Chapter XI · Post-Trial Procedure
R.C.M. 1113. Sealed exhibits, proceedings, and other materials
2024 Manual for Courts-Martial, United States
See all changes(a) In general. If the report of preliminary hearing or record of trial contains exhibits, proceedings, or other materials ordered sealed by the preliminary hearing officer or military judge, counsel for the Government, the court reporter, or trial counsel shall cause such materials to be sealed so as to prevent unauthorized examination or disclosure. Counsel for the Government, the court reporter, or trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the preliminary hearing officer or military judge, and inserted at the appropriate place in the record of trial. Copies of the report of preliminary hearing or record of trial shall contain appropriate annotations that materials were sealed by order of the preliminary hearing officer or military judge and have been inserted in the report of preliminary hearing or record of trial. This rule shall be implemented in a manner consistent with Executive Order 13526, concerning classified national security information.
Discussion
Upon request or otherwise for good cause, a military judge may seal matters at his or her discretion. The terms “examination” and “disclosure” are defined in R.C.M. 1113(b)(4) and (5).
(b) Examination and disclosure of sealed materials. Except as provided in this rule, sealed materials may not be examined or disclosed.
Discussion
The terms of the sealing order may provide parameters for examination by or disclosure to those persons or entities whose interests are being protected.
(1) Prior to referral. Prior to referral of charges, the following individuals may examine and disclose sealed materials only if necessary for proper fulfillment of their responsibilities under the UCMJ, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional conduct: the judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff judge advocate to the general court-martial convening authority; a military judge detailed to an Article 30a proceeding; the general court-martial convening authority; and special trial counsel for the purposes of making a determination on referral.
(2) Referral through certification. After referral of charges and prior to certification of the record under R.C.M. 1112(c), sealed materials may not be examined or disclosed in the absence of an order from the military judge based upon good cause.
Discussion
A convening authority who has granted clemency based upon review of sealed materials in the record of trial is not permitted to disclose the contents of the sealed materials when providing a written explanation of the reason for such action, as directed under R.C.M. 1109 or 1110.
(3) Reviewing and appellate authorities; appellate counsel.
(A) Examination by reviewing and appellate authorities. Reviewing and appellate authorities may examine sealed matters when those authorities determine that examination is reasonably necessary to a proper fulfillment of their responsibilities under the UCMJ, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional conduct.
(B) Examination by appellate counsel. Appellate counsel may examine sealed materials subject to the following procedures.
(i) Sealed materials released to trial counsel or defense counsel. Materials presented or reviewed at trial and sealed, as well as materials reviewed in camera , released to trial counsel or defense counsel, and sealed, may be examined by appellate counsel upon a colorable showing to the reviewing or appellate authority that examination is reasonably necessary to a proper fulfillment of the appellate counsel’s responsibilities under the UCMJ, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional conduct.
(ii) Sealed materials reviewed in camera but not released to trial counsel or defense counsel. Materials reviewed in camera by a military judge, not released to trial counsel or defense counsel, and sealed may be examined by reviewing or appellate authorities. After examination of said materials, the reviewing or appellate authority may permit examination by appellate counsel for good cause.
Discussion
For disclosure procedures, see R.C.M. 1113(b)(3)(C).
(C) Disclosure. Appellate counsel shall not disclose sealed materials in the absence of:
(i) prior authorization of the Judge Advocate General in the case of review under R.C.M. 1201 or 1210; or
(ii) prior authorization of the appellate court before which a case is pending review under R.C.M. 1203 or 1204; or
(iii) prior authorization of the Judge Advocate General for a case eligible for review under R.C.M. 1203 or 1204.
Discussion
In general, the Judge Advocate General or an appellate court should authorize disclosure of sealed material when such disclosure is necessary for review. Authorizations may place conditions on disclosure.
(D) For purposes of this rule, reviewing and appellate authorities are limited to:
(i) Judge advocates reviewing records pursuant to R.C.M. 1307;
(ii) Officers and attorneys in the office of the Judge Advocate General reviewing records pursuant to R.C.M. 1201 and 1210;
(iii) Officers and attorneys designated by the Judge Advocate General;
(iv) Appellate judges of the Courts of Criminal Appeals and their professional staffs;
(v) The judges of the United States Court of Appeals for the Armed Forces and their professional staffs;
(vi) The Justices of the United States Supreme Court and their professional staffs; and
(vii) Any other court of competent jurisdiction.
(4) Examination of sealed materials. For purposes of this rule, “examination” includes reading, inspecting, and viewing.
(5) Disclosure of sealed materials. For purposes of this rule, “disclosure” includes photocopying, photographing, disseminating, releasing, manipulating, or communicating the contents of sealed materials in any way.
(6) Notwithstanding any other provision of this rule, in those cases in which review is sought or pending before the United States Supreme Court, authorization to disclose sealed materials or information shall be obtained under that Court’s rules of practice and procedure.