accordance with 

subdivision (h)(2)(A), if the military 

judge finds that the summary, 

statement, or other relief would provide 

the accused with substantially the same 

ability to make a defense as would 

discovery of or access to the specific 

government information. 

(i) Disclosure by the Accused. 

(1) Notification to Trial Counsel and 

Military Judge. If an accused reasonably 

expects to disclose, or to cause the 

disclosure of, government information 

subject to a claim of privilege in any 

manner in connection with any trial or 

pretrial proceeding involving the 

prosecution of such accused, the 

accused must, within the time specified 

by the military judge or, where no time 

is specified, prior to arraignment of the 

accused, notify the trial counsel and the 

military judge in writing. 

(2) Content of Notice. Such notice 

must include a brief description of the 

government information. 

(3) Ex Parte Review. At the request of 

the defense counsel, the military judge 

may allow defense counsel to make an 

ex parte proffer of the government 

information to the military judge so that 

the military judge can determine the 

relevance of the information for use by 

the accused. 

(4) Continuing Duty to Notify. 

Whenever the accused learns of 

additional government information the 

accused reasonably expects to disclose, 

or to cause the disclosure of, at any such 

proceeding, the accused must notify 

trial counsel and the military judge in 

writing as soon as possible thereafter 

and must include a brief description of 

the government information. 

(5) Limitation on Disclosure by 

Accused. The accused may not disclose, 

or cause the disclosure of, any 

information known or believed to be 

subject to a claim of privilege in 

connection with a trial or pretrial 

proceeding until: 

(A) Notice has been given under this 

subdivision (i); and 

(B) The Government has been 

afforded a reasonable opportunity to 

seek a determination pursuant to the 

procedure set forth in subdivision (j). 

(6) Failure to Comply. If the accused 

fails to comply with the requirements of 

this subdivision, the military judge: 


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(A) May preclude disclosure of any 

government information not made the 

subject of notification; and 

(B) May prohibit the examination by 

the accused of any witness with respect 

to any such information. 

(j) Procedure for Use of Government 

Information Subject to a Claim of 

Privilege in Trials and Pretrial 

Proceedings. 

(1) Hearing on Use of Government 

Information. 

(A) Motion for Hearing. Within the 

time specified by the military judge for 

the filing of a motion under this rule, 

either party may move for an in camera 

hearing concerning the use at any 

proceeding of any government 

information that may be subject to a 

claim of privilege. Upon a request by 

either party, the military judge must 

conduct such a hearing and must rule 

prior to conducting any further 

proceedings. 

(B) Request for In Camera Hearing. 

Any hearing held pursuant to this 

subdivision must be held in camera if a 

knowledgeable United States official 

described in subdivision (d) of this rule 

submits to the military judge a 

declaration that disclosure of the 

information reasonably could be 

expected to cause identifiable damage to 

the public interest. 

(C) Notice to Accused. Subject to 

subdivision (j)(2) below, the prosecution 

must disclose government information 

claimed to be privileged under this rule 

for the limited purpose of litigating, in 

camera, the admissibility of the 

information at trial. The military judge 

must enter an appropriate protective 

order to the accused and all other 

appropriate trial participants concerning 

the disclosure of the information 

according to subdivision (g), above. The 

accused may not disclose any 

information provided under this 

subdivision unless, and until, such 

information has been admitted into 

evidence by the military judge. In the in 

camera hearing, both parties may have 

the opportunity to brief and argue the 

admissibility of the government 

information at trial. 

(D) Standard for Disclosure. 

Government information is subject to 

disclosure at the court-martial 

proceeding under this subdivision if the 

party making the request demonstrates a 

specific need for information containing 

evidence that is relevant to the guilt or 

innocence or to punishment of the 

accused, and is otherwise admissible in 

the court-martial proceeding. 

(E) Written Findings. As to each item 

of government information, the military 

judge must set forth in writing the basis 

for the determination. 

(2) Alternatives to Full Disclosure. 

(A) Motion by the Prosecution. Upon 

any determination by the military judge 

authorizing disclosure of specific 

government information under the 

procedures established by this 

subdivision (j), the prosecution may 

move that, in lieu of the disclosure of 

such information, the military judge 

order: 

(i) The substitution for such 

government information of a statement 

admitting relevant facts that the specific 

government information would tend to 

prove; 

(ii) The substitution for such 

government information of a summary 

of the specific government information; 

or 

(iii) Any other procedure or redaction 

limiting the disclosure of specific 

government information. 

(B) Hearing. The military judge must 

hold a hearing on any motion under this 

subdivision. At the request of the trial 

counsel, the military judge will conduct 

an in camera hearing. 

(C) Standard for Use of Alternatives. 

The military judge must grant such a 

motion of the trial counsel if the 

military judge finds that the statement, 

summary, or other procedure or 

redaction will provide the accused with 

substantially the same ability to make 

his or her defense as would disclosure 

of the specific government information. 

(3) Sealing of Records of In Camera 

Hearings. If at the close of an in camera 

hearing under this subdivision (or any 

portion of a hearing under this 

subdivision that is held in camera), the 

military judge determines that the 

government information at issue may 

not be disclosed or elicited at the trial 

or pretrial proceeding, the record of 

such in camera hearing must be sealed 

in accordance with R.C.M. 1103A and 

preserved for use in the event of an 

appeal. The accused may seek 

reconsideration of the military judge’s 

determination prior to or during trial. 

(4) Remedies. If the military judge 

determines that alternatives to full 

disclosure may not be used and the 

prosecution continues to object to 

disclosure of the information, the 

military judge must issue any order that 

the interests of justice require, including 

but not limited to, an order: 

(A) Striking or precluding all or part 

of the testimony of a witness; 

(B) Declaring a mistrial; 

(C) Finding against the Government 

on any issue as to which the evidence 

is relevant and necessary to the defense; 

(D) Dismissing the charges, with or 

without prejudice; or 

(E) Dismissing the charges or 

specifications or both to which the 

information relates. 

The Government may avoid the sanction 

for nondisclosure by permitting the 

accused to disclose the information at 

the pertinent court-martial proceeding. 

(5) Disclosure of Rebuttal Information. 

Whenever the military judge determines 

that government information may be 

disclosed in connection with a trial or 

pretrial proceeding, the military judge 

must, unless the interests of fairness do 

not so require, order the prosecution to 

provide the accused with the 

information it expects to use to rebut the 

government information. 

(A) Continuing Duty. The military 

judge may place the prosecution under 

a continuing duty to disclose such 

rebuttal information. 

(B) Sanction for Failure to Comply. If 

the prosecution fails to comply with its 

obligation under this subdivision, the 

military judge may make such ruling as 

the interests of justice require, to 

include: 

(i) Excluding any evidence not made 

the subject of a required disclosure; and 

(ii) Prohibiting the examination by the 

prosecution of any witness with respect 

to such information. 

(k) Appeals of Orders and Rulings. In 

a court-martial in which a punitive 

discharge may be adjudged, the 

Government may appeal an order or 

ruling of the military judge that 

terminates the proceedings with respect 

to a charge or specification, directs the 

disclosure of government information, 

or imposes sanctions for nondisclosure 

of government information. The 

Government may also appeal an order or 

ruling in which the military judge 

refuses to issue a protective order 

sought by the United States to prevent 

the disclosure of government 

information, or to enforce such an order 

previously issued by appropriate 

authority. The Government may not 

appeal an order or ruling that is, or 

amounts to, a finding of not guilty with 

respect to the charge or specification. 

(l) Introduction into Evidence of 

Government Information Subject to a 

Claim of Privilege. 

(1) Precautions. The military judge in 

a trial by court-martial, in order to 

prevent unnecessary disclosure of 

government information after there has 

been a claim of privilege under this rule, 

may order admission into evidence of 

only part of a writing, recording, or 

photograph or admit into evidence the 

whole writing, recording, or photograph 

with excision of some or all of the 

government information contained 

therein, unless the whole ought in 

fairness be considered. 


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(2) Government Information Kept 

Under Seal. The military judge must 

allow government information offered 

or accepted into evidence to remain 

under seal during the trial, even if such 

evidence is disclosed in the courtmartial proceeding, and may, upon 

motion by the prosecution, seal exhibits 

containing government information in 

accordance with R.C.M. 1103A for any 

period after trial as necessary to prevent 

a disclosure of government information 

when a knowledgeable United States 

official described in subdivision (d) 

submits to the military judge a 

declaration setting forth the detriment to 

the public interest that the disclosure of 

such information reasonably could be 

expected to cause. 

(3) Testimony. 

(A) Objection by Trial Counsel. 

During examination of a witness, trial 

counsel may object to any question or 

line of inquiry that may require the 

witness to disclose government 

information not previously found 

admissible if such information has been 

or is reasonably likely to be the subject 

of a claim of privilege under this rule. 

(B) Action by Military Judge. 

Following such an objection, the 

military judge must take such suitable 

action to determine whether the 

response is admissible as will safeguard 

against the compromise of any 

government information. Such action 

may include requiring trial counsel to 

provide the military judge with a proffer 

of the witness’s response to the question 

or line of inquiry and requiring the 

accused to provide the military judge 

with a proffer of the nature of the 

information sought to be elicited by the 

accused. Upon request, the military 

judge may accept an ex parte proffer by 

trial counsel to the extent necessary to 

protect government information from 

disclosure. 

(m) Record of Trial. If under this rule 

any information is withheld from the 

accused, the accused objects to such 

withholding, and the trial is continued 

to an adjudication of guilt of the 

accused, the entire unaltered text of the 

relevant documents as well as the 

prosecution’s motion and any materials 

submitted in support thereof must be 

sealed in accordance with R.C.M. 1103A 

and attached to the record of trial as an 

appellate exhibit. Such material must be 

made available to reviewing authorities 

in closed proceedings for the purpose of 

reviewing the determination of the 

military judge. 

Rule 507. Identity of Informants 

(a) General Rule. The United States or 

a State or subdivision thereof has a 

privilege to refuse to disclose the 

identity of an informant. Unless 

otherwise privileged under these rules, 

the communications of an informant are 

not privileged except to the extent 

necessary to prevent the disclosure of 

the informant’s identity. 

(b) Definitions. As used in this rule: 

(1) ‘‘Informant’’ means a person who 

has furnished information relating to or 

assisting in an investigation of a 

possible violation of law to a person 

whose official duties include the 

discovery, investigation, or prosecution 

of crime. 

(2) ‘‘In camera review’’ means an 

inspection of documents or other 

evidence conducted by the military 

judge alone in chambers and not on the 

record. 

(c) Who May Claim the Privilege. The 

privilege may be claimed by an 

appropriate representative of the United 

States, regardless of whether 

information was furnished to an officer 

of the United States or a State or 

subdivision thereof. The privilege may 

be claimed by an appropriate 

representative of a State or subdivision 

if the information was furnished to an 

officer thereof, except the privilege will 

not be allowed if the prosecution 

objects. 

(d) Exceptions. 

(1) Voluntary Disclosures; Informant 

as a Prosecution Witness. No privilege 

exists under this rule: 

(A) If the identity of the informant has 

been disclosed to those who would have 

cause to resent the communication by a 

holder of the privilege or by the 

informant’s own action; or 

(B) If the informant appears as a 

witness for the prosecution. 

(2) Informant as a Defense Witness. If 

a claim of privilege has been made 

under this rule, the military judge must, 

upon motion by the accused, determine 

whether disclosure of the identity of the 

informant is necessary to the accused’s 

defense on the issue of guilt or 

innocence. Whether such a necessity 

exists will depend on the particular 

circumstances of each case, taking into 

consideration the offense charged, the 

possible defense, the possible 

significance of the informant’s 

testimony, and other relevant factors. If 

it appears from the evidence in the case 

or from other showing by a party that an 

informant may be able to give testimony 

necessary to the accused’s defense on 

the issue of guilt or innocence, the 

military judge may make any order 

required by the interests of justice. 

(3) Informant as a Witness regarding 

a Motion to Suppress Evidence. If a 

claim of privilege has been made under 

this rule with respect to a motion under 

Mil. R. Evid. 311, the military judge 

must, upon motion of the accused, 

determine whether disclosure of the 

identity of the informant is required by 

the United States Constitution as 

applied to members of the armed forces. 

In making this determination, the 

military judge may make any order 

required by the interests of justice. 

(e) Procedures. 

(1) In Camera Review. If the accused 

has articulated a basis for disclosure 

under the standards set forth in this 

rule, the prosecution may ask the 

military judge to conduct an in camera 

review of affidavits or other evidence 

relevant to disclosure. 

(2) Order by the Military Judge. If a 

claim of privilege has been made under 

this rule, the military judge may make 

any order required by the interests of 

justice. 

(3) Action by the Convening 

Authority. If the military judge 

determines that disclosure of the 

identity of the informant is required 

under the standards set forth in this 

rule, and the prosecution elects not to 

disclose the identity of the informant, 

the matter must be reported to the 

convening authority. The convening 

authority may institute action to secure 

disclosure of the identity of the 

informant, terminate the proceedings, or 

take such other action as may be 

appropriate under the circumstances. 

(4) Remedies. If, after a reasonable 

period of time disclosure is not made, 

the military judge, sua sponte or upon 

motion of either counsel and after a 

hearing if requested by either party, may 

dismiss the charge or specifications or 

both to which the information regarding 

the informant would relate if the 

military judge determines that further 

proceedings would materially prejudice 

a substantial right of the accused. 

Rule 508. Political Vote 

A person has a privilege to refuse to 

disclose the tenor of the person’s vote at 

a political election conducted by secret 

ballot unless the vote was cast illegally. 

Rule 509. Deliberations of Courts and 

Juries 

Except as provided in Mil. R. Evid. 

606, the deliberations of courts, courtsmartial, military judges, and grand and 

petit juries are privileged to the extent 

that such matters are privileged in trial 

of criminal cases in the United States 

district courts, but the results of the 

deliberations are not privileged. 

Rule 510. Waiver of Privilege by 

Voluntary Disclosure 

(a) A person upon whom these rules 

confer a privilege against disclosure of 

a confidential matter or communication 


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waives the privilege if the person or the 

person’s predecessor while holder of the 

privilege voluntarily discloses or 

consents to disclosure of any significant 

part of the matter or communication 

under such circumstances that it would 

be inappropriate to allow the claim of 

privilege. This rule does not apply if the 

disclosure is itself a privileged 

communication. 

(b) Unless testifying voluntarily 

concerning a privileged matter or 

communication, an accused who 

testifies in his or her own behalf or a 

person who testifies under a grant or 

promise of immunity does not, merely 

by reason of testifying, waive a privilege 

to which he or she may be entitled 

pertaining to the confidential matter or 

communication. 

Rule 511. Privileged Matter Disclosed 

Under Compulsion or Without 

Opportunity To Claim Privilege 

(a) General Rule. Evidence of a 

statement or other disclosure of 

privileged matter is not admissible 

against the holder of the privilege if 

disclosure was compelled erroneously 

or was made without an opportunity for 

the holder of the privilege to claim the 

privilege. 

(b) Use of Communications Media. 

The telephonic transmission of 

information otherwise privileged under 

these rules does not affect its privileged 

character. Use of electronic means of 

communication other than the 

telephone for transmission of 

information otherwise privileged under 

these rules does not affect the privileged 

character of such information if use of 

such means of communication is 

necessary and in furtherance of the 

communication. 

Rule 512. Comment Upon or Inference 

From Claim of Privilege; Instruction 

(a) Comment or Inference Not 

Permitted. 

(1) The claim of a privilege by the 

accused whether in the present 

proceeding or upon a prior occasion is 

not a proper subject of comment by the 

military judge or counsel for any party. 

No inference may be drawn therefrom. 

(2) The claim of a privilege by a 

person other than the accused whether 

in the present proceeding or upon a 

prior occasion normally is not a proper 

subject of comment by the military 

judge or counsel for any party. An 

adverse inference may not be drawn 

therefrom except when determined by 

the military judge to be required by the 

interests of justice. 

(b) Claiming a Privilege Without the 

Knowledge of the Members. In a trial 

before a court-martial with members, 

proceedings must be conducted, to the 

extent practicable, so as to facilitate the 

making of claims of privilege without 

the knowledge of the members. This 

subdivision (b) does not apply to a 

special court-martial without a military 

judge. 

(c) Instruction. Upon request, any 

party against whom the members might 

draw an adverse inference from a claim 

of privilege is entitled to an instruction 

that no inference may be drawn 

therefrom except as provided in 

subdivision (a)(2). 

Rule 513. Psychotherapist—Patient 

Privilege 

(a) General Rule. A patient has a 

privilege to refuse to disclose and to 

prevent any other person from 

disclosing a confidential 

communication made between the 

patient and a psychotherapist or an 

assistant to the psychotherapist, in a 

case arising under the Uniform Code of 

Military Justice, if such communication 

was made for the purpose of facilitating 

diagnosis or treatment of the patient’s 

mental or emotional condition. 

(b) Definitions. As used in this rule: 

(1) ‘‘Patient’’ means a person who 

consults with or is examined or 

interviewed by a psychotherapist for 

purposes of advice, diagnosis, or 

treatment of a mental or emotional 

condition. 

(2) ‘‘Psychotherapist’’ means a 

psychiatrist, clinical psychologist, or 

clinical social worker who is licensed in 

any state, territory, possession, the 

District of Columbia or Puerto Rico to 

perform professional services as such, or 

who holds credentials to provide such 

services from any military health care 

facility, or is a person reasonably 

believed by the patient to have such 

license or credentials. 

(3) ‘‘Assistant to a psychotherapist’’ 

means a person directed by or assigned 

to assist a psychotherapist in providing 

professional services, or is reasonably 

believed by the patient to be such. 

(4) A communication is 

‘‘confidential’’ if not intended to be 

disclosed to third persons other than 

those to whom disclosure is in 

furtherance of the rendition of 

professional services to the patient or 

those reasonably necessary for such 

transmission of the communication. 

(5) ‘‘Evidence of a patient’s records or 

communications’’ means testimony of a 

psychotherapist, or assistant to the 

same, or patient records that pertain to 

communications by a patient to a 

psychotherapist, or assistant to the same 

for the purposes of diagnosis or 

treatment of the patient’s mental or 

emotional condition. 

(c) Who May Claim the Privilege. The 

privilege may be claimed by the patient 

or the guardian or conservator of the 

patient. A person who may claim the 

privilege may authorize trial counsel or 

defense counsel to claim the privilege 

on his or her behalf. The 

psychotherapist or assistant to the 

psychotherapist who received the 

communication may claim the privilege 

on behalf of the patient. The authority 

of such a psychotherapist, assistant, 

guardian, or conservator to so assert the 

privilege is presumed in the absence of 

evidence to the contrary. 

(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 neglect, or in 

a proceeding in which one spouse is 

charged with a crime against the child 

of either spouse; 

(3) When federal law, state law, or 

service regulation imposes a duty to 

report information contained in a 

communication; 

(4) When a psychotherapist or 

assistant to a psychotherapist believes 

that a patient’s mental or emotional 

condition makes the patient a danger to 

any person, including the patient; 

(5) If the communication clearly 

contemplated the future commission of 

a fraud or crime or if the services of the 

psychotherapist are sought or obtained 

to enable or aid anyone to commit or 

plan to commit what the patient knew 

or reasonably should have known to be 

a crime or fraud; 

(6) When necessary to ensure the 

safety and security of military 

personnel, military dependents, military 

property, classified information, or the 

accomplishment of a military mission; 

(7) When an accused offers statements 

or other evidence concerning his mental 

condition in defense, extenuation, or 

mitigation, under circumstances not 

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

302. In such situations, the military 

judge may, upon motion, order 

disclosure of any statement made by the 

accused to a psychotherapist as may be 

necessary in the interests of justice; or 

(8) When admission or disclosure of 

a communication is constitutionally 

required. 

(e) Procedure to Determine 

Admissibility of Patient Records or 

Communications. 

(1) In any case in which the 

production or admission of records or 

communications of a patient other than 

the accused is a matter in dispute, a 

party may seek an interlocutory ruling 

by the military judge. In order to obtain 

such a ruling, the party must: 


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(A) File a written motion at least 5 

days prior to entry of pleas specifically 

describing the evidence and stating the 

purpose for which it is sought or 

offered, or objected to, unless the 

military judge, for good cause shown, 

requires a different time for filing or 

permits filing during trial; and 

(B) Serve the motion on the opposing 

party, the military judge and, if 

practical, notify the patient or the 

patient’s guardian, conservator, or 

representative that the motion has been 

filed and that the patient has an 

opportunity to be heard as set forth in 

subdivision (e)(2). 

(2) Before ordering the production or 

admission of evidence of a patient’s 

records or communication, the military 

judge must conduct a hearing. Upon the 

motion of counsel for either party and 

upon good cause shown, the military 

judge may order the hearing closed. At 

the hearing, the parties may call 

witnesses, including the patient, and 

offer other relevant evidence. The 

patient must be afforded a reasonable 

opportunity to attend the hearing and be 

heard at the patient’s own expense 

unless the patient has been otherwise 

subpoenaed or ordered to appear at the 

hearing. However, the proceedings may 

not be unduly delayed for this purpose. 

In a case before a court-martial 

composed of a military judge and 

members, the military judge must 

conduct the hearing outside the 

presence of the members. 

(3) The military judge may examine 

the evidence or a proffer thereof in 

camera, if such examination is 

necessary to rule on the motion. 

(4) To prevent unnecessary disclosure 

of evidence of a patient’s records or 

communications, the military judge may 

issue protective orders or may admit 

only portions of the evidence. 

(5) The motion, related papers, and 

the record of the hearing must be sealed 

in accordance with R.C.M. 1103A and 

must remain under seal unless the 

military judge or an appellate court 

orders otherwise. 

Rule 514. Victim Advocate—Victim 

Privilege 

(a) General Rule. An alleged victim 

has a privilege to refuse to disclose and 

to prevent any other person from 

disclosing a confidential 

communication made between the 

alleged victim and a victim advocate, in 

a case arising under the Uniform Code 

of Military Justice, if such 

communication was made for the 

purpose of facilitating advice or 

supportive assistance to the alleged 

victim. 

(b) Definitions. As used in this rule: 

(1) ‘‘Alleged Victim’’ means any 

person who is alleged to have suffered 

direct physical or emotional harm as the 

result of a sexual or violent offense. 

(2) ‘‘Victim advocate’’ means a person 

who: 

(A) Is designated in writing as a 

victim advocate in accordance with 

service regulation; 

(B) Is authorized to perform victim 

advocate duties in accordance with 

service regulation and is acting in the 

performance of those duties; or 

(C) Is certified as a victim advocate 

pursuant to federal or state 

requirements. 

(3) A communication is 

‘‘confidential’’ if made in the course of 

the victim advocate—victim 

relationship and not intended to be 

disclosed to third persons other than 

those to whom disclosure is made in 

furtherance of the rendition of advice or 

assistance to the alleged victim or those 

reasonably necessary for such 

transmission of the communication. 

(4) ‘‘Evidence of an alleged victim’s 

records or communications’’ means 

testimony of a victim advocate, or 

records that pertain to communications 

by an alleged victim to a victim 

advocate, for the purposes of advising or 

providing supportive assistance to the 

alleged victim. 

(c) Who May Claim the Privilege. The 

privilege may be claimed by the alleged 

victim or the guardian or conservator of 

the alleged victim. A person who may 

claim the privilege may authorize trial 

counsel or a defense counsel 

representing the alleged victim to claim 

the privilege on his or her behalf. The 

victim advocate who received the 

communication may claim the privilege 

on behalf of the alleged victim. The 

authority of such a victim advocate, 

guardian, conservator, or a defense 

counsel representing the alleged 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 alleged victim is dead; 

(2) When federal law, state law, or 

service regulation imposes a duty to 

report information contained in a 

communication; 

(3) When a victim advocate believes 

that an alleged victim’s mental or 

emotional condition makes the alleged 

victim a danger to any person, including 

the alleged victim; 

(4) If the communication clearly 

contemplated the future commission of 

a fraud or crime, or if the services of the 

victim advocate are sought or obtained 

to enable or aid anyone to commit or 

plan to commit what the alleged victim 

knew or reasonably should have known 

to be a crime or fraud; 

(5) When necessary to ensure the 

safety and security of military 

personnel, military dependents, military 

property, classified information, or the 

accomplishment of a military mission; 

or 

(6) When admission or disclosure of 

a communication is constitutionally 

required. 

(e) Procedure to Determine 

Admissibility of Alleged Victim Records 

or Communications. 

(1) In any case in which the 

production or admission of records or 

communications of an alleged 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 filing or 

permits filing during trial; and 

(B) Serve the motion on the opposing 

party, the military judge and, if 

practicable, notify the alleged victim or 

the alleged victim’s guardian, 

conservator, or representative that the 

motion has been filed and that the 

alleged victim has an opportunity to be 

heard as set forth in subdivision (e)(2). 

(2) Before ordering the production or 

admission of evidence of an alleged 

victim’s records or communication, the 

military judge must conduct a hearing. 

Upon the motion of counsel for either 

party and upon good cause shown, the 

military judge may order the hearing 

closed. At the hearing, the parties may 

call witnesses, including the alleged 

victim, and offer other relevant 

evidence. The alleged victim must be 

afforded a reasonable opportunity to 

attend the hearing and be heard at the 

alleged victim’s own expense unless the 

alleged victim has been otherwise 

subpoenaed or ordered to appear at the 

hearing. However, the proceedings may 

not be unduly delayed for this purpose. 

In a case before a court-martial 

composed of a military judge and 

members, the military judge must 

conduct the hearing outside the 

presence of the members. 

(3) The military judge may examine 

the evidence or a proffer thereof in 

camera, if such examination is 

necessary to rule on the motion. 

(4) To prevent unnecessary disclosure 

of evidence of an alleged victim’s 

records or communications, the military 

judge may issue protective orders or 


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may admit only portions of the 

evidence. 

(5) The motion, related papers, and 

the record of the hearing must be sealed 

in accordance with R.C.M. 1103A and 

must remain under seal unless the 

military judge or an appellate court 

orders otherwise. 

Rule 601. Competency To Testify in 

General 

Every person is competent to be a 

witness unless these rules provide 

otherwise. 

Rule 602. Need for Personal Knowledge 

A witness may testify to a matter only 

if evidence is introduced sufficient to 

support a finding that the witness has 

personal knowledge of the matter. 

Evidence to prove personal knowledge 

may consist of the witness’s own 

testimony. This rule does not apply to 

a witness’s expert testimony under Mil. 

R. Evid. 703. 

Rule 603. Oath or Affirmation To 

Testify Truthfully 

Before testifying, a witness must give 

an oath or affirmation to testify 

truthfully. It must be in a form designed 

to impress that duty on the witness’s 

conscience. 

Rule 604. Interpreter 

An interpreter must be qualified and 

must give an oath or affirmation to make 

a true translation. 

Rule 605. Military Judge’s Competency 

as a Witness 

(a) The presiding military judge may 

not testify as a witness at any 

proceeding of that court-martial. A party 

need not object to preserve the issue. 

(b) This rule does not preclude the 

military judge from placing on the 

record matters concerning docketing of 

the case. 

Rule 606. Member’s Competency as a 

Witness 

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

member of a court-martial may not 

testify as a witness before the other 

members at any proceeding of that 

court-martial. If a member is called to 

testify, the military judge must—except 

in a special court-martial without a 

military judge—give the opposing party 

an opportunity to object outside the 

presence of the members. 

(b) During an Inquiry into the Validity 

of a Finding or Sentence. 

(1) Prohibited Testimony or Other 

Evidence. During an inquiry into the 

validity of a finding or sentence, a 

member of a court-martial may not 

testify about any statement made or 

incident that occurred during the 

deliberations of that court-martial; the 

effect of anything on that member’s or 

another member’s vote; or any member’s 

mental processes concerning the finding 

or sentence. The military judge may not 

receive a member’s affidavit or evidence 

of a member’s statement on these 

matters. 

(2) Exceptions. A member may testify 

about whether: 

(A) Extraneous prejudicial 

information was improperly brought to 

the members’ attention; 

(B) Unlawful command influence or 

any other outside influence was 

improperly brought to bear on any 

member; or 

(C) A mistake was made in entering 

the finding or sentence on the finding or 

sentence forms. 

Rule 607. Who May Impeach a Witness 

Any party, including the party that 

called the witness, may attack the 

witness’s credibility. 

Rule 608. A Witness’s Character for 

Truthfulness or Untruthfulness 

(a) Reputation or Opinion Evidence. A 

witness’s credibility may be attacked or 

supported by testimony about the 

witness’s reputation for having a 

character for truthfulness or 

untruthfulness, or by testimony in the 

form of an opinion about that character. 

Evidence of truthful character is 

admissible only after the witness’s 

character for truthfulness has been 

attacked. 

(b) Specific Instances of Conduct. 

Except for a criminal conviction under 

Mil. R. Evid. 609, extrinsic evidence is 

not admissible to prove specific 

instances of a witness’s conduct in order 

to attack or support the witness’s 

character for truthfulness. The military 

judge may, on cross-examination, allow 

them to be inquired into if they are 

probative of the character for 

truthfulness or untruthfulness of: 

(1) The witness; or 

(2) Another witness whose character 

the witness being cross-examined has 

testified about. 

By testifying on another matter, a 

witness does not waive any privilege 

against self-incrimination for testimony 

that relates only to the witness’s 

character for truthfulness. 

(c) Evidence of Bias. Bias, prejudice, 

or any motive to misrepresent may be 

shown to impeach the witness either by 

examination of the witness or by 

evidence otherwise adduced. 

Rule 609. Impeachment by Evidence of 

a Criminal Conviction 

(a) In General. The following rules 

apply to attacking a witness’s character 

for truthfulness by evidence of a 

criminal conviction: 

(1) For a crime that, in the convicting 

jurisdiction, was punishable by death, 

dishonorable discharge, or by 

imprisonment for more than one year, 

the evidence: 

(A) Must be admitted, subject to Mil. 

R. Evid. 403, in a court-martial in which 

the witness is not the accused; and 

(B) Must be admitted in a courtmartial in which the witness is the 

accused, if the probative value of the 

evidence outweighs its prejudicial effect 

to that accused; and 

(2) For any crime regardless of the 

punishment, the evidence must be 

admitted if the court can readily 

determine that establishing the elements 

of the crime required proving—or the 

witness’s admitting—a dishonest act or 

false statement. 

(3) In determining whether a crime 

tried by court-martial was punishable by 

death, dishonorable discharge, or 

imprisonment in excess of one year, the 

maximum punishment prescribed by 

the President under Article 56 at the 

time of the conviction applies without 

regard to whether the case was tried by 

general, special, or summary courtmartial. 

(b) Limit on Using the Evidence After 

10 Years. This subdivision (b) applies if 

more than 10 years have passed since 

the witness’s conviction or release from 

confinement for it, whichever is later. 

Evidence of the conviction is admissible 

only if: 

(1) Its probative value, supported by 

specific facts and circumstances, 

substantially outweighs its prejudicial 

effect; and 

(2) The proponent gives an adverse 

party reasonable written notice of the 

intent to use it so that the party has a 

fair opportunity to contest its use. 

(c) Effect of a Pardon, Annulment, or 

Certificate of Rehabilitation. Evidence of 

a conviction is not admissible if: 

(1) The conviction has been the 

subject of a pardon, annulment, 

certificate of rehabilitation, or other 

equivalent procedure based on a finding 

that the person has been rehabilitated, 

and the person has not been convicted 

of a later crime punishable by death, 

dishonorable discharge, or 

imprisonment for more than one year; or 

(2) The conviction has been the 

subject of a pardon, annulment, or other 

equivalent procedure based on a finding 

of innocence. 

(d) Juvenile Adjudications. Evidence 

of a juvenile adjudication is admissible 

under this rule only if: 

(1) The adjudication was of a witness 

other than the accused; 


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(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 courtmartial case when a sentence has been 

adjudged. 

Rule 610. Religious Beliefs or Opinions 

Evidence of a witness’s religious 

beliefs or opinions is not admissible to 

attack or support the witness’s 

credibility. 

Rule 611. Mode and Order of 

Examining Witnesses and Presenting 

Evidence 

(a) Control by the Military Judge; 

Purposes. The military judge should 

exercise reasonable control over the 

mode and order of examining witnesses 

and presenting evidence so as to: 

(1) Make those procedures effective 

for determining the truth; 

(2) Avoid wasting time; and 

(3) Protect witnesses from harassment 

or undue embarrassment. 

(b) Scope of Cross-Examination. 

Cross-examination should not go 

beyond the subject matter of the direct 

examination and matters affecting the 

witness’s credibility. The military judge 

may allow inquiry into additional 

matters as if on direct examination. 

(c) Leading Questions. Leading 

questions should not be used on direct 

examination except as necessary to 

develop the witness’s testimony. 

Ordinarily, the military judge should 

allow leading questions: 

(1) On cross-examination; and 

(2) When a party calls a hostile 

witness or a witness identified with an 

adverse party. 

(d) Remote live testimony of a child. 

(1) In a case involving domestic 

violence or the abuse of a child, the 

military judge must, subject to the 

requirements of subdivision (3) of this 

rule, allow an alleged child victim or 

witness to testify from an area outside 

the courtroom as prescribed in R.C.M. 

914A. 

(2) Definitions. As used in this rule: 

(A) ‘‘Child’’ means a person who is 

under the age of 16 at the time of his 

or her testimony. 

(B) ‘‘Abuse of a child’’ means the 

physical or mental injury, sexual abuse 

or exploitation, or negligent treatment of 

a child. 

(C) ‘‘Exploitation’’ means child 

pornography or child prostitution. 

(D) ‘‘Negligent treatment’’ means the 

failure to provide, for reasons other than 

poverty, adequate food, clothing, 

shelter, or medical care so as to 

endanger seriously the physical health 

of the child. 

(E) ‘‘Domestic violence’’ means an 

offense that has as an element the use, 

or attempted or threatened use of 

physical force against a person by a 

current or former spouse, parent, or 

guardian of the alleged victim; by a 

person with whom the alleged victim 

shares a child in common; by a person 

who is cohabiting with or has cohabited 

with the alleged victim as a spouse, 

parent, or guardian; or by a person 

similarly situated to a spouse, parent, or 

guardian of the alleged victim. 

(3) Remote live testimony will be used 

only where the military judge makes a 

finding on the record that a child is 

unable to testify in open court in the 

presence of the accused, for any of the 

following reasons: 

(A) The child is unable to testify 

because of fear; 

(B) There is substantial likelihood, 

established by expert testimony, that the 

child would suffer emotional trauma 

from testifying; 

(C) The child suffers from a mental or 

other infirmity; or 

(D) Conduct by an accused or defense 

counsel causes the child to be unable to 

continue testifying. 

(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 determining whether the impact 

on an alleged child victim or witness of 

one of the factors in subdivision (d)(3) 

is so substantial as to justify an order 

under subdivision (d)(1), 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, the prosecution, 

the defense counsel, 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 crossexamine the witness about it, and to 

introduce in evidence any portion that 

relates to the witness’s testimony. If the 

producing party claims that the writing 

includes unrelated or privileged matter, 

the military judge must examine the 

writing in camera, delete any unrelated 

or privileged portion, and order that the 

rest be delivered to the adverse party. 

Any portion deleted over objection must 

be preserved for the record. 

(c) Failure to Produce or Deliver the 

Writing. If a writing is not produced or 

is not delivered as ordered, the military 

judge may issue any appropriate order. 

If the prosecution does not comply, the 

military judge must strike the witness’s 

testimony or—if justice so requires— 

declare a mistrial. 

(d) No Effect on Other Disclosure 

Requirements. This rule does not 

preclude disclosure of information 

required to be disclosed under other 

provisions of these rules or this Manual. 

Rule 613. Witness’s Prior Statement 

(a) Showing or Disclosing the 

Statement During Examination. When 

examining a witness about the witness’s 

prior statement, a party need not show 

it or disclose its contents to the witness. 

The party must, on request, show it or 

disclose its contents to an adverse 

party’s attorney. 

(b) Extrinsic Evidence of a Prior 

Inconsistent Statement. Extrinsic 

evidence of a witness’s prior 

inconsistent statement is admissible 

only if the witness is given an 

opportunity to explain or deny the 

statement and an adverse party is given 

an opportunity to examine the witness 

about it, or if justice so requires. This 

subdivision (b) does not apply to an 

opposing party’s statement under Mil R. 

Evid. 801(d)(2). 

Rule 614. Court-Martial’s Calling or 

Examining a Witness 

(a) Calling. The military judge may— 

sua sponte or at the request of the 

members or the suggestion of a party— 

call a witness. Each party is entitled to 

cross-examine the witness. When the 

members wish to call or recall a witness, 

the military judge must determine 

whether the testimony would be 

relevant and not barred by any rule or 

provision of this Manual. 

(b) Examining. The military judge or 

members may examine a witness 

regardless of who calls the witness. 


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Members must submit their questions to 

the military judge in writing. Following 

the opportunity for review by both 

parties, the military judge must rule on 

the propriety of the questions, and ask 

the questions in an acceptable form on 

behalf of the members. When the 

military judge or the members call a 

witness who has not previously 

testified, the military judge may conduct 

the direct examination or may assign the 

responsibility to counsel for any party. 

(c) Objections. A party may object to 

the court-martial’s calling or examining 

a witness either at that time or at the 

next opportunity when the members are 

not present. 

Rule 615. Excluding Witnesses 

At a party’s request, the military judge 

must order witnesses excluded so that 

they cannot hear other witnesses’ 

testimony, or the military judge may do 

so sua sponte. This rule does not 

authorize excluding: 

(a) The accused; 

(b) A member of an armed service or 

an employee of the United States after 

being designated as a representative of 

the United States by the trial counsel; 

(c) A person whose presence a party 

shows to be essential to presenting the 

party’s case; 

(d) A person authorized by statute to 

be present; or 

(e) An alleged victim of an offense 

from the trial of an accused for that 

offense, when the sole basis for 

exclusion would be that the alleged 

victim may testify or present 

information during the presentencing 

phase of the trial. 

Rule 701. Opinion Testimony by Lay 

Witnesses 

If a witness is not testifying as an 

expert, testimony in the form of an 

opinion is limited to one that is: 

(a) Rationally based on the witness’s 

perception; 

(b) Helpful to clearly understanding 

the witness’s testimony or to 

determining a fact in issue; and 

(c) Not based on scientific, technical, 

or other specialized knowledge within 

the scope of Mil. R. Evid. 702. 

Rule 702. Testimony by Expert 

Witnesses 

A witness who is qualified as an 

expert by knowledge, skill, experience, 

training, or education may testify in the 

form of an opinion or otherwise if: 

(a) The expert’s scientific, technical, 

or other specialized knowledge will 

help the trier of fact to understand the 

evidence or to determine a fact in issue; 

(b) The testimony is based on 

sufficient facts or data; 

(c) The testimony is the product of 

reliable principles and methods; and 

(d) The expert has reliably applied the 

principles and methods to the facts of 

the case. 

Rule 703. Bases of an Expert’s Opinion 

Testimony 

An expert may base an opinion on 

facts or data in the case that the expert 

has been made aware of or personally 

observed. If experts in the particular 

field would reasonably rely on those 

kinds of facts or data in forming an 

opinion on the subject, they need not be 

admissible for the opinion to be 

admitted. If the facts or data would 

otherwise be inadmissible, the 

proponent of the opinion may disclose 

them to the members of a court-martial 

only if the military judge finds that their 

probative value in helping the members 

evaluate the opinion substantially 

outweighs their prejudicial effect. 

Rule 704. Opinion on an Ultimate Issue 

(a) In General—Not Automatically 

Objectionable. An opinion is not 

objectionable just because it embraces 

an ultimate issue. 

(b) Exception. An expert witness must 

not state an opinion about whether the 

accused did or did not have a mental 

state or condition that constitutes an 

element of the crime charged or of a 

defense. Those are matters for the trier 

of fact alone. 

Rule 705. Disclosing the Facts or Data 

Underlying an Expert’s Opinion 

Unless the military judge orders 

otherwise, an expert may state an 

opinion—and give the reasons for it— 

without first testifying to the underlying 

facts or data. The expert may be 

required to disclose those facts or data 

on cross-examination. 

Rule 706. Court-Appointed Expert 

Witnesses 

(a) Appointment Process. The trial 

counsel, the defense counsel, and the 

court-martial have equal opportunity to 

obtain expert witnesses under Article 46 

and R.C.M. 703. 

(b) Compensation. The compensation 

of expert witnesses is governed by 

R.C.M. 703. 

(c) Accused’s Choice of Experts. This 

rule does not limit an accused in calling 

any expert at the accused’s own 

expense. 

Rule 707. Polygraph Examinations 

(a) Prohibitions. Notwithstanding any 

other provision of law, the result of a 

polygraph examination, the polygraph 

examiner’s opinion, or any reference to 

an offer to take, failure to take, or taking 

of a polygraph examination is not 

admissible. 

(b) Statements Made During a 

Polygraph Examination. This rule does 

not prohibit admission of an otherwise 

admissible statement made during a 

polygraph examination. 

Rule 801. Definitions That Apply to 

This Section; Exclusions From Hearsay 

(a) Statement. ‘‘Statement’’ means a 

person’s oral assertion, written 

assertion, or nonverbal conduct, if the 

person intended it as an assertion. 

(b) Declarant. ‘‘Declarant’’ means the 

person who made the statement. 

(c) Hearsay. ‘‘Hearsay’’ means a 

statement that: 

(1) The declarant does not make while 

testifying at the current trial or hearing; 

and 

(2) A party offers in evidence to prove 

the truth of the matter asserted in the 

statement. 

(d) Statements that Are Not Hearsay. 

A statement that meets the following 

conditions is not hearsay: 

(1) A Declarant-Witness’s Prior 

Statement. The declarant testifies and is 

subject to cross-examination about a 

prior statement, and the statement: 

(A) Is inconsistent with the 

declarant’s testimony and was given 

under penalty of perjury at a trial, 

hearing, or other proceeding or in a 

deposition; 

(B) Is consistent with the declarant’s 

testimony and is offered to rebut an 

express or implied charge that the 

declarant recently fabricated it or acted 

from a recent improper influence or 

motive in so testifying; or 

(C) Identifies a person as someone the 

declarant perceived earlier. 

(2) An Opposing Party’s Statement. 

The statement is offered against an 

opposing party and: 

(A) Was made by the party in an 

individual or representative capacity; 

(B) Is one the party manifested that it 

adopted or believed to be true; 

(C) Was made by a person whom the 

party authorized to make a statement on 

the subject; 

(D) Was made by the party’s agent or 

employee on a matter within the scope 

of that relationship and while it existed; 

or 

(E) Was made by the party’s coconspirator during and in furtherance of 

the conspiracy. 

The statement must be considered but 

does not by itself establish the 

declarant’s authority under (C); the 

existence or scope of the relationship 

under (D); or the existence of the 

conspiracy or participation in it under 

(E). 


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Rule 802. The Rule Against Hearsay 

Hearsay is not admissible unless any 

of the following provides otherwise: 

(a) A federal statute; 

(b) These rules; or 

(c) Other rules prescribed by the 

Supreme Court pursuant to statutory 

authority. 

Rule 803. Exceptions to the Rule 

Against Hearsay—Regardless of 

Whether the Declarant Is Available as 

a Witness 

The following are not excluded by the 

rule against hearsay, regardless of 

whether the declarant is available as a 

witness: 

(1) Present Sense Impression. A 

statement describing or explaining an 

event or condition, made while or 

immediately after the declarant 

perceived it. 

(2) Excited Utterance. A statement 

relating to a startling event or condition, 

made while the declarant was under the 

stress of excitement that it caused. 

(3) Then-Existing Mental, Emotional, 

or Physical Condition. A statement of 

the declarant’s then-existing state of 

mind (such as motive, intent, or plan) or 

emotional, sensory, or physical 

condition (such as mental feeling, pain, 

or bodily health), but not including a 

statement of memory or belief to prove 

the fact remembered or believed unless 

it relates to the validity or terms of the 

declarant’s will. 

(4) Statement Made for Medical 

Diagnosis or Treatment. A statement 

that— 

(A) Is made for—and is reasonably 

pertinent to—medical diagnosis or 

treatment; and 

(B) Describes medical history; past or 

present symptoms or sensations; their 

inception; or their general cause. 

(5) Recorded Recollection. A record 

that: 

(A) Is on a matter the witness once 

knew about but now cannot recall well 

enough to testify fully and accurately; 

(B) Was made or adopted by the 

witness when the matter was fresh in 

the witness’s memory; and 

(C) Accurately reflects the witness’s 

knowledge. 

If admitted, the record may be read 

into evidence but may be received as an 

exhibit only if offered by an adverse 

party. 

(6) Records of a Regularly Conducted 

Activity. A record of an act, event, 

condition, opinion, or diagnosis if: 

(A) The record was made at or near 

the time by—or from information 

transmitted by—someone with 

knowledge; 

(B) The record was kept in the course 

of a regularly conducted activity of a 

uniformed service, business, institution, 

association, profession, organization, 

occupation, or calling of any kind, 

whether or not conducted for profit; 

(C) Making the record was a regular 

practice of that activity; 

(D) All these conditions are shown by 

the testimony of the custodian or 

another qualified witness, or by a 

certification that complies with Mil. R. 

Evid. 902(11) or with a statute 

permitting certification in a criminal 

proceeding in a court of the United 

States; and 

(E) Neither the source of information 

nor the method or circumstances of 

preparation indicate a lack of 

trustworthiness. 

Records of regularly conducted 

activities include, but are not limited to, 

enlistment papers, physical examination 

papers, fingerprint cards, forensic 

laboratory reports, chain of custody 

documents, morning reports and other 

personnel accountability documents, 

service records, officer and enlisted 

qualification records, logs, unit 

personnel diaries, individual equipment 

records, daily strength records of 

prisoners, and rosters of prisoners. 

(7) Absence of a Record of a Regularly 

Conducted Activity. Evidence that a 

matter is not included in a record 

described in paragraph (6) if: 

(A) The evidence is admitted to prove 

that the matter did not occur or exist; 

(B) A record was regularly kept for a 

matter of that kind; and 

(C) Neither the possible source of the 

information nor other circumstances 

indicate a lack of trustworthiness. 

(8) Public Records. A record or 

statement of a public office if: 

(A) It sets out: 

(i) The office’s activities; 

(ii) A matter observed while under a 

legal duty to report, but not including a 

matter observed by law-enforcement 

personnel and other personnel acting in 

a law enforcement capacity; or 

(iii) Against the government, factual 

findings from a legally authorized 

investigation; and 

(B) Neither the source of information 

nor other circumstances indicate a lack 

of trustworthiness. 

Notwithstanding (A)(ii), the following 

are admissible under this paragraph as 

a record of a fact or event if made by a 

person within the scope of the person’s 

official duties and those duties included 

a duty to know or to ascertain through 

appropriate and trustworthy channels of 

information the truth of the fact or event 

and to record such fact or event: 

enlistment papers, physical examination 

papers, fingerprint cards, forensic 

laboratory reports, chain of custody 

documents, morning reports and other 

personnel accountability documents, 

service records, officer and enlisted 

qualification records, court-martial 

conviction records, logs, unit personnel 

diaries, individual equipment records, 

daily strength records of prisoners, and 

rosters of prisoners. 

(9) Public Records of Vital Statistics. 

A record of a birth, death, or marriage, 

if reported to a public office in 

accordance with a legal duty. 

(10) Absence of a Public Record. 

Testimony—or a certification under Mil. 

R. Evid. 902—that a diligent search 

failed to disclose a public record or 

statement if the testimony or 

certification is admitted to prove that: 

(A) The record or statement does not 

exist; or 

(B) A matter did not occur or exist, if 

a public office regularly kept a record or 

statement for a matter of that kind. 

(11) Records of Religious 

Organizations Concerning Personal or 

Family History. A statement of birth, 

legitimacy, ancestry, marriage, divorce, 

death, relationship by blood or 

marriage, or similar facts of personal or 

family history, contained in a regularly 

kept record of a religious organization. 

(12) Certificates of Marriage, Baptism, 

and Similar Ceremonies. A statement of 

fact contained in a certificate: 

(A) Made by a person who is 

authorized by a religious organization or 

by law to perform the act certified; 

(B) Attesting that the person 

performed a marriage or similar 

ceremony or administered a sacrament; 

and 

(C) Purporting to have been issued at 

the time of the act or within a 

reasonable time after it. 

(13) Family Records. A statement of 

fact about personal or family history 

contained in a family record, such as a 

Bible, genealogy, chart, engraving on a 

ring, inscription on a portrait, or 

engraving on an urn or burial marker. 

(14) Records of Documents that Affect 

an Interest in Property. The record of a 

document that purports to establish or 

affect an interest in property if: 

(A) The record is admitted to prove 

the content of the original recorded 

document, along with its signing and its 

delivery by each person who purports to 

have signed it; 

(B) The record is kept in a public 

office; and 

(C) A statute authorizes recording 

documents of that kind in that office. 

(15) Statements in Documents that 

Affect an Interest in Property. A 

statement contained in a document that 

purports to establish or affect an interest 

in property if the matter stated was 

relevant to the document’s purpose 

unless later dealings with the property 


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are inconsistent with the truth of the 

statement or the purport of the 

document. 

(16) Statements in Ancient 

Documents. A statement in a document 

that is at least 20 years old and whose 

authenticity is established. 

(17) Market Reports and Similar 

Commercial Publications. Market 

quotations, lists (including government 

price lists), directories, or other 

compilations that are generally relied on 

by the public or by persons in particular 

occupations. 

(18) Statements in Learned Treatises, 

Periodicals, or Pamphlets. A statement 

contained in a treatise, periodical, or 

pamphlet if: 

(A) The statement is called to the 

attention of an expert witness on crossexamination or relied on by the expert 

on direct examination; and 

(B) The publication is established as 

a reliable authority by the expert’s 

admission or testimony, by another 

expert’s testimony, or by judicial notice. 

If admitted, the statement may be read 

into evidence but not received as an 

exhibit. 

(19) Reputation Concerning Personal 

or Family History. A reputation among 

a person’s family by blood, adoption, or 

marriage—or among a person’s 

associates or in the community— 

concerning the person’s birth, adoption, 

legitimacy, ancestry, marriage, divorce, 

death, relationship by blood, adoption, 

or marriage, or similar facts of personal 

or family history. 

(20) Reputation Concerning 

Boundaries or General History. A 

reputation in a community—arising 

before the controversy—concerning 

boundaries of land in the community or 

customs that affect the land, or 

concerning general historical events 

important to that community, state, or 

nation. 

(21) Reputation Concerning Character. 

A reputation among a person’s 

associates or in the community 

concerning the person’s character. 

(22) Judgment of a Previous 

Conviction. Evidence of a final 

judgment of conviction if: 

(A) The judgment was entered after a 

trial or guilty plea, but not a nolo 

contendere plea; 

(B) The conviction was for a crime 

punishable by death, dishonorable 

discharge, or by imprisonment for more 

than a year; 

(C) The evidence is admitted to prove 

any fact essential to the judgment; and 

(D) When offered by the prosecutor 

for a purpose other than impeachment, 

the judgment was against the accused. 

The pendency of an appeal may be 

shown but does not affect admissibility. 

In determining whether a crime tried by 

court-martial was punishable by death, 

dishonorable discharge, or 

imprisonment for more than one year, 

the maximum punishment prescribed 

by the President under Article 56 of the 

Uniform of Military Justice at the time 

of the conviction applies without regard 

to whether the case was tried by general, 

special, or summary court-martial. 

(23) Judgments Involving Personal, 

Family, or General History, or a 

Boundary. A judgment that is admitted 

to prove a matter of personal, family, or 

general history, or boundaries, if the 

matter: 

(A) Was essential to the judgment; 

and 

(B) Could be proved by evidence of 

reputation. 

Rule 804. Exceptions to the Rule 

Against Hearsay—When the Declarant 

Is Unavailable as a Witness 

(a) Criteria for Being Unavailable. A 

declarant is considered to be 

unavailable as a witness if the declarant: 

(1) Is exempted from testifying about 

the subject matter of the declarant’s 

statement because the military judge 

rules that a privilege applies; 

(2) Refuses to testify about the subject 

matter despite the military judge’s order 

to do so; 

(3) Testifies to not remembering the 

subject matter; 

(4) Cannot be present or testify at the 

trial or hearing because of death or a 

then-existing infirmity, physical illness, 

or mental illness; or 

(5) Is absent from the trial or hearing 

and the statement’s proponent has not 

been able, by process or other 

reasonable means, to procure: 

(A) The declarant’s attendance, in the 

case of a hearsay exception under 

subdivision (b)(1) or (b)(5); 

(B) The declarant’s attendance or 

testimony, in the case of a hearsay 

exception under subdivision (b)(2), 

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

(6) Is unavailable within the meaning 

of Article 49(d)(2). 

This subdivision (a) does not apply if 

the statement’s proponent procured or 

wrongfully caused the declarant’s 

unavailability as a witness in order to 

prevent the declarant from attending or 

testifying. 

(b) The Exceptions. The following are 

exceptions to the rule against hearsay, 

and are not excluded by that rule if the 

declarant is unavailable as a witness: 

(1) Former Testimony. Testimony 

that: 

(A) Was given by a witness at a trial, 

hearing, or lawful deposition, whether 

given during the current proceeding or 

a different one; and 

(B) Is now offered against a party who 

had an opportunity and similar motive 

to develop it by direct, cross-, or redirect 

examination. 

Subject to the limitations in Articles 

49 and 50, a record of testimony given 

before a court-martial, court of inquiry, 

military commission, other military 

tribunal, or pretrial investigation under 

Article 32 is admissible under this 

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

testimony is a verbatim record. 

(2) Statement under the Belief of 

Imminent Death. In a prosecution for 

any offense resulting in the death of the 

alleged victim, a statement that the 

declarant, while believing the 

declarant’s death to be imminent, made 

about its cause or circumstances. 

(3) Statement against Interest. A 

statement that: 

(A) A reasonable person in the 

declarant’s position would have made 

only if the person believed it to be true 

because, when made, it was so contrary 

to the declarant’s proprietary or 

pecuniary interest or had so great a 

tendency to invalidate the declarant’s 

claim against someone else or to expose 

the declarant to civil or criminal 

liability; and 

(B) Is supported by corroborating 

circumstances that clearly indicate its 

trustworthiness, if it tends to expose the 

declarant to criminal liability and is 

offered to exculpate the accused. 

(4) Statement of Personal or Family 

History. A statement about: 

(A) The declarant’s own birth, 

adoption, legitimacy, ancestry, marriage, 

divorce, relationship by blood or 

marriage, or similar facts of personal or 

family history, even though the 

declarant had no way of acquiring 

personal knowledge about that fact; or 

(B) Another person concerning any of 

these facts, as well as death, if the 

declarant was related to the person by 

blood, adoption, or marriage or was so 

intimately associated with the person’s 

family that the declarant’s information 

is likely to be accurate. 

(5) Other Exceptions. [Transferred to 

Rule 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. 


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Rule 806. Attacking and Supporting the 

Declarant’s Credibility 

When a hearsay statement—or a 

statement described in Mil. R. Evid. 

801(d)(2)(C), (D), or (E)—has been 

admitted in evidence, the declarant’s 

credibility may be attacked, and then 

supported, by any evidence that would 

be admissible for those purposes if the 

declarant had testified as a witness. The 

military judge may admit evidence of 

the declarant’s inconsistent statement or 

conduct, regardless of when it occurred 

or whether the declarant had an 

opportunity to explain or deny it. If the 

party against whom the statement was 

admitted calls the declarant as a 

witness, the party may examine the 

declarant on the statement as if on 

cross-examination. 

Rule 807. Residual Exception 

(a) In General. Under the following 

circumstances, a hearsay statement is 

not excluded by the rule against hearsay 

even if the statement is not specifically 

covered by a hearsay exception in Mil. 

R. Evid. 803 or 804: 

(1) The statement has equivalent 

circumstantial guarantees of 

trustworthiness; 

(2) It is offered as evidence of a 

material fact; 

(3) It is more probative on the point 

for which it is offered than any other 

evidence that the proponent can obtain 

through reasonable efforts; and 

(4) Admitting it will best serve the 

purposes of these rules and the interests 

of justice. 

(b) Notice. The statement is 

admissible only if, before the trial or 

hearing, the proponent gives an adverse 

party reasonable notice of the intent to 

offer the statement and its particulars, 

including the declarant’s name and 

address, so that the party has a fair 

opportunity to meet it. 

Rule 901. Authenticating or Identifying 

Evidence 

(a) In General. To satisfy the 

requirement of authenticating or 

identifying an item of evidence, the 

proponent must produce evidence 

sufficient to support a finding that the 

item is what the proponent claims it is. 

(b) Examples. The following are 

examples only—not a complete list—of 

evidence that satisfies the requirement: 

(1) Testimony of a Witness With 

Knowledge. Testimony that an item is 

what it is claimed to be. 

(2) Nonexpert Opinion About 

Handwriting. A nonexpert’s opinion 

that handwriting is genuine, based on a 

familiarity with it that was not acquired 

for the current litigation. 

(3) Comparison by an Expert Witness 

or the Trier of Fact. A comparison with 

an authenticated specimen by an expert 

witness or the trier of fact. 

(4) Distinctive Characteristics and the 

Like. The appearance, contents, 

substance, internal patterns, or other 

distinctive characteristics of the item, 

taken together with all the 

circumstances. 

(5) Opinion About a Voice. An 

opinion identifying a person’s voice— 

whether heard firsthand or through 

mechanical or electronic transmission 

or recording—based on hearing the 

voice at any time under circumstances 

that connect it with the alleged speaker. 

(6) Evidence About a Telephone 

Conversation. For a telephone 

conversation, evidence that a call was 

made to the number assigned at the time 

to: 

(A) A particular person, if 

circumstances, including selfidentification, show that the person 

answering was the one called; or 

(B) A particular business, if the call 

was made to a business and the call 

related to business reasonably 

transacted over the telephone. 

(7) Evidence about Public Records. 

Evidence that: 

(A) A document was recorded or filed 

in a public office as authorized by law; 

or 

(B) A purported public record or 

statement is from the office where items 

of this kind are kept. 

(8) Evidence About Ancient 

Documents or Data Compilations. For a 

document or data compilation, evidence 

that it: 

(A) Is in a condition that creates no 

suspicion about its authenticity; 

(B) Was in a place where, if authentic, 

it would likely be; and 

(C) Is at least 20 years old when 

offered. 

(9) Evidence About a Process or 

System. Evidence describing a process 

or system and showing that it produces 

an accurate result. 

(10) Methods Provided by a Statute or 

Rule. Any method of authentication or 

identification allowed by a federal 

statute, a rule prescribed by the 

Supreme Court pursuant to statutory 

authority, or an applicable regulation 

prescribed pursuant to statutory 

authority. 

Rule 902. Evidence That Is SelfAuthenticating 

The following items of evidence are 

self-authenticating; they require no 

extrinsic evidence of authenticity in 

order to be admitted: 

(1) Domestic Public Documents that 

are Sealed and Signed. A document that 

bears: 

(A) A seal purporting to be that of the 

United States; any state, district, 

commonwealth, territory, or insular 

possession of the United States; the 

former Panama Canal Zone; the Trust 

Territory of the Pacific Islands; a 

political subdivision of any of these 

entities; or a department, agency, or 

officer of any entity named above; and 

(B) A signature purporting to be an 

execution or attestation. 

(2) Domestic Public Documents That 

Are Not Sealed but Are Signed and 

Certified. A document that bears no seal 

if: 

(A) It bears the signature of an officer 

or employee of an entity named in 

subdivision (1)(A) above; and 

(B) Another public officer who has a 

seal and official duties within that same 

entity certifies under seal—or its 

equivalent—that the signer has the 

official capacity and that the signature 

is genuine. 

(3) Foreign Public Documents. A 

document that purports to be signed or 

attested by a person who is authorized 

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

document must be accompanied by a 

final certification that certifies the 

genuineness of the signature and official 

position of the signer or attester—or of 

any foreign official whose certificate of 

genuineness relates to the signature or 

attestation or is in a chain of certificates 

of genuineness relating to the signature 

or attestation. The certification may be 

made by a secretary of a United States 

embassy or legation; by a consul 

general, vice consul, or consular agent 

of the United States; or by a diplomatic 

or consular official of the foreign 

country assigned or accredited to the 

United States. If all parties have been 

given a reasonable opportunity to 

investigate the document’s authenticity 

and accuracy, the military judge may, 

for good cause, either: 

(A) Order that it be treated as 

presumptively authentic without final 

certification; or 

(B) Allow it to be evidenced by an 

attested summary with or without final 

certification. 

(4) Certified Copies of Public Records. 

A copy of an official record—or a copy 

of a document that was recorded or filed 

in a public office as authorized by law— 

if the copy is certified as correct by: 

(A) The custodian or another person 

authorized to make the certification; or 

(B) A certificate that complies with 

subdivision (1), (2), or (3) above, a 

federal statute, a rule prescribed by the 

Supreme Court pursuant to statutory 

authority, or an applicable regulation 

prescribed pursuant to statutory 

authority. 


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(4a) Documents or Records of the 

United States Accompanied by Attesting 

Certificates. Documents or records kept 

under the authority of the United States 

by any department, bureau, agency, 

office, or court thereof when attached to 

or accompanied by an attesting 

certificate of the custodian of the 

document or record without further 

authentication. 

(5) Official Publications. A book, 

pamphlet, or other publication 

purporting to be issued by a public 

authority. 

(6) Newspapers and Periodicals. 

Printed material purporting to be a 

newspaper or periodical. 

(7) Trade Inscriptions and the Like. 

An inscription, sign, tag, or label 

purporting to have been affixed in the 

course of business and indicating origin, 

ownership, or control. 

(8) Acknowledged Documents. A 

document accompanied by a certificate 

of acknowledgment that is lawfully 

executed by a notary public or another 

officer who is authorized to take 

acknowledgments. 

(9) Commercial Paper and Related 

Documents. Commercial paper, a 

signature on it, and related documents, 

to the extent allowed by general 

commercial law. 

(10) Presumptions under a Federal 

Statute or Regulation. A signature, 

document, or anything else that a 

federal statute, or an applicable 

regulation prescribed pursuant to 

statutory authority, declares to be 

presumptively or prima facie genuine or 

authentic. 

(11) Certified Domestic Records of a 

Regularly Conducted Activity. The 

original or a copy of a domestic record 

that meets the requirements of Mil. R. 

Evid. 803(6)(A)–(C), as shown by a 

certification of the custodian or another 

qualified person that complies with a 

federal statute or a rule prescribed by 

the Supreme Court pursuant to statutory 

authority. Before the trial or hearing, or 

at a later time that the military judge 

allows for good cause, the proponent 

must give an adverse party reasonable 

written notice of the intent to offer the 

record and must make the record and 

certification available for inspection so 

that the party has a fair opportunity to 

challenge them. 

Rule 903. Subscribing Witness’s 

Testimony 

A subscribing witness’s testimony is 

necessary to authenticate a writing only 

if required by the law of the jurisdiction 

that governs its validity. 

Rule 1001. Definitions That Apply to 

This Section 

In this section: 

(a) A ‘‘writing’’ consists of letters, 

words, numbers, or their equivalent set 

down in any form. 

(b) A ‘‘recording’’ consists of letters, 

words, numbers, or their equivalent 

recorded in any manner. 

(c) A ‘‘photograph’’ means a 

photographic image or its equivalent 

stored in any form. 

(d) An ‘‘original’’ of a writing or 

recording means the writing or 

recording itself or any counterpart 

intended to have the same effect by the 

person who executed or issued it. For 

electronically stored information, 

‘‘original’’ means any printout or other 

output readable by sight if it accurately 

reflects the information. An ‘‘original’’ 

of a photograph includes the negative or 

a print from it. 

(e) A ‘‘duplicate’’ means a counterpart 

produced by a mechanical, 

photographic, chemical, electronic, or 

other equivalent process or technique 

that accurately reproduces the original. 

Rule 1002. Requirement of the Original 

An original writing, recording, or 

photograph is required in order to prove 

its content unless these rules, this 

Manual, or a federal statute provides 

otherwise. 

Rule 1003. Admissibility of Duplicates 

A duplicate is admissible to the same 

extent as the original unless a genuine 

question is raised about the original’s 

authenticity or the circumstances make 

it unfair to admit the duplicate. 

Rule 1004. Admissibility of Other 

Evidence of Content 

An original is not required and other 

evidence of the content of a writing, 

recording, or photograph is admissible 

if: 

(a) All the originals are lost or 

destroyed, and not by the proponent 

acting in bad faith; 

(b) An original cannot be obtained by 

any available judicial process; 

(c) The party against whom the 

original would be offered had control of 

the original; was at that time put on 

notice, by pleadings or otherwise, that 

the original would be a subject of proof 

at the trial or hearing; and fails to 

produce it at the trial or hearing; or 

(d) The writing, recording, or 

photograph is not closely related to a 

controlling issue. 

Rule 1005. Copies of Public Records To 

Prove Content 

The proponent may use a copy to 

prove the content of an official record— 

or of a document that was recorded or 

filed in a public office as authorized by 

law—if these conditions are met: The 

record or document is otherwise 

admissible; and the copy is certified as 

correct in accordance with Mil. R. Evid. 

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

witness who has compared it with the 

original. If no such copy can be obtained 

by reasonable diligence, then the 

proponent may use other evidence to 

prove the content. 

Rule 1006. Summaries To Prove 

Content 

The proponent may use a summary, 

chart, or calculation to prove the 

content of voluminous writings, 

recordings, or photographs that cannot 

be conveniently examined in court. The 

proponent must make the originals or 

duplicates available for examination or 

copying, or both, by other parties at a 

reasonable time or place. The military 

judge may order the proponent to 

produce them in court. 

Rule 1007. Testimony or Statement of a 

Party To Prove Content 

The proponent may prove the content 

of a writing, recording, or photograph by 

the testimony, deposition, or written 

statement of the party against whom the 

evidence is offered. The proponent need 

not account for the original. 

Rule 1008. Functions of the Military 

Judge and the Members 

Ordinarily, the military judge 

determines whether the proponent has 

fulfilled the factual conditions for 

admitting other evidence of the content 

of a writing, recording, or photograph 

under Mil. R. Evid. 1004 or 1005. When 

a court-martial is composed of a military 

judge and members, the members 

determine—in accordance with Mil. R. 

Evid. 104(b)—any issue about whether: 

(a) An asserted writing, recording, or 

photograph ever existed; 

(b) Another one produced at the trial 

or hearing is the original; or 

(c) Other evidence of content 

accurately reflects the content. 

Rule 1101. Applicability of These Rules 

(a) In General. Except as otherwise 

provided in this Manual, these rules 

apply generally to all courts-martial, 

including summary courts-martial, 

Article 39(a) sessions, limited 

factfinding proceedings ordered on 

review, proceedings in revision, and 

contempt proceedings other than 

contempt proceedings in which the 

judge may act summarily. 

(b) Rules Relaxed. The application of 

these rules may be relaxed in 

presentencing proceedings as provided 


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under R.C.M. 1001 and otherwise as 

provided in this Manual. 

(c) Rules on Privilege. The rules on 

privilege apply at all stages of a case or 

proceeding. 

(d) Exceptions. These rules—except 

for Mil. R. Evid. 412 and those on 

privilege—do not apply to the 

following: 

(1) The military judge’s 

determination, under Rule 104(a), on a 

preliminary question of fact governing 

admissibility; 

(2) Pretrial investigations under 

Article 32; 

(3) Proceedings for vacation of 

suspension of sentence under Article 

72; and 

(4) Miscellaneous actions and 

proceedings related to search 

authorizations, pretrial restraint, pretrial 

confinement, or other proceedings 

authorized under the Uniform Code of 

Military Justice or this Manual that are 

not listed in subdivision (a). 

(e) Other Statutes and Rules. A federal 

statute, a rule prescribed by the 

Supreme Court pursuant to statutory 

authority, or a rule prescribed in 

regulations promulgated under statutory 

authority may provide for admitting or 

excluding evidence independently from 

these rules. 

Rule 1102. Amendments 

(a) Amendments to the Federal Rules 

of Evidence—other than Articles III and 

V—will amend parallel provisions of 

the Military Rules of Evidence by 

operation of law 18 months after the 

effective date of such amendments, 

unless action to the contrary is taken by 

the President. 

(b) Rules Determined Not to Apply. 

The President has determined that the 

following Federal Rules of Evidence do 

not apply to the Military Rules of 

Evidence: Rules 301, 302, 415, and 

902(12). 

Rule 1103. Title 

These rules may be cited as the 

‘‘Military Rules of Evidence.’’ 

Section 2. These amendments shall 

take effect 30 days from the date of this 

order. 

(a) Nothing in these amendments 

shall be construed to make punishable 

any act done or omitted prior to the 

effective date of this order that was not 

punishable when done or omitted. 

(b) Nothing in these amendments 

shall be construed to invalidate any 

nonjudicial punishment proceedings, 

restraint, investigation, referral of 

charges, trial in which arraignment 

occurred, or other action begun prior to 

the effective date of this order, and any 

such nonjudicial punishment, restraint, 

investigation, referral of charges, trial, or 

other action may proceed in the same 

manner and with the same effect as if 

these amendments had not been 

prescribed. 

The White House 

Changes to the Discussion 

Accompanying the Manual for Courts 

Martial, United States 

(a) A new Discussion is added 

following Mil. R. Evid. 301(c) as 

follows: 

‘‘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, in a 

court-martial with members, the 

members. Failure to so advise a witness 

does not make the testimony of the 

witness inadmissible.’’ 

(b) A new Discussion is added 

following Mil. R. Evid. 305(a)(1) as 

follows: 

‘‘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: 

(1) Informing the accused or suspect 

of the nature of the accusation; 

(2) advising the accused or suspect 

that the accused or suspect has the right 

to remain silent; and 

(3) Advising the accused or suspect 

that any statement made may be used as 

evidence against the accused or suspect 

in a trial by court-martial.’’ 

(c) A new Discussion is added 

following Mil. R. Evid. 305(a)(3) as 

follows: 

‘‘If a person chooses to exercise the 

privilege against self-incrimination, 

questioning must cease immediately. If 

a person who is subjected to 

interrogation under the circumstances 

described in subdivisions (a)(2) or (a)(3) 

of this rule chooses to exercise the right 

to counsel, questioning must cease until 

counsel is present.’’ 

(d) A new Discussion is added 

following Mil. R. Evid. 312(b)(2)(F) as 

follows: 

‘‘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.’’ 

(e) A new Discussion is added 

following Mil. R. Evid. 312(e) as 

follows: 

‘‘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) A new Discussion is added 

following Mil. R. Evid. 312(f) as follows: 

‘‘Nothing in this rule will be deemed 

to interfere with the lawful authority of 

the armed forces to take whatever action 

may be necessary to preserve the health 

of a servicemember.’’ 

(g) A new Discussion is added 

following Mil. R. Evid. 314(c) as 

follows: 

‘‘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.’’ 

(h) A new Discussion is added 

following Mil. R. Evid. 314(f)(2) as 

follows: 

‘‘Subdivision (f)(2) requires a 

reasonable belief that the individual to 

be frisked is armed and presently 

dangerous. The test is whether a 

reasonably prudent man in similar 

circumstances would be warranted in a 

belief that his safety was in danger. The 

purpose of a frisk is to search for 

weapons or other dangerous items, 

including but not limited to: knives, 

needles, or razor blades. The purpose of 

the frisk is not to search for contraband; 

however, contraband or evidence that is 

located in the process of a lawful frisk 

may be seized.’’ 

(i) A new Discussion is added 

following Mil. R. Evid. 315(a) as 

follows: 

‘‘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 


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Federal Register / Vol. 76, No. 202 / Wednesday, October 19, 2011 / Notices 65093 

substance of the authorization. Such 

notice may be made prior to or 

contemporaneously with the search. 

Property seized should be inventoried at 

the time of a seizure or as soon 

thereafter as practicable. A copy of the 

inventory should be given to a person 

from whose possession or premises the 

property was taken. Failure to provide 

notice, make an inventory, furnish a 

copy thereof, or otherwise comply with 

this guidance does not render a search 

or seizure unlawful within the meaning 

of Mil. R. Evid. 311.’’ 

(j) A new Discussion is added 

following Mil. R. Evid. 315(c)(4) as 

follows: 

‘‘If nonmilitary property within a 

foreign country is owned, used, 

occupied by, or in the possession of an 

agency of the United States other than 

the Department of Defense, a search 

should be conducted in coordination 

with an appropriate representative of 

the agency concerned, although failure 

to obtain such coordination would not 

render a search unlawful within the 

meaning of Mil. R. Evid. 311. If other 

nonmilitary property within a foreign 

country is to be searched, the search 

should be conducted in accordance with 

any relevant treaty or agreement or in 

coordination with an appropriate 

representative of the foreign country, 

although failure to obtain such 

coordination or noncompliance with a 

treaty or agreement would not render a 

search unlawful within the meaning of 

Mil. R. Evid. 311.’’ 

(k) A new Discussion is added 

following Mil. R. Evid. 317(b) as 

follows: 

‘‘Pursuant to 18 U.S.C. 2516(1), the 

Attorney General, or any Assistant 

Attorney General specially designated 

by the Attorney General may authorize 

an application to a federal judge of 

competent jurisdiction for, and such 

judge may grant in conformity with 18 

U.S.C. 2518, an order authorizing or 

approving the interception of wire or 

oral communications by the Department 

of Defense, the Department of Homeland 

Security, or any Military Department for 

purposes of obtaining evidence 

concerning the offenses enumerated in 

18 U.S.C. 2516(1), to the extent such 

offenses are punishable under the 

Uniform Code of Military Justice.’’ 

(l) A new Discussion is added 

following Mil. R. Evid. 412(c)(3) as 

follows: 

‘‘After hearing all relevant evidence, 

the military judge should carefully tailor 

an order that protects both the alleged 

victim’s privacy interests and the 

accused’s constitutional rights, bearing 

in mind that the alleged victim’s privacy 

interests cannot preclude the admission 

of constitutionally required evidence. 

Finally, in making the order, the 

military judge should conduct the 

balancing test under Mil. R. Evid. 403.’’ 

(m) A new Discussion is added 

following Mil. R. Evid. 312(f) as follows: 

505(k)(3) 

‘‘In addition to the sixth amendment 

right of an accused to a public trial, the 

Supreme Court has held that the press 

and general public have a constitutional 

right under the first amendment to 

access to criminal trials. United States v. 

Hershey, 20 M.J. 433 (C.M.A. 1985) 

citing Richmond Newspapers, Inc. v. 

Virginia, 448 U.S. 555 (1980). The test 

that must be met before closure of a 

criminal trial to the public is set out in 

Press-Enterprise Co. v. Superior Court, 

464 U.S. 501 (1984), to wit: the party 

seeking closure must advance an 

overriding interest that is likely to be 

prejudiced; the closure must be 

narrowly tailored to protect that 

interest; the trial court must consider 

reasonable alternatives to closure; and it 

must make adequate findings 

supporting the closure to aid in review.’’ 

Dated: October 12, 2011. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2011–26896 Filed 10–18–11; 8:45 am] 

BILLING CODE 5001–06–P 


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