Page 405 - Trump Executive Orders 2017-2021

10108 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

(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.
(B) The government may avoid the sanction for nondisclosure by permitting the accused
to disclose the information at the pertinent court-martial proceeding.
(5) Disclosure~~ Rebuttal Information. Whenever the military judge determines that
classified information may be disclosed in connection with a trial or pretrial proceeding, the
military judge must, unless the interests of fairness do not so require, order the prosecution to
provide the accused with the information it expects to use to rebut the classified information.
(A) Continuing Duty. The military judge may place the prosecution under a continuing
duty to disclose such rebuttal information.
(B) Sanction.fbr Failure to Comply. If the prosecution fails to comply with its obligation
under subdivision G), the military judge:
(i) may exclude any evidence not made the subject of a required disclosure; and
(ii) may prohibit the examination by the prosecution of any witness with respect
to such information.
( 6) Disclosure at Trial of Previous Statements by a Witness.
(A) Motion for Production (?(Statements in Posse.~sion (?f the Prosecution. After a
witness called by trial counsel has testified on direct examination, the military judge, on motion
of the accused, may order production of statements of the witness in the possession of the
prosecution that relate to the subject matter as to which the witness has testified. This paragraph
does not preclude discovery or assertion of a privilege otherwise authorized.
(B) invocation of Privilege by the Government. If the government invokes a privilege,
trial counsel may provide the prior statements of the witness to the military judge for in camera
review to the extent necessary to protect classified information from disclosure.
(C) Action by Military Judge. If the military judge finds that disclosure of any portion of
the statement identified by the government as classified would be detrimental to the national
security in the degree required to warrant classification under the applicable Executive Order,
statute, or regulation, that such portion of the statement is consistent with the testimony of the
witness, and that the disclosure of such portion is not necessary to afiord the accused a fair trial,
the military judge must excise that portion from the statement. If the military judge finds that
such portion of the statement is inconsistent with the testimony of the witness or that its
disclosure is necessary to afford the accused a fair trial, the military judge must, upon the request
of trial counsel, consider alternatives to disclosure in accordance with subdivision 0)(2).
(k) Introduction into Evidence of Classified il!formation.
( 1) Preservation of Classification Status. Writings, recordings, and photographs containing
classified information may be admitted into evidence in court-martial proceedings under this rule
without change in their classification status.
(A) Precautions. The military judge in a trial by comt-martial, in order to prevent
unnecessary disclosure of classified information, may order admission into evidence of only part
of a vvTiting, 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, unless the whole ought in fairness be considered.
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