Page 270 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 9973

these rules, after adjournment and before entry of the judgment in the record. All such sessions
are a part of the trial and shall be conducted in the presence of the accused, defense counsel,
and trial counsel, in accordance with R.C.M. 804 and 805, and shall be made a part of the
record.

Rule 804. Presence of the accused at trial proceedings
(a) Presence required. The accused shall be present at the arraignment, the time of the plea,
every stage of the trial including sessions conducted under A1ticle 39(a), voir dire and challenges
of members, the return of the findings, presentencing proceedings, and post-trial sessions, if any,
except as otherwise provided by this rule. Attendance at these proceedings shall constitute the
accused's appointed place of duty and, with respect to the accused's travel allowances, none of
these proceedings shall constitute disciplinary action. This does not in any way limit authority to
implement restriction, up to and including confinement, as necessary in accordance with R.C.M.
304 or R.C.M. 305.
(b) Presence by remote means. The military judge may order the use of audiovisual technology,
such as video teleconferencing technology, between the parties and the military judge for
purposes of Article 39(a) sessions. Use of such audiovisual technology will satisfy the
'presence' requirement of the accused only when the accused has a defense counsel physically
present at his location or when the accused consents to presence by remote means with the
opportunity for confidential consultation with defense counsel during the proceeding. Such
technology may include two or more remote sites as long as all parties can see and hear each
other. Defense counsel must be physically present at the accused's location during an inquiry
prior to the acceptance of a plea under R.C.M. 910(d), (e) and (t). Presence by remote means is
not authorized during presentencing proceedings under R. C.M. 1001.
(c) Continued presence not required. The further progress of the trial to and including the return
of the findings and, if necessary, determination of a sentence shall not be prevented and the
accused shall be considered to have waived the right to be present whenever an accused, initially
present
(1) Is voluntarily absent after arraignment (whether or not infom1ed by the military judge of
the obligation to remain during the trial); or
(2) After being warned by the military judge that disruptive conduct will cause the accused to
be removed from the courtroom, persists in conduct which is such as to justify exclusion from
the comtroom.
(d) Voluntary absence jor limited pwpose of child testimony.
(1) Election by accused. Following a determination by the military judge that remote live
testimony of a child is appropriate pursuant to Mil. R. Evid. 61l(d)(3), the accused may elect to
voluntarily absent himself from the courtroom in order to preclude the use of procedures
described in R.C.M. 914A
(2) Procedure. The accused's absence will be conditional upon his being able to view the
witness' testimony from a remote location. Normally, transmission of the testimony will include
a system that will transmit the accused's image and voice into the com1room from a remote
location as well as transmission of the child's testimony from the courtroom to the accused's
location. A one-way transmission may be used if deemed necessary by the military judge. The
accused will also be provided private, contemporaneous communication with his counsel. The
procedures described herein shall be employed unless the accused has made a knowing and
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affirmative waiver of these procedures.