Pretrial confinement

(a) In general. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges. (b) Who may be confined. Any person who is subject to trial by court-martial may be confined if the requirements of this rule are met. (c) Who may order confinement. See R.C.M. 304(b). (d) When a person may be confined. No person may be ordered into pretrial confinement except for probable cause. Probable cause to order pretrial confinement exists when there is a reasonable belief that: (1) An offense triable by court-martial has been committed; (2) The person confined committed it; and (3) Confinement is required by the circumstances. (e) Advice to the accused upon confinement. Each person confined shall be promptly informed of: (1) The nature of the offenses for which held; (2) The right to remain silent and that any statement made by the person may be used against the person; (3) The right to retain civilian counsel at no expense to the United States, and the right to request assignment of military counsel; and (4) The procedures by which pretrial confinement will be reviewed. (f) Military counsel. If requested by the confinee and such request is made known to military authorities, military counsel shall be provided to the confinee before the initial review under subsection (i) of this rule or within 72 hours of such a request being first communicated to military authorities, whichever occurs first. Counsel may be assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred. If assignment is made for this limited purpose, the confinee shall be so informed. Unless otherwise provided by regulations of the Secretary concerned, a confinee does not have a right under this rule to have military counsel of the confinee’s own selection. (g) Who may direct release from confinement. Any commander of a confinee, an officer appointed under regulations of the Secretary concerned to conduct the review under subsection (i) or (j) of this rule, or, once charges have been referred, a military judge detailed to the court-martial to which the charges against the II-13 accused have been referred, may direct release from pretrial confinement. For purposes of this subsection, “any commander” includes the immediate or higher commander of the confinee and the commander of the installation on which the confinement facility is located. (h) Notification and action by commander. (1) Report. Unless the commander of the confinee ordered the pretrial confinement, the commissioned, warrant, noncommissioned, or petty officer into whose charge the confinee was committed shall, within 24 hours after that commitment, cause a report to be made to the commander that shall contain the name of the confinee, the offenses charged against the confinee, and the name of the person who ordered or authorized confinement. (2) Action by commander. is applicable, (A) Decision. Not later than 72 hours after the commander’s ordering of a confinee into pretrial confinement or, after receipt of a report that a member of the commander’s unit or organization has been confined, whichever situation the commander shall decide whether pretrial confinement will continue. A commander’s compliance with this subparagraph may also satisfy the 48-hour probable cause determination of paragraph (i)(1) of this rule, provided the commander is a neutral and detached officer and acts within 48 hours of the imposition of in confinement under military control. Nothing subsection (d), paragraph (i)(1), or this subparagraph prevents a neutral and detached commander from completing the 48-hour probable cause determination and the 72-hour commander’s decision immediately after an accused is ordered into pretrial confinement. for (B) Requirements confinement. The commander shall direct the confinee’s release from pretrial confinement unless the commander believes upon probable cause, that is, upon reasonable grounds, that: (i) An offense triable by a court-martial has been committed; (ii) The confinee committed it; (iii) Confinement is necessary because it is foreseeable that: (a) The confinee will not appear at trial, pretrial hearing, or preliminary hearing, or (b) The confinee will engage in serious criminal misconduct; and (iv) Less severe forms of restraint are II-14 inadequate. Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used in this rule, “national security” means the national defense and foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. (C) 72-hour memorandum. If continued pretrial confinement is approved, the commander shall prepare a written memorandum that states the reasons for the conclusion that the requirements for confinement in subparagraph (h)(2)(B) of this rule have been met. This include hearsay and may memorandum may incorporate by reference other documents, such as witness statements, investigative reports, or official records. This memorandum shall be forwarded to the 7-day reviewing officer under paragraph (i)(2) of this rule. If such a memorandum was prepared by the commander before ordering confinement, a second memorandum need not be prepared; however, additional the memorandum at any time. (i) Procedures for review of pretrial confinement. information may be added to (1) 48-hour p r o b a b le cause determination. Review of the adequacy of probable cause to continue pretrial confinement shall be made by a neutral and detached officer within 48 hours of imposition of confinement under military control. If the confinee is apprehended by civilian authorities and remains in civilian custody at the request of military authorities, reasonable efforts will be made to bring the confinee under military control in a timely fashion. (2) 7-day review of pretrial confinement. Within 7 days of the imposition of confinement, a neutral and detached officer appointed in accordance with regulations prescribed by the Secretary concerned shall review the probable cause determination and necessity for continued pretrial confinement. In calculating the number of days of confinement for purposes of this rule, the initial date of confinement under military control shall count as one day and the date of the review shall also count as one day (A) Nature of the 7-day review. shall a by include submitted review of the (i) Matters considered. The review under this the subsection confinee’s memorandum commander under subparagraph (h)(2)(C) of this rule. Additional written matters may be considered, including any submitted by the confinee. The confinee and the confinee’s counsel, if any, shall be allowed to appear before the 7-day reviewing officer and make if practicable. A representative of the command may also appear before the reviewing officer to make a statement. statement, a (ii) Rules of evidence. Except for Mil. R. Evid., Section V (Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of Evidence shall not apply to the matters considered. (iii) Standard of proof. The requirements for confinement under subparagraph (h)(2)(B) of this rule must be proved by a preponderance of the evidence. (iv) Victim’s right to be reasonably heard. A victim of an alleged offense committed by the confinee has the right to reasonable, accurate, and timely notice of the 7-day review; the right to confer with the representative of the command and counsel for the government, if any; and the right to be reasonably heard during the review. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel and the right to be reasonably protected from the confinee during the 7- day review. The victim of an alleged offense shall be notified of in accordance with regulations of the Secretary concerned. rights these (B) Extension of time limit. The 7-day reviewing officer may, for good cause, extend the time limit for completion of the review to 10 days after the imposition of pretrial confinement. (C) Action by 7-day reviewing officer. Upon completion of review, the reviewing officer shall approve continued confinement or order immediate release. If the reviewing officer orders immediate release, a victim of an alleged offense committed by the confinee has the right to reasonable, accurate, and timely notice of the release, unless such notice may endanger the safety of any person. (D) Memorandum. The 7-day reviewing officer’s conclusions, including the factual findings on which they are based, shall be set forth in a written memorandum. The memorandum shall also state whether the victim was notified of the review, was given the opportunity to confer with the representative of the command or counsel for the government, and was given a reasonable opportunity to be heard. A copy of the memorandum and all documents considered by the 7-day reviewing officer shall be maintained in accordance with the Secretary concerned and provided to the accused or the Government on request. regulations prescribed by (E) Reconsideration of approval of continued confinement. The 7-day reviewing officer shall upon request, and after notice to the parties, reconsider the decision to confine the confinee based upon any significant information not previously considered. (j) Review by military judge. Once the charges for which the accused has been confined are referred to trial, or in a pre-referral proceeding conducted in accordance with R.C.M. 309, the military judge shall review the propriety of pretrial confinement upon motion for appropriate relief. (1) Release. The military judge shall order release from pretrial confinement only if: (A) The 7-day reviewing officer’s decision was an abuse of discretion, and there is not sufficient information presented to the military judge justifying continuation under of subparagraph (h)(2)(B) of this rule; confinement pretrial (B) Information not presented to the 7-day reviewing officer establishes that the confinee should be released under subparagraph (h)(2)(B) of this rule; or (C) The provisions of paragraph (i)(1) or (2) of this rule have not been complied with and information presented to the military judge does not establish sufficient grounds for continued confinement under subparagraph (h)(2)(B) of this rule. (2) Credit. Upon sentencing, the military judge shall order administrative credit under subsection (k) of this rule for any pretrial confinement served as a result of an abuse of discretion or failure to comply with the provisions of subsections (f), (h), or (i) of this rule. (k) Remedy. The remedy for noncompliance with subsections (f), (h), (i), or (j) of this rule shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance. Such credit shall be computed at the rate of 1 day credit for each day of confinement served as a result of such noncompliance. The military judge may order additional credit for each day of pretrial II-15 confinement that involves an abuse of discretion or unusually harsh circumstances. This credit is to be applied in addition to any other credit the accused may be entitled as a result of pretrial confinement served. This credit shall be applied first against any confinement adjudged. If no confinement is adjudged, or if the confinement adjudged is insufficient to offset all the credit to which the accused is entitled, the credit labor without shall be applied against hard confinement using the conversion formula under R.C.M. 1003(b)(6), restriction using the conversion formula under R.C.M. 1003(b)(5), fine, and forfeiture of pay, in that order. For purposes of this subsection, 1 day of confinement shall be equal to 1 day of total forfeiture or a like amount of fine. The credit shall not be applied against any other form of punishment. (l) Confinement after release. No person whose release from pretrial confinement has been directed by a person authorized in subsection (g) of this rule may be confined again before completion of trial except upon discovery, after the order of release, of evidence or of misconduct which, either alone or in conjunction with all other available evidence, justifies confinement. (m) Exceptions. (1) Operational necessity. The Secretary of Defense may suspend application of paragraphs (e)(3), (e)(4), subsection (f), subparagraphs (h)(2)(A) and (C), and subsection (i) of this rule to specific units or in specified areas when operational requirements of such units or in such areas would make application of such provisions impracticable. (2) At sea. Paragraphs (e)(3) and (e)(4), subsection (f), subparagraph (h)(2)(C), and subsection (i) of this rule shall not apply in the case of a person on board a vessel at sea. In such situations, confinement on board the vessel at sea may continue only until the person can be transferred to a confinement facility ashore. Such the earliest transfer shall be accomplished at opportunity permitted by the operational requirements and mission of the vessel. Upon such transfer the memorandum required by subparagraph (h)(2)(C) of this rule shall be transmitted to the reviewing officer under subsection (i) of this rule and shall include an explanation of any delay in the transfer. (n) Notice to victim of escaped confinee. A victim of an alleged offense committed by the confinee for which the confinee has been placed in pretrial confinement has the right to reasonable, accurate, and timely notice of the escape of the prisoner, unless such notice may endanger the safety of any person. II-16