Military Rule of Evidence 505 – MRE 505
Military Rule of Evidence 505 – MRE 505
This rule reflects the privileges and requirements of CIPA and the Common Law and integrates them into Court martial procedures. It allows a military department or a government agency to find that information is properly classified and that disclosure would be harmful to national security. There is a refutable presumption that a witness or a lawyer has the authority to claim that privilege during the proceedings. Trial counsel, however, should only claim that privilege at the behest of the relevant agency.
Military Rule of Evidence 505 – MRE 505
(a) General rule of privilege. Classified information is privileged from disclosure if disclosure would be detrimental to the national security. As with other rules of privilege this rule applies to all stages of the proceedings.
(b) Definitions. As used in this rule:
(1) Classified information. “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 dis
closure for reasons of national security, and any restricted data, as defined in 42 U.S.C. § 2014(y).
(2) National security. “National security” means the national defense and foreign relations of the United States.
(c) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department or government agency concerned based on a finding that the information is properly classified and that disclosure would be detrimental to the national security. A person who may claim the privilege may authorize a witness or trial counsel to claim the privilege on his or her behalf. The authority of the witness or trial counsel to do so is presumed in the absence of evidence to the contrary.
(d) Action prior to referral of charges. Prior to referral of charges, the convening authority shall respond in writing to a request by the accused for classified information if the privilege in this rule is claimed for such information. The convening authority may:
(1) Delete specified items of classified information from documents made available to the accused;
(2) Substitute a portion or summary of the information for such classified documents;
(3) Substitute a statement admitting relevant facts that the classified information would tend to prove;
(4) Provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or
(5) Withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage to the national security.
Any objection by the accused to withholding of information or to the conditions of disclosure shall be raised through a motion for appropriate relief at a pretrial session.
(e) Pretrial session. At any time after referral of charges and prior to arraignment, any party may move for a session under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such motion or sua sponte, the military judge promptly shall hold a session under Article 39(a) to establish the timing of requests for discovery, the provision of notice under subdivision (h), and the initiation of the procedure under subdivision (i). In addition, the military judge may consider any other matters that relate to classified information or that may promote a fair and expeditious trial.
(f) Action after referral of charges. 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 shall be reported to the convening authority. The convening authority may:
(1) institute action to obtain the classified information for the use by the military judge in making a determination under subdivision (i);
(2) dismiss the charges;
(3) dismiss the charges or specifications or both to which the information relates; or
(4) take such other action as may be required in the interests of justice.
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 shall dismiss the charges or specifications or both to which the classified information relates.
(g) Disclosure of classified information to the accused.
(1) Protective order. If the Government agrees to disclose classified information to the accused, the military judge, at the request of the Government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused. The terms of any such protective order may include provisions:
(A) Prohibiting the disclosure of the information except as authorized by the military judge;
(B) Requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;
(C) Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;
(D) All persons requiring security clearances shall cooperate with investigatory personnel in any investigations which are necessary to obtain a security clearance.
(E) 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;
(F) Regulating the making and handling of notes taken from material containing classified information; or
(G) Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.
(2) Limited disclosure. The military judge, upon motion of the Government, shall authorize (A) the deletion of specified items of classified information from documents to be made available to the defendant, (B) the substitution of a portion or summary of the information for such classified documents, or (C) the substitution of a statement admitting relevant facts that the classified information 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. The Government’s motion and any materials submitted in support thereof shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
(3) Disclosure at trial of certain statements previously made by a witness.
(A) Scope. After a witness called by the Government has testified on direct examination, the military judge, on motion of the accused, may order production of statements in the possession of the United States under R.C.M. 914. This provision does not preclude discovery or assertion of a privilege otherwise authorized under these rules or this Manual.
(B) Closed session. If the privilege in this rule is invoked during consideration of a motion under R.C.M. 914, the Government may deliver such statement for the inspection only by the military judge in camera and may provide the military judge with an affidavit identifying the portions of the statement that are classified and the basis for the classification assigned. If the military judge finds that disclosure of any portion of the statement identified by the Government as classified could reasonably be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute, or regulation and that such portion of the statement is consistent with the witness’ testimony, the military judge shall excise the portion from the statement. With such material excised, the military judge shall then direct delivery of such statement to the accused for use by the accused. If the military judge finds that such portion of the statement is inconsistent with the witness’ testimony, the Government may move for a proceeding under subdivision (i).
(4) Record of trial. If, under this subdivision, 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 Government’s motion and any materials submitted in support thereof shall be sealed and attached to the record of trial as an appellate exhibit. Such material shall be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.
(h) Notice of the accused’s intention to disclose classified information.
(1) Notice by the accused. If the accused reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with a court-martial proceeding, the accused shall notify the trial counsel in writing of such intention and file a copy of such notice with the military judge. Such notice shall be given within the time specified by the military judge under subdivision (e) or, if no time has been specified, prior to arraignment of the accused.
(2) Continuing duty to notify. Whenever the accused learns of classified information not covered by a notice under (1) that the accused reasonably expects to disclose at any such proceeding, the accused shall notify the trial counsel and the military judge in writing as soon as possible thereafter.
(3) Content of notice. The notice required by this subdivision shall include a brief description of the classified information. The description, to be sufficient, must be more than a mere general statement of the areas about which evidence may be introduced. The accused must state, with particularity, which items of classified information he reasonably expects will be revealed by his defense.
(4) Prohibition against disclosure. The accused may not disclose any information known or believed to be classified until notice has been given under this subdivision and until the Government has been afforded a reasonable opportunity to seek a determination under subdivision (i).
(5) Failure to comply. If the accused fails to comply with the requirements of this subdivision, the military judge may preclude disclosure of any classified information not made the subject of notification and may prohibit the examination by the accused of any witness with respect to any such information.
(i) In camera proceedings for cases involving classified information.
(1) Definition. For purposes of this subdivision, an “in camera proceeding” is a session under Article 39(a) from which the public is excluded.
(2) Motion for in camera proceeding. Within the time specified by the military judge for the filing of a motion under this rule, the Government may move for an in camera proceeding concerning the use at any proceeding of any classified information. Thereafter, either prior to or during trial, the military judge for good cause shown or otherwise upon a claim of privilege under this rule may grant the Government leave to move for an in camera proceeding concerning the use of additional classified information.
(3) Demonstration of national security nature of the information. In order to obtain an in camera proceeding under this rule, the Government shall submit the classified information and an affidavit ex parte for examination by the military judge only. The affidavit shall demonstrate that disclosure of the information reasonably could be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute, or regulation.
(A) Procedure. Upon finding that the Government has met the standard set forth in subdivision (i)(3) with respect to some or all of the classified information at issue, the military judge shall conduct an in camera proceeding. Prior to the in camera proceeding, the Government shall provide the accused with notice of the information that will be at issue. This notice shall identify the classified information that will be at issue whenever that information previously has been made available to the accused in connection with proceedings in the same case. The Government may describe the information by generic category, in such form as the military judge may approve, rather than identifying the classified information when the Government has not previously made the information available to the accused in connection with pretrial proceedings. Following briefing and argument by the parties in the in camera proceeding the military judge shall determine whether the information may be disclosed at the court-martial proceeding. Where the Government’s motion under this subdivision is filed prior to the proceeding at which disclosure is sought, the military judge shall rule prior to the commencement of the relevant proceeding.
(B) Standard. 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 pre-sentencing proceedings, relevant and material classified information pertaining to the appropriateness of, or the appropriate degree of, punishment shall be admitted only if no unclassified version of such information is available.
(C) Ruling. Unless the military judge makes a written determination that the information meets the standard set forth in (B), the information may not be disclosed or otherwise elicited at a court-martial proceeding. The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit. The accused may seek reconsideration of the determination prior to or during trial.
(D) Alternatives to full disclosure. If the military judge makes a determination under this subdivision that would permit disclosure of the information or if the Government elects not to contest the relevance, necessity, and admissibility of any classified information, the Government may proffer a statement admitting for purposes of the proceeding any relevant facts such information would tend to prove or may submit a portion of summary to be used in lieu of the information. The military judge shall order that such statement, portion, or summary by used by the accused in place of the classified information unless the military judge finds that use of the classified information itself is necessary to afford the accused a fair trial.
(E) Sanctions. If the military judge determines that alternatives to full disclosure may not be used and the Government continues to object to disclosure of the information, the military judge shall issue
any order that the interests of justice require. Such an order may include an order:
(i) striking or precluding all or part of the testimony of a witness;
(ii) declaring a mistrial;
(iii) finding against the Government on any issue as to which the evidence is relevant and material to the defense;
(iv) dismissing the charges, with or without prejudice; or
(v) dismissing the charges or specifications or both to which the information relates.
Any such order shall permit the Government to avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.
(j) Introduction of classified information.
(1) Classification status. Writings, recordings, and photographs containing classified information may be admitted into evidence without change in their classification status.
(2) Precautions by the military judge. In order to prevent unnecessary disclosure of classified information, the military judge 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.
(3) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of a writing, recording, or photograph that contains classified information without requiring introduction into evidence of the original or a duplicate.
(4) Taking of testimony. During the examination of a witness, the Government may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be relevant and necessary to the defense. Following such an objection, the military judge shall 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 the Government to provide the military judge with a proffer or the witness’ 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 the accused seeks to elicit.
(5) Closed session. The military judge may exclude the public during that portion of the presentation of evidence that discloses classified information.
(6) Record of trial. The record of trial with respect to any classified matter will be prepared under R.C.M. 1103(h) and 1104(b)(1)(D).
(k) Security procedures to safeguard against compromise of classified information disclosed to courts-martial. The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities.