10 U.S.C. § 949a — Rules

Page 857 TITLE 10—ARMED FORCES § 949a with subsection (a), the accused shall be in- formed of the charges and specifications against the accused as soon as practicable. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2579.) Editorial Notes PRIOR PROVISIONS A prior section 948q, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2606, related to charges and speci- fications, prior to the general amendment of this chap- ter by Pub. L. 111–84. § 948r. Exclusion of statements obtained by tor- ture or cruel, inhuman, or degrading treat- ment; prohibition of self-incrimination; ad- mission of other statements of the accused (a) EXCLUSION OF STATEMENTS OBTAIN BY TOR- TURE OR CRUEL, INHUMAN, OR DEGRADING TREAT- MENT.—No statement obtained by the use of tor- ture or by cruel, inhuman, or degrading treat- ment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), wheth- er or not under color of law, shall be admissible in a military commission under this chapter, ex- cept against a person accused of torture or such treatment as evidence that the statement was made. (b) SELF-INCRIMINATION PROHIBITED.—No per- son shall be required to testify against himself or herself at a proceeding of a military commis- sion under this chapter. (c) OTHER STATEMENTS OF THE ACCUSED.—A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military judge finds— (1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) that— (A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely re- lated active combat engagement, and the in- terests of justice would best be served by ad- mission of the statement into evidence; or (B) the statement was voluntarily given. (d) DETERMINATION OF VOLUNTARINESS.—In de- termining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following: (1) The details of the taking of the state- ment, accounting for the circumstances of the conduct of military and intelligence oper- ations during hostilities. (2) The characteristics of the accused, such as military training, age, and education level. (3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused. (Added by Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2580.) Editorial Notes PRIOR PROVISIONS A prior section 948r, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2607; amended Pub. L. 110–181, div. A, title X, § 1063(a)(4), Jan. 28, 2008, 122 Stat. 321, related to prohibition of compulsory self-incrimination and treatment of statements obtained by torture and other statements, prior to the general amendment of this chapter by Pub. L. 111–84. § 948s. Service of charges The trial counsel assigned to a case before a military commission under this chapter shall cause to be served upon the accused and mili- tary defense counsel a copy of the charges upon which trial is to be had in English and, if appro- priate, in another language that the accused un- derstands, sufficiently in advance of trial to pre- pare a defense. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2580.) Editorial Notes PRIOR PROVISIONS A prior section 948s, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2607, related to service of charges, prior to the general amendment of this chapter by Pub. L. 111–84. SUBCHAPTER IV—TRIAL PROCEDURE Sec. 949a. Rules. 949b. Unlawfully influencing action of military commission and United States Court of Military Commission Review. 949c. Duties of trial counsel and defense counsel. 949d. Sessions. 949e. Continuances. 949f. Challenges. 949g. Oaths. 949h. Former jeopardy. 949i. Pleas of the accused. 949j. Opportunity to obtain witnesses and other evidence. 949k. Defense of lack of mental responsibility. 949l. Voting and rulings. 949m. Number of votes required. 949n. Military commission to announce action. 949o. Record of trial. § 949a. Rules (a) PROCEDURES AND RULES OF EVIDENCE.—Pre- trial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense. Such procedures may not be contrary to or incon- sistent with this chapter. Except as otherwise provided in this chapter or chapter 47 of this title, the procedures and rules of evidence appli- cable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter. (b) EXCEPTIONS.—(1) In trials by military com- mission under this chapter, the Secretary of De- fense, in consultation with the Attorney Gen- eral, may make such exceptions in the applica- bility of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence oper- ations during hostilities or by other practical need consistent with this chapter. (2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evi- dence in trials by military commission under Page 858 TITLE 10—ARMED FORCES § 949a this chapter shall include, at a minimum, the following rights of the accused: (A) To present evidence in the accused’s de- fense, to cross-examine the witnesses who tes- tify against the accused, and to examine and respond to all evidence admitted against the accused on the issue of guilt or innocence and for sentencing, as provided for by this chapter. (B) To be present at all sessions of the mili- tary commission (other than those for delib- erations or voting), except when excluded under section 949d of this title. (C)(i) When none of the charges sworn against the accused are capital, to be rep- resented before a military commission by ci- vilian counsel if provided at no expense to the Government, and by either the defense counsel detailed or the military counsel of the accused’s own selection, if reasonably avail- able. (ii) When any of the charges sworn against the accused are capital, to be represented be- fore a military commission in accordance with clause (i) and, to the greatest extent prac- ticable, by at least one additional counsel who is learned in applicable law relating to capital cases and who, if necessary, may be a civilian and compensated in accordance with regula- tions prescribed by the Secretary of Defense. (D) To self-representation, if the accused knowingly and competently waives the assist- ance of counsel, subject to the provisions of paragraph (4). (E) To the suppression of evidence that is not reliable or probative. (F) To the suppression of evidence the pro- bative value of which is substantially out- weighed by— (i) the danger of unfair prejudice, confu- sion of the issues, or misleading the mem- bers; or (ii) considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (3) In making exceptions in the applicability in trials by military commission under this chapter from the procedures and rules otherwise applicable in general courts-martial, the Sec- retary of Defense may provide the following: (A) Evidence seized outside the United States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or authorization. (B) A statement of the accused that is other- wise admissible shall not be excluded from trial by military commission on grounds of al- leged coercion or compulsory self-incrimina- tion so long as the evidence complies with the provisions of section 948r of this title. (C) Evidence shall be admitted as authentic so long as— (i) the military judge of the military com- mission determines that there is sufficient evidence that the evidence is what it is claimed to be; and (ii) the military judge instructs the mem- bers that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence. (D) Hearsay evidence not otherwise admis- sible under the rules of evidence applicable in trial by general courts-martial may be admit- ted in a trial by military commission only if— (i) the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the proponent’s intention to offer the evidence, and the particulars of the evidence (includ- ing information on the circumstances under which the evidence was obtained); and (ii) the military judge, after taking into account all of the circumstances sur- rounding the taking of the statement, in- cluding the degree to which the statement is corroborated, the indicia of reliability with- in the statement itself, and whether the will of the declarant was overborne, determines that— (I) the statement is offered as evidence of a material fact; (II) the statement is probative on the point for which it is offered; (III) direct testimony from the witness is not available as a practical matter, taking into consideration the physical location of the witness, the unique circumstances of military and intelligence operations dur- ing hostilities, and the adverse impacts on military or intelligence operations that would likely result from the production of the witness; and (IV) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the state- ment into evidence. (4)(A) The accused in a military commission under this chapter who exercises the right to self-representation under paragraph (2)(D) shall conform the accused’s deportment and the con- duct of the defense to the rules of evidence, pro- cedure, and decorum applicable to trials by mili- tary commission. (B) Failure of the accused to conform to the rules described in subparagraph (A) may result in a partial or total revocation by the military judge of the right of self-representation under paragraph (2)(D). In such case, the military counsel of the accused or an appropriately au- thorized civilian counsel shall perform the func- tions necessary for the defense. (c) DELEGATION OF AUTHORITY TO PRESCRIBE REGULATIONS.—The Secretary of Defense may delegate the authority of the Secretary to pre- scribe regulations under this chapter. (d) NOTICE TO CONGRESS OF MODIFICATION OF RULES.—Not later than 60 days before the date on which any proposed modification of the rules in effect for military commissions under this chapter goes into effect, the Secretary of De- fense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report describing the proposed modification. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2581; amended Pub. L. 112–81, div. A, title X, § 1034(a), Dec. 31, 2011, 125 Stat. 1572.) Page 859 TITLE 10—ARMED FORCES § 949b Editorial Notes PRIOR PROVISIONS A prior section 949a, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2608, related to rules, prior to the general amendment of this chapter by Pub. L. 111–84. AMENDMENTS 2011—Subsec. (b)(2)(C)(i), (ii). Pub. L. 112–81 sub- stituted ‘‘sworn’’ for ‘‘preferred’’. § 949b. Unlawfully influencing action of military commission and United States Court of Mili- tary Commission Review (a) MILITARY COMMISSIONS.—(1) No authority convening a military commission under this chapter may censure, reprimand, or admonish the military commission, or any member, mili- tary judge, or counsel thereof, with respect to the findings or sentence adjudged by the mili- tary commission, or with respect to any other exercises of its or their functions in the conduct of the proceedings. (2) No person may attempt to coerce or, by any unauthorized means, influence— (A) the action of a military commission under this chapter, or any member thereof, in reaching the findings or sentence in any case; (B) the action of any convening, approving, or reviewing authority with respect to their judicial acts; or (C) the exercise of professional judgment by trial counsel or defense counsel. (3) The provisions of this subsection shall not apply with respect to— (A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or (B) statements and instructions given in open proceedings by a military judge or coun- sel. (b) UNITED STATES COURT OF MILITARY COMMIS- SION REVIEW.—(1) No person may attempt to co- erce or, by any unauthorized means, influence— (A) the action of a judge on the United States Court of Military Commissions Review in reaching a decision on the findings or sen- tence on appeal in any case; or (B) the exercise of professional judgment by trial counsel or defense counsel appearing be- fore the United States Court of Military Com- mission Review. (2) No person may censure, reprimand, or ad- monish a judge on the United States Court of Military Commission Review, or counsel there- of, with respect to any exercise of their func- tions in the conduct of proceedings under this chapter. (3) The provisions of this subsection shall not apply with respect to— (A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or (B) statements and instructions given in open proceedings by a judge on the United States Court of Military Commission Review, or counsel. (4) No appellate military judge on the United States Court of Military Commission Review may be reassigned to other duties, except under circumstances as follows: (A) The appellate military judge voluntarily requests to be reassigned to other duties and the Secretary of Defense, or the designee of the Secretary, in consultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, ap- proves such reassignment. (B) The appellate military judge retires or otherwise separates from the armed forces. (C) The appellate military judge is reas- signed to other duties by the Secretary of De- fense, or the designee of the Secretary, in con- sultation with the Judge Advocate General of the armed force of which the appellate mili- tary judge is a member, based on military ne- cessity and such reassignment is consistent with service rotation regulations (to the ex- tent such regulations are applicable). (D) The appellate military judge is with- drawn by the Secretary of Defense, or the des- ignee of the Secretary, in consultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, for good cause consistent with ap- plicable procedures under chapter 47 of this title (the Uniform Code of Military Justice). (c) PROHIBITION ON CONSIDERATION OF ACTIONS ON COMMISSION IN EVALUATION OF FITNESS.—In the preparation of an effectiveness, fitness, or efficiency report or any other report or docu- ment used in whole or in part for the purpose of determining whether a commissioned officer of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of any such officer or whether any such officer should be retained on active duty, no per- son may— (1) consider or evaluate the performance of duty of any member of a military commission under this chapter; or (2) give a less favorable rating or evaluation to any commissioned officer because of the zeal with which such officer, in acting as coun- sel, represented any accused before a military commission under this chapter. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2583; amended Pub. L. 112–81, div. A, title X, § 1034(b), Dec. 31, 2011, 125 Stat. 1573.) Editorial Notes PRIOR PROVISIONS A prior section 949b, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2609, related to unlawfully influ- encing action of military commission, prior to the gen- eral amendment of this chapter by Pub. L. 111–84. AMENDMENTS 2011—Subsec. (b)(1)(A). Pub. L. 112–81, § 1034(b)(1), sub- stituted ‘‘a judge on’’ for ‘‘a military appellate judge or other duly appointed judge under this chapter on’’. Subsec. (b)(2). Pub. L. 112–81, § 1034(b)(2), substituted ‘‘a judge on’’ for ‘‘a military appellate judge on’’. Subsec. (b)(3)(B). Pub. L. 112–81, § 1034(b)(3), sub- stituted ‘‘a judge on’’ for ‘‘an appellate military judge or a duly appointed appellate judge on’’.