Page 390 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 10093

(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 mle 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) Spec{ficiiy. 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
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 mle. 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 subdivision (d). When the accused testifies under subdivision (d), 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 of1icial 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 mle, 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 Ident(fication. 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.
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