EO 13387 Title 3--The President "the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further," (p) R.C.M. 1003(b)(2) is amended by replacing the word "foreign" with the word "hardship." (q) R.C.M. 1004(b) is amended by inserting the following after "(\177) No- tice." and before the word "Before": "(A) Referral. The convening authority shall indicate that the case is to be tried as a capital case by including a special instruction in the referral block of the charge sheet. Failure to include this special instruction at the time of the referral shall not bar the convening authority from later adding the required special instruction, provided: (i) that the convening authority has otherwise complied with the notice requirement of subsection (B); and (ii) that if the accused demonstrates specific preiudice from such failure to include the special instruction, a continuance or a recess is an adequate remedy. (B) Arraignment." (r) Insert the following new R.C.M. \17703A after R.C.M. \177103: "Rule \17703A. Sealed exhibits and proceedings. (a) In general. If the record of trial contains exhibits, proceedings, or other matter ordered sealed by the military iudge, the trial counsel shall cause such materials to be sealed so as to prevent indiscriminate viewing or disclosure. Trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the military iudge, and inserted at the appropriate place in the original record of trial. Copies of the record shall contain appropriate annotations that matters were sealed by order of the military iudge and have been in- serted in the original record of trial. This Rule shall be implemented in a manner consistent with Executive Order \1772958, as amended, concerning classified national security information. (b) Examination of sea]ed exhibits and proceedings. Except as provided in the following subsections to this rule, sealed exhibits may not be exam- ined. (\177) Examination of sealed matters. For the purpose of this rule, "exam- ination" includes reading, viewing, photocopying, photographing, dis- closing, or manipulating the documents in any way. (2) Prior to authentication. Prior to authentication of the record by the military iudge, sealed materials may not be examined in the absence of an order from the military iudge based on good cause shown. (3) Authentication through action. After authentication and prior to dis- position of the record of trial pursuant to Rule for Courts-Martial l\177, sealed materials may not be examined in the absence of an order from the military iudge upon a showing of good cause at a post-trial Article 39a ses- sion directed by the Convening Authority. (4) Heviewing and appellate authorities. 180
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