Page 335 - Trump Executive Orders 2017-2021

10038 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

(A) Generally. The hearing shall begin with the hearing officer informing the probationer
of the probationer's rights. The Government will then present evidence. Upon the conclusion of
the Government's presentation of evidence, the probationer may present evidence. The
probationer shall have full opportunity to present any matters in defense, extenuation, or
mitigation. Both the Government and probationer shall be afforded an opportunity to cross-
examine adverse witnesses. The hearing officer may also question witnesses called by the
parties.
(B) Rules of evidence. The Military Rules of Evidence applicable to vacation proceedings
are the same as those set forth in subparagraph (c)( 4)(B) of this rule.
(C) Production ofH'itnesses and other evidence. The procedure for the production of
witnesses and other evidence shall follow that prescribed in R.C.M. 405(h), except that R.C.M.
405(h)(3)(B) shall not apply. The hearing officer shall only consider testimony and other
evidence that is relevant to the limited purpose of the hearing.
(D) Presentation qf testimony. Witness testimony may be provided in person, by video
teleconference, by telephone, or by similar means ofremote testimony. All testimony shall be
taken under oath, except that the probationer may make an unsworn statement.
(E) Other evidence. If relevant to the limited purpose of the hearing, and not cumulative, a
hearing officer may consider other evidence, in addition to or in lieu of witness testimony,
including statements, tangible evidence, or reproductions thereof, offered by either side, that the
hearing officer determines is reliable. This other evidence need not be sworn.
(F) Protective order for release cifprivileged information. If the Government agrees to
disclose to the probationer information to which the protections afforded by Mil. R. Evid. 505 or
506 may apply, the convening authority, or other person designated by regulation ofthe
Secretary of the service concerned, may enter an appropriate protective order, in writing, to
guard against the compromise of information disclosed to the probationer. The terms of any such
protective order may include prohibiting the disclosure of the information except as authorized
by the authority.
(G) Presence of probationer. The taking of evidence shall not be prevented and the
probationer shall be considered to have waived the right to be present whenever the probationer:
(i) After being notified of the time and place of the proceeding is voluntarily absent; or
(ii) After being warned by the hearing officer that disruptive conduct will cause removal
from the proceeding, persists in conduct that is such as to justify exclusion from the proceeding.
(H) Objections. Any objection alleging failure to comply with these rules shall be made to
the convening authority via the hearing officer. The hearing officer shall include a record of all
objections in the written recommendations to the convening authority.
(I) Access by spectators. The procedures for access by spectators shall follow those
prescribed in R.C.M. 4050)(3).
(J) ·victims' rights. Any victim of the underlying offense for which the probationer
received the suspended sentence, or any victim of the alleged offense that is the subject of the
vacation hearing, has the right to reasonable, accurate, and timely notice of the vacation hearing.
(4) Record and recommendation. The officer conducting the hearing shall make a
summarized record of the hearing. If the hearing is not personally conducted by the officer
having the authority to take action under subsection (e) of this rule, the officer who conducted
the hearing shall forward the record and that officer's written recommendation concerning
vacation to such authority. The record shall include the recommendation, the evidence relied
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upon, and the rationale supporting the recommendation.

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