2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 806(b)(1)
courtroom, and, under unusual circumstances, a session may be
closed.
Exclusion of specific persons, if unreasonable under the circumstances,
may violate the accused’s right to a public trial, even
though other spectators remain. Whenever specific persons or
some members of the public are excluded, exclusion must be
limited in time and scope to the minimum extent necessary to
achieve the purpose for which it is ordered. Prevention of overcrowding
or noise may justify limiting access to the courtroom.
Disruptive or distracting appearance or conduct may justify excluding
specific persons. Specific persons may be excluded when
necessary to protect witnesses from harm or intimidation. Access
may be reduced when no other means is available to relieve a
witness’ inability to testify due to embarrassment or extreme
n e r v o u s n e s s . W i t n e s s e s w i l l o r d i n a r i l y b e e x c l u d e d f r o m t h e
courtroom so that they cannot hear the testimony of other witnesses.
See Mil. R. Evid. 615.
(2) Closure. Courts-martial shall be open to the
public unless (1) there is a substantial probability
that an overriding interest will be prejudiced if the
proceedings remain open; (2) closure is no broader
than necessary to protect the overriding interest; (3)
reasonable alternatives to closure were considered
and found inadequate; and (4) the military judge
makes case-specific findings on the record justifying
closure.
Discussion
The military judge is responsible for protecting both the accused’s
right to, and the public’s interest in, a public trial. A court-martial
session is “closed” when no member of the public is permitted to
attend. A court-martial is not “closed” merely because the exclusion
of certain individuals results in there being no spectators
present, as long as the exclusion is not so broad as to effectively
bar everyone who might attend the sessions and is put into place
for a proper purpose.
A session may be closed over the objection of the accused or
the public upon meeting the constitutional standard set forth in
this Rule. See also Mil. R. Evid. 412(c), 505(i), and 513(e)(2).
The accused may waive his right to a public trial. The fact
that the prosecution and defense jointly seek to have a session
closed does not, however, automatically justify closure, for the
public has a right in attending courts-martial. Opening trials to
public scrutiny reduces the chance of arbitrary and capricious
decisions and enhances public confidence in the court-martial
process.
The most likely reason for a defense request to close courtmartial
proceedings is to minimize the potentially adverse effect
of publicity on the trial. For example, a pretrial Article 39(a)
hearing at which the admissibility of a confession will be litigated
may, under some circumstances, be closed, in accordance with
this Rule, in order to prevent disclosure to the public (and hence
to potential members) of the very evidence that may be excluded.
When such publicity may be a problem, a session should be
closed only as a last resort.
There are alternative means of protecting the proceedings
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from harmful effects of publicity, including a thorough voir dire
(see R.C.M. 912), and, if necessary, a continuance to allow the
harmful effects of publicity to dissipate (see R.C.M. 906(b)(1)).
Alternatives that may occasionally be appropriate and are usually
preferable to closing a session include: directing members not to
read, listen to, or watch any accounts concerning the case; issuing
a protective order (see R.C.M. 806(d)); selecting members from
recent arrivals in the command, or from outside the immediate
a r e a ( s e e R . C . M . 5 0 3 ( a ) ( 3 ) ) ; c h a n g i n g t h e p l a c e o f t r i a l ( s e e
R.C.M.906(b)(11)); or sequestering the members.
( c ) P h o t o g r a p h y a n d b r o a d c a s t i n g p r o h i b i t e d .
V i d e o a n d a u d i o r e c o r d i n g a n d t h e t a k i n g o f
photographs—except for the purpose of preparing
t h e r e c o r d o f t r i a l — i n t h e c o u r t r o o m d u r i n g t h e
proceedings and radio or television broadcasting of
proceedings from the courtroom shall not be permitted.
However, the military judge may, as a matter of
d i s c r e t i o n p e r m i t c o n t e m p o r a n e o u s c l o s e d - c i r c u i t
video or audio transmission to permit viewing or
hearing by an accused removed under R.C.M. 804 or
by spectators when courtroom facilities are inadeq
u a t e t o a c c o m m o d a t e a r e a s o n a b l e n u m b e r o f
spectators.
(d) Protective orders. The military judge may, upon
request of any party or sua sponte, issue an appropriate
protective order, in writing, to prevent parties
and witnesses from making extrajudicial statements
that present a substantial likelihood of material prejudice
to a fair trial by impartial members. For purposes
of this subsection, “military judge” does not
include the president of a special court-martial without
a military judge.
Discussion
A protective order may proscribe extrajudicial statements by
counsel, parties, and witnesses that might divulge prejudicial matter
not of public record in the case. Other appropriate matters may
also be addressed by such a protective order. Before issuing a
protective order, the military judge must consider whether other
available remedies would effectively mitigate the adverse effects
that any publicity might create, and consider such an order’s
likely effectiveness in ensuring an impartial court-martial panel.
A military judge should not issue a protective order without first
providing notice to the parties and an opportunity to be heard.
The military judge must state on the record the reasons for issuing
the protective order. If the reasons for issuing the order
change, the military judge may reconsider the continued necessity
for a protective order.