difference with truly multilateral sanctions where the major countries have the same restrictions on their companies so that there really was a chance to move forward? >> translator: or with destabilizing ukraine. and in the context of sanctions with regard to iran, we've always seen that we've been

finish. [inaudible] by the courts when we went too far in their minds. we're currently working in the e.u. on such a legal framework, trying to broaden that somewhat and making it somewhat similar to what you have you have in the united states. secondly, in europe we have 28 member countries, so we have to come to unanimous decisions over anything that we plan to do. and the impact that sanctions have also repercussions on different countries are very different. if you talk, for example, about possible financial sanctions, germany is not particularly affected. if you talk about energy sanctions, germany is more effective. in europe we ought to have an interest if, actually, matters come to such a path that we need to go further that we have a mix of sanctions where each and every country suffers a little

bit. not you have one country suffering 100% and another country not suffering at all. in europe we have possibilities to do things, for example, we're working with russia, we give them credit lines through the european bank and development also through the european bank and investment. thereto with ebi we could take a moment and think whether we should not do some changes as regard to the way we -- [inaudible] that's something that perhaps the u.s. is not able to do. so there's not 100% alignment between what we do, but i i this think there has to be some kind of fair balance that sees some countries affected 100% and others not at all. but the european union is very careful in preparing work and is also looking at that aspect. [speaking german]

>> translator: on the whole trade between europe and russia is, obviously, much more closely developed than, for example, trade between the u.s. and russia. >> shall we go to this side? anyone? going once -- then we shall move back here where they seem to have people with more questions. [speaking german] >> going once. how much time do we have? ten? great. right there. >> hi, my name's -- [inaudible] i'm a russian journalist. so my question is -- [inaudible] i'm hearing from my friends who work in germany that the german business community is actually very much against sanction. they do want to trade with russia, they do want to do business, they do want to go to st. petersburg and take part in their next meeting. what do you say to your own business community about that? thanks. [speaking german]

>> translator: well, i think that's the case in germany, i don't know that's not the case in other parts of the world, people who want to do business and that's, after all, what the business community is about s ask you're not exactly longing for sanctions. in germany, some people in the business community were also against sanctions against iran, and that's true now for russia. but all of the top ceos of the german business community, all of the top associations of the german industry have said if that is the case, if you -- [inaudible] on that, we will obviously abide by your decisions, and the business community knows it although they have obviously envisaged a different relationship. if two years ago you had asked me whether we would discuss such issues today, i would have said that's not probable. one also needs predictability, and one needs certain framework with conditions for investments.

so many in the business community, i mean, i can tonot talk, obviously, reliably on their behalf, but many of them are aware that reliability of russia and also the basic acceptance of the european postwar order, namely territorial integrity, is a very important thing, and a business community in doing business can completely neglect that. they will not enthusiastically being accepting that, but the possibilities are there. let us work together with russia for the elections taking place in ukraine on the 25th of may so that ukrainians are in a position to decide the future course of their country themself. nobody is longing for sanctions. we cannot just sit back and watch basic principles that ought to be prevalent in europe

be brought into question. >> chancellor -- [speaking german] >> translator: and since the first sanctions have been, actually, suspended against iran, the business commitment was happy. it would be a strange community that is longing for sanctions. but don't be under any illusions, the german business community will abide by sanctions. >> i just wanted to add that in the united states we hear from many of our companies the same thing the caterpillar representative said; it should be balanced, and there shouldn't be people taking advantage during sanctions. but people understand that if we don't deal with this challenge in an orderly and in a broad-based way, we will deal with lot of other, more difficult challenges. and i believe, as the chancellor said, that the leaders of the american business community will rally a around this

collaborative approach to dealing with the problem in the ukraine, ask we will make sure -- and we will make sure that they do. we think we can take one or two more. someone else? right there. somebody's bringing you a microphone. very quickly. thank you. >> thank you. chancellor -- [speaking german] as you have seen yesterday, there was the report of the big review on big data commissioned by -- [inaudible] it was just released. and the report goes much beyond just the question of intelligence, of course, addressing what can we do with dictator, what are the challenges and opportunities for our economies and the wlt of our societies -- and the wealth of our societies. so i would very much like to have your views about how do you see the future in this area in

cooperative terms from both sides of the atlantic, and how can we strike the this right balance between privacy and security and economic opportunities? thank you. moreman. [speaking german] >> translator: thank you. i believe that the current debate in the u.s. has actually already taken effect. the american president issued a presidential order making a few changes, and now the question is obviously what does this mean for citizens outside of, what does this mean for people outside of the u.s. i think the internal debate here has, actually, shown first results. so i think it's a good thing that between germany and the united states of america and as the president outlined today, a good thing that a cyber dialogue will take place which in a very comprehensive way will look at

this big data management, will look at questions how do we use those data, what sort of attacks are we open to and vulnerable? and in europe we are developing a lot of these technologies no longer in europe these days. they're coming to us, and those that are behind this, the drivers of this particular line of technology, are either in asia or, more importantly, even in the u.s. so we need to find ways to be in a position to give our very own contributions to this technology. then it will be much easier for us also to set standards in how to use them. easy to make best possible use of such technologies and then in the end complain that there is not some kind of standard that governs how they're used. we need to be out there and building our own. but there is going to be a

dialogue between and germany on in this. the foreign ministers will be working on this, i personally be involved -- [inaudible] >> we're now going to take the last question. and we'll go to this side. pick it. whoever's giving away the microphone. back there, that's it. >> i'm managerially krause with -- marjorie krause with apco worldwide, and thank you very much for your remarks. i was very interested in the comments about energy security and how those efforts are moving forward, and i understand what's going on is going to help in the longer term. i just wondered if you could comment on any shorter term vulnerabilities that europe will face until some of the new terminals and pipelines come online that will create a better path for energy security in the future.

[speaking german] it's not -- [inaudible] that for the first time in the context of ukraine we've been working on a better and more secure energy supply and better connections within europe as regards to pipelines. a few years ago we already had a fast gas supply crisis. there were difficulties between russia and ukraine at the time in winter time, slovakia did not receive any gas. and at the time we said we will explore this phenomenon of reverse flow which enables you to also supply countries with gas that may not be directly connected to this particular pipeline. so we've tried to take measures that will avoid such a situation recurring again where slovakia, for example, and a lot of other countries are cut off from supplies. and we're doing that, poland is

doing that sort of scheme right now. due to the -- we're also trying to supply ukraine because thereto there is a possibility of this reverse flow. but 50% of deliveries to europe from russia come through ukraine. so there's a high dependency there, and we're very closely linked because we have big gas storage tanks in ukraine which in summer needs to be replenished so that in winter, sorry, you have sufficient gas to supply europe. so now we have to look at the individual dependence of individual countries. we have 37% dependence on russian gas, six countries are is 00% -- 100 president dependent, and there are other european members who are more than 50% dependent on russian supplies. so one has to increase the building up of lng terminals, for example, as one means to avoid further dependence.

we have a so-called cert framework on the single market, from the single market on energy package that's on the table in europe. so even an owner of a pipeline will not be allowed under that scheme to use the pipeline only for his own gas, but there are certain, certain features of that capacity that he can use for his own supply, but the rest of it has to be put out to tender, a public bidding process has to take place, and one has to see whether others also wish to use this pipeline so that there's not a monopoly that evolves here. this leads to russia being very interested in seeing the so-called pipeline being used more from russia, and there's one measure that we've taken. these negotiations were stopped on how this can be used by russia as well because we said we want to see further political progress before we can relaunch that negotiation. so we've done something in this respect, and we're going to

work, continue to work in this direction for five to ten-year plans as to how we do this. last point, we're thinking of -- and this is a polish proposal -- of also developing more of a clout as regards our consumer position. we have individual contracts with russia for individual member countries, but we could also pool our market position which will then render us stronger as consumers and call for unit form gas prices for the whole of europe. because there's a very broad range right now that goes from $300 to $409 per cubic meter, and that for the same gas supplies that is sold to individual countries and individual companies. those are the first ideas. >> chancellor, we have a lot of guests that come to the chamber. in this has been an

extraordinary, extraordinary and important visit that you've paid us. we are very anxious to know when you'll be coming back. [laughter] the sooner you come back, the sooner we can keep pushing this forward. but we want to thank you very much for visiting, want to thank you very much for your very candid and very helpful comments, and we want to thank your colleagues and your associates for everything they did to help us put this event together, and we look forward to seeing you very soon. [applause]#brhpm%)ñ >> top officials frommal branches of the military will be on capitol hill in this morning for a hearing on military compensation. bring you live coverage of this senate armed services committee hearing at 9:30 a.m. eastern on our companion network, c-span3.

>> officials from the state, treasury and defense departments discussed russia's intervention in ukraine today when they testified before the senate foreign relations committee. you can see it live at three p.m. eastern on our companion network, c-span3. >> you can now take c-span with you wherever you go with our free c-span radio app for your smartphone or tablet. listen to all three c-span tv channels or c-span railed owe anytime. -- radio anytime, and there's a schedule of each of our networks so you can tune in when you want, play podcasts of recent shows from our signature programs like "after words," "the communicators" and "q&a." download your free app online for your iphone, android or blackberry. >> the defense department's federal advisory committee is reviewing the way the military

investigates and prosecutes sexual assaults. next, members compare military and civilian systems, discuss the role of commanders and assess the effectiveness of military services for providing support and protection to victims. [inaudible conversations] >> thank you, judge jones. so at this point we'll turn to the next set of recommendations that the prepared systems subcommittee made which involves training, and these are 23-31. i'm going to ask for help from colonel lawrence j. morris who retired from the army after nearly 30 years of experience in military justice and in training. he's right now general counsel at the catholic university of america. his military experience included being head of the criminal law department of the u.s. army j jag's legal center and school and also chief of the u.s. army

trial defense service where he was very deeply engaged in training, so he's going to speak to us about the recommendations made on training. colonel morris. >> thanks. good morning, your honor, panel members. first, can i am ply the comment about the support -- amplify the comment about the support that we got from this committee has been nothing i have ever experienced before, so tremendous in their competence and responsiveness to us. what i'd like to do is just mention some of the main concepts under training and then talk a little bit about some of the ones that we paid the greatest attention to. i think there are five overall concepts in the training area, first being competence, second being standards, third being methodology or the way we do it, fourth being sustainment or figuring out if we're doing it right, and the last one being the inherent tension in the military between expertise and breadth. to the first one -- >> [inaudible] i didn't hear your last word. expertise and what?

>> breadth. >> brea, -- breadth. [laughter] >> apologize for my accent. so in the first area, our first assessment is that justice is part of competence in all three parts of the courtroom, prosecutors, defense counsel and judges. so all that we do to prepare them officially by putting them in seats or have it in practice and unofficially by all of the ways we develop them when they're not formally in training, we have to assume then means that the justice that occurs in the courtroom is the best possible product. in the way of standards, we don't have either within dod or even in the, as we looked around the country, you know, no particular published standards. we all know there were standards for the prosecution, standards for the defense, but no granular

training standards on particular discreet competencies in this area. the way people are trained, and in many ways the military does it most comprehensively by what, i think, many of you are aware of, a real stair step of training from the minute they walk into their respective judging advocate general's corps and then throughout with each level of experience and with each level of additional responsibility that's expected of them. civilians had a mix. there are some amount of formal training, generally not as much, not as routinely available, not as easy to mandate, tend to be busier people. and also, though, greater intensity of on-the-job training and a greater reliance of that training. finish also a certain relatively-shared baseline of experience, at least in big places where there was a three to five-year threshold before you tend to be trusted with a sexual assault case of much

complexity. some talked about a baseline of 50 or 60 cases as considered you were experienced enough to be able to be launched on your own. i think we know in the military a relatively small number who have that level of experience who don't have any kind of formal criterion there, but we do have an expect nation that on-the-job training occurs in every job all the time, so we have a formal structure as well as kind of an informal training that goes on through each level of supervision. as far as sustainment, some discussion about some way, and there are a couple of recommendations in there about looking for some common value whattive instrument -- evaluative instrument. we don't have it now. different services have begun to look at them, and to the extent if we're looking to unify and standardize some amount of training, then it makes sense to look at some way to measure that without just getting tricked into the, what's the conviction rate and that sort of thing as a

baseline or controlling metric. and then the area that is always complicated in the military is the tension that i'm sure you all have discussed and everybody wrestles with between the ideal world of deep competence in a particular area, at least deep competence in trial work as a prosecutor or defense counsel, as a trial advocate, and the military's need to have you do other stuff and to have to grow people through a career so that they can supervise people in those realms and in other realms, they can go to war, they have sufficient versatility to do things beyond that area. and with that in mind, then let me talk a little bit about some of the recommendations. one of them talks about, our recommendation 25 talks about the navy's plan that has

concentrated expertise and created the career track that many of us as young ourselves coveted and then, you know, begrudgingly come to realize it's just not likely to happen. and all we recommend is think hard about it, look at the navy's recent and intensive experience in this area and discuss whether if not that, something short of total, of a totally ad hoc system makes seasons. is there a way -- makes sense. is there a way, is there something on the continuum between the concentrated expertise that the navy is encouraging and some of the informal practices that grow with up among the services where there's not a formal track, but they do tend to manage and cultivate groups and subgroups of people so that you don't have an utter randomness to the development of expertise, and you don't have such an atomizing of that that you don't at least take it and encourage and cultivate it in people at the right levels. our next recommendation, is

similarly about defense expertise then, is, of course, that the defense counsel should never have less training opportunities, less developmental opportunities than the government has. i think we mentioned later that, of course, that there should be equivalent funding. but we also need to remember here that although -- i mean, that is important, to be equivalently resourced -- that most of the training happens in the other 50 weeks of the year that you're not sitting in a class somewhere. so though that is important, it also is more important, as important to look at the people who are put into those roles. so you could go to the best class in the world and then come home to an indifferent or distracted or unprepared or not terribly competent boss of this person as a trial advocate and,

therefore, that person doesn't get the coaching, doesn't get the development, doesn't get the intensity of the supervision, doesn't have somebody sitting in the courtroom. watching them, debriefing them ask all that kind of stuff. so though these formal mechanic nhls are important -- mechanisms are important, it's all of those other expectations we have that are then reflected in things like assignment policies that are the best guarantors of the corporate expertise on both sides of the courtroom. our next recommendation, pardon me, number 27 talks then about ways to manage the tension we talk about between the institutional bias toward touching a lot of areas of practice and concentrating hard while you're in the job. and one of the recommendations we have is to sit for two years in place. as a defense counsel, we make an equivalent argument on the government side so you go and to that job and resist the

temptation that exists between, oh, this person's pretty good at this, let's do a new thing. particularly with the relative, you know, the plateau that the services are currently sitting at in terms of, you know, cases per number of thousand service members and the percentage that are contested and that sort of thing, staying in place for some stable period of time at least means that in those tours of duty they're likely to get with sufficient experience that the system can say there were some quality and developmental ability that attaches to that tour of duty. we mentioned the metrics and mentioned equivalent funding which then takes us out of order back to the first recommendation and number 23 which is think harder and look at joint trainingment -- training. each of the services has distinct competencies and recent initiatives that are standing alone really useful. there has long been a lot of

cooperation among the services anyway, so it's not novel or earth shaking to say we ought to work together because they have. but it's a matter of considering standardizing the cross-communication, particularly in an area that has, is as critical as sexual assault. and not just because sexual assault is getting the attention, but, you know, the basket of advocacy skills that is required in that area is broader than most any other area. you have important competencies in dealing with victims and preparing your witnesses, evaluating scientific evidence, looking at the evidentiary complexity of rape, shield and other matters and dealing with the dynamic of preparing and arguing about such a fundamental human interchange. it has challenges for counsel just as trial advocates even before you begin to talk about

the stakes that the system has in those cases. one last recommendation, i'm not sure where it is other than i know i skipped it is the presence of civilian trainers. the military began a move about five years ago to what i grandly called highly qualified experts in which means civilians who have done a lot of other stuff before they came into the military that has been, i think by most, i think by all services who have used them an enriching capability. for a couple of reasons. one is these are people who have been career trial advocates mainly or, collusively in the -- exclusively in the sexual assault area. so recognizing we're not going to have that, we're not going to have it soon, and we do have people who have done it for a career's worth of time. they bring a depth and perspective that is not present or not present in any significant amount in the services.

they also bring the have you ever thought of that kind of perspective of a civilian who doesn't have the same view that somebody who has just worked in our relatively closed system has. so we have a consensus that however you structure it whether it is what they call the hqb system or some permanency in the system, there is much value to having some amount of permanent competency by people who bring that perspective from the civilian world attached to both the prosecution and the defense training mechanisms in all of the services. i can answer your questions now. >> so thank you, colonel morris. judge jones, i think what aisle do is walk -- i'll walk through these regulations and actually take on a few more which are very much related, and we'll make sure he hit on moe of these, so i'll go pretty quickly through the ones he mentioned.

the first is number 23 there is establish a joint training working group to assess the very things that colonel morris set out. looking to eliminate redun redundancy, consider consolidation and monitor training and experience. is setting up standards and formalizing in some ways. the next is about funding for training of judge advocates and our recognition that we need the secretary's support to make sure this is sustained or increased. in order to maintain the expertise we need in this difficult and challenging arena of litigation. of trial counsel, and that is a recommendation that colonel morris mentioned to look, not to implement in a lockstep and inappropriate fashion a program designed for the navy, but to reckon with how to maintain the litigation expertise which many counsel told us they lose quickly when they step out of the courtroom and that today need to have in order to be successful in these prosecutions. ..

the funding needs to be there to make sure they have opportunities comparable to the opportunity for training of trial counsel. and then colonel morris mentioned this. we want to leverage as the services are but perhaps it could be a short-term rather than longer-term. we want to preserve that to continue to fund and expand

possible programs that leverage civilian expertise in the training that happened for military trial and defense counsel. this is about the valuations and it's a recommendation that we consider setting some standards in gauging a formal valuations over to the navy's judicial evaluation of military councils advocacy skills. recognizing feedback for our council would be helpful to them and our judges have expertise in reckoning how the attorneys are performing before them. end and training of military judges. we can't talk about training and not talk about military judges especially given we're going to propose that military judges have a little muscle in the system that may have right now. we need to make sure they're trained as well. they covered bridges they enjoy training. we need to make sure they have the opportunity to understand the difficulty of these cases and also the role in the process as it changes which it has

continued to time with all the reforms and alterations congress and the secretary o have a to te processes that respond to sexual assaults. some going to go ahead judge jones, if it's okay with you, and then i'll do a few days and i'll leave some time for questions. colonel morris and the rest of the members from the panel. let me walk through a few more of these recommendations that are related. the multidisciplinary facilities issue has come up and much like we suggested the navy's litigation track or other services, programs be considered and leveraged, we don't want to suggest there's a single model that would work for investigators and prosecutors collaboration. we recommend to location and the caseloads justify consolidation and where resources are available because we did see evidence that worked effectively. there's no single model we think is best. there's no single model among the civilians organizations and

government and nongovernment prosecutors officers and investigators. there's no single model their but there are many different ways to provide this. consolidation can improve communication and can also serve our victims better but it's not the only way to make this happen. here's an example of different models we looked at. the first block is dawson plays which is close to military version to an interdisciplinary coalition model, have extraordinary and dedicated teams of people working together to bring into one location the different strands of effective response of sexual assault from the victim advocate, the sane or the safe, the special victim council in the military that is, not in the civil sector. investigator, prosecutor and the victim witness liaison who serve

as a guide through the process of prosecution for the victim. the other models we saw or listed. in philadelphia and in austin, texas. we visited those locations, talked about how they set this up. arlington, virginia, and fort hood and marine corp. is quantico about the co-location. we didn't recommend that collocation happen everywhere being aware of what the challenges of that could be. imagine more about this later but let me walk to the rest of these, few more recommendation applause for questions. this is about special victim prosecution, specially trained prosecutors. we want to make sure the trading continues to make sure with special victim prosecutors who are well equipped to manage the challenge of taking these cases successfully to trial. but we don't want to make sure, we don't want him to do so much of a burden on those prosecutors that we aren't able to do with the caseload that is likely

given the increase in reports including some low-level sex offenses in spectrum of article 120 misconduct. we think requiring prosecutors to try everyone 20 cases cannot likely be feasible or effective and that we think the definition of covered offenses ought to be changed because the terms that are used to match the terms that we are using a to find this kind of conduct. that's a recommendation of a using resources effectively and also defining terms. the next is about prosecutors, about resourcing prosecutors. this relates to the train that colonel morris spoke about. we need to continue to assess and provide resources needed to get well trained prosecutors and that thing called the sons -- special victim capability, svc which is the capability to bring resources together to address all the needs of the victims through the process.

we recognize services might need additional svc see this continuing trend, specially if we don't change requirement that they prosecute everyone 20 days and we need to fund the case separation requirements, investigation and a progression of the case. let's see. i'm going to do -- i will pause for questions. number 35 is about prosecuting sexual assault cases. is if we need to assess the effectiveness of counsel on the ground we need to assess the effectiveness of the special victim capability. we recommend that happen annually and we continue to develop metrics to identify success. in particular would recommend adding the dropout rate so that we can assess the effectiveness of keeping victims engage through the process. d.o.d. buzz a list of the criteria for evaluation -- as a list. the dropout rate has shown that this is a capability, the

special victim prosecutors that's helping the success of the prosecution and meeting the needs of victims who want us to engage in process. will want to make sure that continues to measure that effectively. the last one i will do it now, prosecuting sexual assault cases, prosecutors involvement, this is something that was mentioned. we want to maintain the standard for coordination between investigator and the special victim prosecutor and we want to add a requirement the prosecutor gets in touch with the victim as soon as possible. right now we don't have a standard for the. it does often happened and the prosecutor is out there and the branches of service realize that enhances the opportunity of a successful case and decide what the right outcome is if they get in touch with the victim early. the best practice from the civilian jurisdictions with whom we spoke with clue the prosecutor gets involved from the start. one of our subcommittee members who is not here, the kings county district attorney in

brooklyn, new york, and it was many years of experience as a prosecutor in special victim's cases in sex crimes and lectures, she finds it essential we get the prosecutors involved very early. this is a recommendation that we follow. what is happening but hasn't been articulated in terms of the standard and as a best practice from civilian jurisdiction. so the next few are about defense counsel, but i could, i want to lead to tougher questions. we have about 50 minutes to operate. i can do a few more of the recommendations or we can take some questions. >> let me just ask, are there any questions related to the last five or six -- i don't have any. all right then, why don't we take the next? >> okay. if you're following along -- along how we are on 37.

military defense conference structure and budget. one of our challenges is making sure defense counsel are resourced adequately. there's been attention to the prosecutors and the boards of having the expertise we need to successfully prosecute and win convictions in cases that we can. where that serves the interests of justice and the victim, and the military we need to make sure the best council are resourced. the challenge has been that military defense organizations don't have their own budgets and that that limits their ability in some cases they think. it does and it's been raised before to prepare their cases. so have some recommendations around that. but they aren't right here yet so we will get to those though about how the defense we can do a better job supporting defense council. this recommendation is about the next one, 38, directing services

to give defense counsel investigators. defense counsel repeatedly told us when we're out talking to them and certainly those of you have been defense counsel have had this concerned that they have to go through, they don't get the information they need about the case because they don't have investigators. we recommend they be independent deplorable and defense investigators to increase the efficiency and effectiveness of defense counsel of military justice altogether. right now the military defense counsel rely on the military criminal investigative office and that's insufficient for them independent investigations could make things go faster. v1 comments -- do you want, to? >> the agents are really, really good at what they do. and they are unbiased agency producing by the defense attorneys as being biased or they don't want to disclose to the agents their hand or whatever.

we did find in many jurisdictions the independent investigators working directly for the defense attorney our defense attorney's office was really beneficial and we see no reason why that shouldn't also be beneficial in the military as well. >> in addition to providing investigators for defense counsel we recommend the secretary direct the services to assess the performance of defense council. in sexual assault cases in particular we don't have any metrics that are standard that we sort assess effectiveness but it's never a civil process of evaluating effectiveness of counsel but we do in many of instanceinstances and we need te using the ideas colonel morris set out to measure competence in representing clients in military justice system. the next one is about the trial counsel's role and victims rights. we are walking to the process of prosecutioprosecution and talkit

how the different players ought to be assessed and supported in the roles in the process. this runs to the trial counsel's role in protecting the rights of victims. right now there is an on the record a military judge inquiry into whether or not the prosecutor has actively done the things that are required. we want to ensure the trial counsel to comply with their obligations to afford victims of the rights and require the judge to ask on the record where the trout customized with the statutory and policy requirements related to victims rights. that's another safeguard by putting on the record. so 41 is a recommendation about the interaction of the special victim's counsel, the new features of military justice in

recent months and year and trial and defense counsel. we need feedback on how this is working out staff judge advocates, prosecutors, defense counsel and from investigators. a special victim's counsel, their lawyers were going to work hard and pick up the tools that are able to them, that's a we expect them to do but we don't know impact that will have on the rest of the system. we need some assessment. so far we've had positive reports from the different parts of the system who are getting special victim's counsel. there are potential issues, including some that were reported to us embedded and raised elsewhere. this includes issues of privilege, confidentiality and delay because the governments interest and the interest of the comes will not always precisely a line. special victim's counsel is able to assert the demands, the concerned, the needs of the victim in a way to change the process in an appropriate fashion going forward but we need to be prepared to adjust and adapt to the. we need feedback on the.

this is also about victims rights in the special victim council. this is a legislative proposal that i mentioned at the beginning our response to some of the legislation that is out there appear throughout the presentation. is about the victim protection act and the particular provision of the it. this is a provision that suggests victims have a choice of military or civilian prosecution but we recommend congress that enacted that provision. the reason is that right now the decision to prosecute is routinely negotiated between civilian and military representatives. it was not forced to us as a significant source of tension or problems. because of that it doesn't make sense to us to suggest the

victim have that choice of military civilian prosecution. thanks. we didn't put this in here, too. we want victims to the voice in the process. and that's in part through the advocate and a special victim's counsel but not -- victims legally don't have control over jurisdiction. that seems a disservice to victims, too. >> all right, this one is a hard one. which we punted, so let me get to that one before lunch. so this is article 120. article 120 has been changed significantly twice since 2007. we recommend that the fall the one panel to our panel, the judicial proceedings bell, study the future changes. especially we recommend them and this is laid out in the recommendation that ineffective

there that we either narrow the things we call sexual assault or split things out in 120 in a way that doesn't compress so much behavior that is an aspect of the things we call sexual assault in the way that obscures what's happening and makes it difficult to respond effectively. this is where the comparative systems panel would look at what civilian jurisdictions do. usually sexual assault refers to felony level crimes like rape, penetrated offenses, misdemeanors our contact offenses, contact with an intent to satisfy sexual desire, sexual gratification. 120 spams all of those things. it's a broad range of conduct that included in article 120. the last line i added to the slide. we would like to follow one study of this in part because it's difficult to decide to change again the statute has been subject to so much revision in recent years and at which prosecutors are effectively bringing to justice persons now. and yet the statute itself has

some problems in it so we are not sure if she reaches but we do recommend for the study with an eye towards breaking out what is a very broad spectrum of different offenses that are charged under article 120. these next, i think i have -- we're doing great, judge jones. we have time to wrap up a couple more. this is a no recommendation. we did look at whether there should be a change in the discretion to draft the charges. we compared the civilian to military and we saw both a broad discussion -- discretion. we currently allow both sets of prosecutors to respond to the situation before them and draft appropriate charges given the law even when the laws article 120. then 45, okay, this is another, this is a fine rather than a recommendation. again we don't recommend a

change in the decision. civilian and military prosecutors days the same initial case decision. this is a question of whether will further investigation or decline prosecution. the second part runs to the alternative disposition options available for a military incident of misconduct as compared to something incidents. there are alternatives available. these are the ones, some of the ones that are distinctive in the military system and those continue to exist. we do not recommend that they go away, that the full spectrum of discipline actions continue to be available and that we continue to track how they're used which we are now which is the report does this without their use to respond to different incidents of misconduct include sexual assault i comes forward. and judge jones, the next one is sort of big. i wonder if we should cause and take any questions and come back

after lunch to talk about the military judge's role? >> that makes sense. any questions with respect to these last few? [inaudible] in terms of all the training. first i think this is a great layout of the issues and i applaud all of you. thank you for the time and effort. on the training part on recommendation number nine, all of the training has to be funded. it just says it's congress appropriate centralist money for the investigation peace as opposed to any the training requirements on the defense. the prosecution, judiciary. you talked about the secretary's authority. was that intentional distinction between the two that you want to centralize at the congressional level for investigators but at the secretary's good will, at the service-level? >> it was an intentional distinction that runs to

understand that, for instance, that discretionary funds for training are easily lost, and paired to have them set out separate exists. one of the comparable programs to responses we're talking that is the family advocacy program. mr. strand can talk about this. one way that congress ensured there were sufficient resources were domestic violence in step we should be clear, incidents of sexual assault can take place in a domestic funds contact do not come under. all the reports were talking about, they are classified separately which is funded separately which is a problem in terms of addressing us as a holistic set of issues because we sexual assault to do take place within families and end up there. but the family advocacy program was successfully funded and stood up through funds that were appropriate specific for that and were nondiscretionary.

mr. strand. >> we have seen some benefit from in the training arena of our agents and investigators and first responders. we did not see the same concern from the legal side whether funding was a problem or a concern in the out years. so we didn't get any information that they were concerned about future funding. of the programs the attorneys who currently have. >> that's what i wasn't sure. if you talk about sexual assault training and general as opposed to picking out one piece of it. the other question, you talk about the investigative defense counsel. the way they can get an investigator now is a figurative middle to judge and asked for an investigator to be appointed as a member of the team. what you're suggesting is to clarify for me i is that we tran trained people of defense investigators, do they automatically pashtun are you talking regionalize in them or putting them in office so the, available august defense to become for and ask that person be a member of the king to protect that client confidentiality peace that is so

important to the case? >> right. that's a great question. back was first an agent used to have investigators at the defense officers. usually we would put him be investors there will red agents, but by the army, agents investing the cases and investigators would last training, let's experience working less complicated cases. then we go off for a while. the judge could order an investigator. the problem is and the reason why we made this recommendation is i believe the -- they're overwhelmed with just investigating the case. to add additional requirements this could easily put this over the top if the request came to ncis, others, we also believe that defends investigative work is slightly different than prosecutor work. it might be better for defense attorneys with the confidentiality but also with

the nature of the types of investigation. basically defense investigators are looking for holes in the cases, looking for holes in investigation, looking for things we didn't do right and exploiting things along with contacting witnesses or identifying other witnesses. so if the military criminal investigator was detailed to do that, that might be problematic from the perception level but also they may not have the resources or the desire to be, you know, shooting holes in the boats of their fellow agents that they're going to go back to. >> you're talking to become up, make sure you understand, a stovepipe organization that answers back to d.c. the same way we have a defense committee of investigators. they will not be -- their defense investors aside whatever you choose -- >> or where ever spent it's not something -- okay. i did want to understand what you have suggested. i think colonel morris had a comment to that. >> i think we didn't want to be

-- [inaudible] what it would only look like. the are a bunch of models out there. one is to have kind of a trial defense service equivalent on the investigative side with the person checks out of that command, checks into defense command and then plugs back in at some point with all of the protections we come to see in 30 some years of independent defense counsel that makes it work that another way is the federal public defender model we talked about as well. we talked about system where you could contract with retired investigators and then you would have none of the aura of less than total independence because they would have to lean back into the system. our sense was to be very clear that it is overdue to have the capability and then work out the details. >> i just wanted to make sure defense would have to ask for that again. >> it should be ad hoc. >> i couldn't tell that from the brief comments on the recommendation so thank you for that. >> any other questions?

>> one comment i want to make to clarify the discussion on the victims protection act. and the reason that we came out like we did, too recently cannot liquidate. one, many federal jurisdictions are exclusively federal jurisdiction. therefore, if the military doesn't prosecute the case, only the u.s. attorney can then prosecute the case. we had without me identifying the specific office we had a rather significant u.s. attorney's office in front of us and saying, hey, we don't have anymore experts prosecute sexual assault cases than you do. that is not what we'd do on a day-to-day basis. that really underway our recommendation, with regard to that piece of legislation. >> just to underscore general dunn sport, that means a victimhood that i want a civilian prosecution -- general

dunn's -- much less prepared and less resource authority than the military would be, do not serving the needs of the victims. >> then i think we are ready to break for lunch. what is it? 1:30 no, no. 1:30 no, no. i mr. guinta become back? >> 1:00. >> 1:00. [inaudible conversations] >> top officials from all branches of the military will be on capitol hill this morning for hearing on military compensation. we will bring you live coverage of the senate armed services committee hearing at 9:30 a.m. eastern on a companion network c-span3.

officials from the state treasury and defense departments discuss russia's intervention in ukraine today when they testified before the senate foreign relations committee. you can see it live at 3 p.m. eastern on our companion network, c-span3. >> see spencer bruce books, trinity, a collection of interviews with some of the nations top storytellers. >> half the reason i do this book is because when martha arrived in berlin with the family, she was in love with and not see revolution. she was enthralled by the nazis, which really struck me as a complete the surprising thing, given what we all know, hindsight and how could you be enthralled with the not see revolution. but there she was. >> eric laursen, one of 40 when you need voices in our q&a conversations. c-span's "sundays at eight" published by public affairs books now available at your favorite bookseller.

>> now more from the defense department's federal advisory committee on sexual assaults. this panel examines recommendations and analysis on the rule of military judges and changes to military trials. this is one hour. >> all right, go ahead, professor hillman. >> thanks, judge jones. back from the sweater would continue to recommendations from the compared systems subcommittee of returning now towards recommendations related to the role of the military judge. in order to help us with his uncle and asked this afternoon with more members of our subcommittee to set up the recommendations for this section

colonel stephen henley who brings another nearly three decades of military justice expense to our subcommittee but retired as the chief trial judge of the trial judiciary in the army, so colonel hanley. >> i think i'll start by saying one of the criticisms or complaints we heard from the military justice system is the length of time it takes, generally, from the date of the alleged offense to the date of trial. i think that's in part to the fact that military doesn't have standing courts. i'll start over again. is that fine? or i will speak louder. one of the criticisms we heard a military justice system is the length of time it takes from the date of the alleged offense

generally to the date of trial. i think one of the reasons we attribute that is the military does not have standing courts like the civilian systems, federal and state judiciaries. so the military system, the court itself is not coming into existence until the convening authority confers the chargers to general or special court. so my experience, my time on the bench come once the charges have been referred and the military judge -- judges a time initial is involved with issues that could've been addressed pretrial. discovery issues we've heard referenced to requests for expert witnesses which now the defense counsel request to the convening authority and the convening authority nice the request for an expert, the first on the military judge can address that would be after referral. so if the military judge actually grants the request for expert assistance build in some

additional time and delay into the process. so this just in would be while not to have standing courts, i'd like -- like the federal or state systems can is to hav hava hybrid where you involve the military judge earlier on in the process to try to address and resolve some of these pretrial issues earlier on before referral of charges. those would include expert requests come areas of discovery issues, motions to compel evidence, if there are some pretrial restraints issues. and those issues can be resolved before you actually get to trial. and i think with that background i think some of the recommendations in that context will make sense. >> thank you, colonel henley. judge jones, i will walk through these recommendation and then take questions on these before we move onto the next section.

these are all recommendations number 45 and your findings and recommendations but they are a-f. there's a few slides on the. i will walk through the. first can bring discipline and military judges role. as colonel henley just sent out in the civil something criminal justice system we have a standing courts. we just don't have those in the military. courts-martial or ad-hockery because of that military judges to get involved into referrals. the are issues that come up before referral the military judges to have to resolve. is what stream i'm the process -- streamline the process and would improve the of the some specific examples of what that is. first military judges should rule on defense requests. defense request specifically for witnesses, for experts from other pretrial matters. right now defense counsel go through trial counsel which

means going through the convening authority in order to get the witnesses for instance, if they want. this requires a disclosure of information to the council that many defense counsel do we spoke did not appreciate. we also realize military judges already rule on these matters when the challenge comes out. to having a military judge do this is not a new task but with this would be a more formalized way and an early way for them to do it. it would enhance fairness in light of the article 32 changes. let me mention those as well. imagine those again in the next slide. we also recommend that military judges be able to issue subpoenas on behalf of defense council. many defense counsel told us they struggle because they didn't have authority to a trial counsel have because of counsel to have subpoena power. we realized into comparative study that some civilian public

defenders to have subpoena power and would recommend that military defense counsel be able to get that subpoena for the military judge. in terms of the changes to the article 32, congress has changed article 32 into what close who sells a preliminary hearing. the changes have made the trip -- pretrial process imagery more similar to civilian processes. iraq might position is a military judge preside as a military judge, not as a hearing officer but as a military judge as the new article 32, and that military judges ruling related to probable cause be binding so that the case does not proceed unless there's more evidence that is brought forward. so this is a recommendation that would not allow a convening authority to go forward with the prosecution if a judge presiding in a preliminary hearing maybe determination it was no probable cause. the last part of goes to another

piece of what was changed in the pretrial process. civilian approaches the victim pretrial testimony very similar. we're different descriptions of how that works out. we think our follow-on panel should assess depositions in light of the changes of article 32 and see whether changes are warranted because of the different process by which the article 32, that is the pretrial process will unfold under the new article 32 compared to how it had in the past. so those are our recommendations related to the military judges role. i'd like to get about a chance to ask any questions about the military judge. i love you a couple former military judges before you and other experts. >> admiral houck? >> the recommendations on the judges role are interesting.

and i think that one of the things, one of the questions that comes to mind is if we assume that the military justice system now is set up like it is, not out of a desire to prejudice the defense but for some other purpose, that the unique, use a voting system for example, going to the truck also going to a commander for resources and witnesses and experts and such that there was some purpose behind those rules. do you all feel that those purposes behind those rules has gone away? that they don't exist anymore ask is the question clear ?-que?-que x put another way, specific in a civilian system and presumably different for a reason, and i think it's understandable that the recommendations you make on the face make a lot of sense, but i'm interested underneath the

rational for the original system and is it no longer existing so that we commit to these changes which makes this a lot different system in some respects? a lot of experience here, so very interested in the answer. >> there are a number of reasons why it is structured while it is. a lot of it is historical and the way it has evolved to the biggest reason today why defense have to go through the trial counsel and the convening authority in order to get a witness, get witnesses or other assistance like that is because that's where the money is. the convening authority is responsible for paying for the trial, and the defense needs to go to the convening authority to get that money if there's money involved. and we wrestled with that because that's still a valid reason, the cost of the case or something that can't be something completely wished away and all of us. however, in view of a strong

interest in making sure that the defense is treated fairly and truly has equal access as the code requires, we concluded that that reason is outweighed by having to go to the judge. the judge is not going to be a rubberstamp. the judge has to look at the defense request and make sure that it makes sense, and presumably the judges also going to take into account costs involved in the case. but again balancing the reasons why it's been the way it has been and the concerns we have about making sure the defense has equal access, we concluded that the defense ought to have that avenue directly to the military judge. >> did you all see the system as it is is created real or perceived prejudice to defense interests as it is currently implemented. >> once i can only speak for myself but i think it's both are i think perception is broader than the real but i think there are cases, ma i can point to a

specific one that i think based on my experience there are cases where the defense either didn't ask for a witness are asked and didn't get and didn't renew the request to the judge or it was too late to move the request to the judge. because of the current structure, the way things work. i think there is an actual detriment to the defense in the way the system works now. >> the article 32 process is obviously change significant over the last couple of years especially the last year to where i think the original role was to have another nonlegal person involved to look at it for the commander. that's a change significantly with the last ndaa. but another thing i'd like to point out when professor hillman talked about the judge making a determination on probable cause with prejudice, i'm in binding to the government without prejudice to the government so the government could still go

back at any point in time and saisay we've got this additional evidence, or thank you, your honor, for this and then go back and either find additional evidence, have additional evidence so they can go back again. there's also been a lot of scrutiny over the legal system as far as 412 and so most of the things we have a non-judge making decisions on those which eventually than didn't obligate the trial in the future. so those are some of the consideration that we have as well. >> thank you. >> may i add one comment? on the specific issue of access to the military judge earlier in the process for witnesses, we did consider that in light of the fact that article 32 looks like, i don't know if it is, legislation that has been passed so much more limited in the future and we did hear quite a bit from defense counsel about

their fear that they will sort of be complete inability to bring witnesses in and talk to them in that environment. we saw it aside from fairness to defense counsel can we also saw it, or the discussion also centered on speeding the process of the case a little bit. because as we know now you can't always go to the judge after the prosecutor and convening authority to give it to you. it allows the process to move a little faster. >> yes? >> i just wanted to point out that our subcommittee ran into this problem pretrial, and that a lot of times victims need to assert their rights pretrial and there is no mechanism in order to do that. so it works both for the defense and for the victim in this case.

i applaud the innovation. >> judge jones, may i respond briefly to that? just about the creation of a special victims council also may increase the number of pretrial issues that need to be resolved and that runs to the victim being represented to that pretrial process. >> exactly. >> i have two quick questions. one is, i think general cook, you mentioned that judges can take into account the cost of issuing a subpoena. is that normally something a judge can do? >> i think in most civilian jurisdictions the judge isn't typically having to get involved in too many subpoena cases. i think in this situation where the defense doesn't have to worry about the money, the money is coming out of a different pocket, there is a danger that goes the other way, that the

defense will make requests for witnesses that would run the costs way up and the witnesses may not be, or whatever assistance is being asked for, may be of marginal voucher. i think the judge is going to have to look at that and see whether the fence is being eventually abusive or reasonable in their request. so costs would i think have to be something the judge would take into account. it would give the defense a pot of money and said you can use your own money, then there's a natural constraint on the defense to decide which cases are we going to ask for witnesses and which aren't we. but we are not proposing that because that raises a whole other slew of question in terms of funding and so forth. so this way, rather than defense having to go through the trial counsel and the convening authority and tip his or her hand on the case, and leave it up to them whether the witness showed or the other assistance should be provided, we think a new to judge if you want to

ought to make that decision. >> my other question has to do with the issue of the division by the judge pretrial which would affect the commanders ability to refer a case for prosecution later. did you have any input from commanders and to this recommendation? >> represented holzman come we didn't ask commanders about this. this was a result of what the site visits we went to. staff can correct if amok and i'm an anybody talking particularly about the need for the command to retain control of the discretion for funding these sorts of requests. they come t to the truck counted from special with us into being is the of the plays its role but the convening authority is the authority to which the funding comes. >> i'm not talking about funding. maybe i didn't make the

question. i'm talking about the ability of the judge to dismiss the case because of a lack of probable cause at the outset. that in essence prevents the role of the committee with regard -- i'm not saying it's a bad decision. i'm just saying that has a consequence so i just want to know what he had any input from commanders on that point. >> this is a requisition became after a site visits and as a result of deliberations what we learned. we did not post that question specifically. >> okay, thank you. >> is this going to mean that we will need more military judges, or have we thought about that? >> colonel henley? >> yes, i think you will need more. what you call them we are not sure. they could be military judges. they could be equivalent of a military magistrate who was promote the scientific trial judiciary rather than an extra day which at least for the army to our part-time magistrates who perform pretrial confinement

reduce -- >> the magistrate obviously, there are article iii judges and our magistrates. are they one and the same? >> no. >> okay. >> the military judge is an occupational specialty which you get upon graduating the military judges force, and certification by the service judge advocate general. a magistrate program varies amongst the services. i can speak for the army. it's a judge advocate who is one of the offices who is not in a military justice position who performs magistrate duties under the supervision -- is limited to typically search authorizations, can find reviews but they don't belong to the military judge. they're not part of the trial judiciary so we have military judge has no control over that aspect of the job.

>> so our magistrates come to the have a duty stations without able to do search warrants and that sort of thing and military judges or whatever they're called, are they located in particular stations? i just don't know exactly where they all come from. >> the army has i think about 21 military judges. we have more installations than that, so they are popular and most of the major installations and then they travel on. the magistrates, i would guess at least for the army, almost every installation has a magistrate available to it, to rule on these authorizations. and again i can't speak for the other services. i would imagine there's a similar setup. >> can i just add, judge jones? my take is that while this will

clearly mean some more work for military judges, my guess is it won't mean a tremendous amount of work, in part because many of these issues are issues that would later come to the judge wants the case was referred. if what we are recommending comes to pass these issues could come to the judge earlier and the results. there will be some increase in work and there may be some additional, need for additional judges but it don't see it as being a massive increase spend and barring unforeseen circumstances once the judge is assigned to a case, he or she carries it through. >> right, yes. [inaudible] the disclosure by the defense becomes, if it comes to the judge later on, the trial counsel gets the opportunity to object or not object to say whether or not, the merits of the request for that what is and

whether they should be funded depending on is a minor witnesses that would be touched or is it going to be a major witness that needs to be an investigator as part of the game for the merits of the key to the convening of forte said no to particular witness. when it gets to the judge, defense counsel requested, i'll counsel responds and this was more of a context of a particular case at the point because the case is then referred. i guess the question i have is, if we talk about pushing afford, but now you're saying the town council icouncil is not part ofe convening authority is part of the, are you going to let them know to judge access to what investigation has and investors have or do we live completed within defense attorneys to sit there and say hey i need this witness, i need this witness because, and the judge says yes or no without any other information about the case yet and without any understanding of what the cost in terms of focus will be important to the command or the larger piece of the? that would be my concern.

i'm fine with the judge being in charge but i'm concerned about they've got the funds, the context, but they don't have enough information is an option to maybe get the militant magistrate who was appointed, another attorney not working on the prosecution or defensive role, who does magistrate duties within scope but again they're not going of access to all the information either and they don't have access to the money. do you put the money in defense community and said you want a witness? go back to your own chain of command and then they will go to the scrutiny to make sure money that is requested is as important as they think it is to the case. >> on tv the classical or answer the it depends. -- i'll give you the classic lawyer answer. it depends. the magistrate is going to have to evaluate that on its face. some cases it may be easy and so you get it, or you don't. at least not without show me something more but in some cases

there may be some question and a magistrate or judge may have to go back and say to the prosecution i need some information from you. ultimately, if the judge is going to order something that's going to cost the command a good deal of money, the command is good to come back and say, we want more, and the judge will have to wrestle with that. this is all going to play out in the litigation process, but the point we are making is the defense rather than having to lay their cards on the table in front of the trial counsel and the convening authority, has access to a judge to work through this process but it will be up to the judge or the magistrate in whom we are putting a lot of confidence anyway to get the information he or she needs and make a decisi decision. >> even if the trout council is not there but the judge have the obligation and have as much information as they think is needed. >> this -- they aren't just going to rubberstamp i asked for

these three witnesses. >> and am i right if this were come if you got a military judge at referral for would be a trial counsel but even though it will be an ex parte defense request, trout council is able to comment and give the information? >> yes. >> if i could clarify. only in some instances would this be ex parte. the judge would, in fact, maybe general dunn will speak to this. go ahead. >> in our discussion the idea was the export taking a vacation would be the exception but in most cases from defense counsel would into the judge the talk of would be there as well preventing the accused mother or father and sister already coming to testify on his behalf. why his behalf. wide when his brother, his uncle and his aunt as well? that was our concept that it would be, the ex parte would be limited. >> as another example to what

general dunn has said, in use of experts if the defense were to file with the judge is a we need our own dna expert, that hopefully will not be a tranthirteen motion because the prosecution may say we don't have any dna. we don't intend to introduce dna so you can stop with that right there. that's the protective system i think. it's great to point out that these are not, we anticipated export date would be the exception not the rule. >> can ask a follow-up question? on recommendation number 45, article 32, if you're noticing military judge provides over the limit is do you envision that military judge continued to be the same judge that's a trial judge? it would be the same person that would've eliminated hearing and made decisions on admissible or not admissibility of evidence

later on in the trial or do you envision it being another, because we do have judges in different services that can go to government installations that doesn't have to be the same judge. and may require more travel but what was the recommendation on that one? >> i think absent extraordinaire circumstances it would be the same individual. now, if you adopt sort of a two-tier full-time military magistrate military judge and you envision the military magistrate performing many of these pretrial issues, they would not be the presiding judge at the trial. they would simply handle the preliminary issues. [inaudible] >> correct, yes. >> i guess the question is would be interesting if this was supplemented that dynamic of saying that the judge's ruling on a probable cause determination becomes binding and a longer goes back to

convening authority. some of the convening authorities announced from my understanding, is the article 32 is a discovery to understand its more limited but it is a discovery tool for the person to make decision as to whether acacia go to a court-martial or not. if we put this process into effect once the charges are referred, they refer it -- they used to go to pre-referral so essentially you have any discussion i guess for them to refer to job court-martial and not a judge once the case is a pretty goes to them, should be a general are not? now we take up whether she be a general court-martial but it will automatically be a general court-martial. explain to me if i've missed something but it seems a lot of the discretion, the article 32 decision -- [inaudible] after that to. >> whether not to refer a case to court has not been removed.

>> no, but if the judge femoved. >> no, but if the judge finds no probable cause -- >> which is a legal determination which is there is no probable cause there's nothing for a convening authority to go to try. there is no case. the military judge can still find probable cause and in the case would be forwarded to the convening authority for his position. the military judges role in this concept would be limited to a legal determination of whether a probable cause exists, similar -- >> to what the article 32 investigative offices do now. and convening authority sometimes disagree. based on their assessment of the evidence but that's all i'm saying. >> my experience on the investigative the officer's recommendation not to refer a case to trial with one

recommendation, i don't recall many circumstances where an investigative officer found no probable cause and the convening authority in the top referring the case to trial. there maybe some circumstances where that happens. i'm not aware of any. >> why would this be better than having a judge advocate not the judge serving on right now doesn't always have to be a judge advocate. why is this better than having a judge advocate -- or having a military judge? >> you are talking of the militant judge performing the duties of article 32 investigator officer, capacities of the military judge. >> right. >> really was for victims confidence in the system. so it is a judicial proceeding the judge comes through in a black robe, addresses objections to evidence, i think references to privileges 412. the judge would rule on those as they arrived rather than seek

advice from a legal adviser, would make a binding recommendation, inclusion of the evidence and then it would be forwarded to the convening authority for his position of the case. so i think the military judges role would address some of the legal issues as it relates to the confidence and the process of itself spent they sometimes have a grand jury. essentially is a any siblings sector any civilian process that is similar to what is now being proposed in this recommendation where the military -- or is the notion of becoming unique again? is there any process out there was is no preliminary investigation by somebody other than the judge? ..

the investigating officer in article 32 was there to evaluate taxes and make recommendations, and a huge difference from a new article 32 which is all about. i would love to know what everyone's impression is of what we are doing in article 32 now. because we later talked about

assessing the use of depositions i assume you talked about that little bit and i don't understand how much discovery is still going on or is there no discovery going on. there will be -- >> changes of not been implemented. >> definitely not so sure. >> the milestone in the investigative process chart, with probable cause. it occurred -- the standard is above that. the milestones in the process are listed here. we are suggesting that the judge

should find that there is no probable cause there's no reasonable belief that it occurred, and dismissal should be binding until and unless the prosecution comes forward at the government comes forward with additional evidence, we have another recommendation, the declination, and the possibility of bringing charges again. there is no probable cause. >> overarching visits for us, as colonel henley mentioned, victim confidence. we had examples where victims were going through article 32, the defense attorney was strong, everything in there, no judicial oversight, evidence came in that shouldn't have gone in, threat of evidence coming in shouldn't have gone there sell the second

part would be judicial oversight is a powerful piece so you don't have experiences we were told about happening again because you had the judge to make sure the 412 and everything else was handled appropriately instead of article 32 saying i will say this about this that could be completely wrong or complete the right and pushes down for months until the trial and what is happening, the victim who may drop out because of being asked questions that should have been protected during the 32, judicial oversight would help. >> how do you respond to that? >> it is worth remembering, still have pre-trial advice where the s.j. makes independent recommendation to the convening authority which includes the s j assessment whether charges are supported by the evidence of

potentially you have of foreseeable clash between determination by the judge at this level land that advice those in. >> that advice is prepared at what point after the article correct me if i'm mistaken, after the article 32. at this point, essentials the what i am struggling with is sexual assault crime now makes the determination to refer support. is that right? is that what it is at this point? the changes that were made? >> got to go. >> the company commando prefers that chart and that is what the charge is essentials the the community authority has no say and article 32 required it to go to the judge, tree trial advice is the convening authority to decide whether to send something based on information coming out of the article 32 but now it is

binding so there is no reason, ltd. reason may be to look back at what the requirements of it to say how much use pretrial advice is, the reality comes out once the decision is here. enough evidence to charge in the case of going forward and that may be the right answer but i am not confident it seems like a big jump for me at this point based on the information we have now to say that recommendation should be implemented or that particular issue to say here is a step, article 32, had some really complicated cases that completely inappropriate lend credibility to the process. if you put them in the process and say they are part of that it starts earlier. essentials be written commander out of the process and maybe take away some other safeguards we had and maybe that is something the joint services committee should look at.

>> standard of probable cause is pretty low and presumably there won't be too many cases that get to article 32 the government can't be a probable cause standard the convening authorities right there as always making a disposition decision following article 32 but it seemed to us if the government can't establish probable cause, the case should be over and there shouldn't be a case if it raises questions about the credibility of the system if the judge says no probable cause and the commander says i disagree, i will go forward. it raises question whether the commander could be influenced by other factors were not well informed about the law. that is where we came out. >> this would be a historic change you recommend.

for the first time there would be a lawyer inserted in the decisionmaking process and potentially of them determinative way. >> the convening authority console proceed. that would not seem to be a good decision the members mentioned. convening authority hours aren't completely under side in this way. advocates make recommendation, we are giving the military, recommending military judge have more of 40 sooner to make the probable cause determination. this is a recommendation the army came forward with you are hindered by not having discussion of the report in 2004. it is not an insignificant

change but not radical alteration of the process in my own estimation. >> it is a situation where you expect military judges finding no probable cause to be binding and result in dismissal. so that is not reviewed. mind you criminal-justice, criminal investigators, trial counsel decide that if the charge is unfounded that takes it out of the system even earlier stage. >> also without prejudice, we envision if you don't have a strong case where the judge thinks it could be, not enough probable cause, is a good flag for the prosecutor in command. -- >> preliminary hearing in the

federal system, may be they're different in state. i don't have that experience. a couple of hours exercise, one witness says this is what happened or what i saw happen. even credibility to make probable cause finding. there is enough, one person, the victim usually, one agent gets up and says this is what i saw, this is what i found. it is what the old article 32 was, this isn't waiting much. is there one person saying i was there, i saw this, this is pretty straight forward and as you say or someone said i can't even imagine there will be too many times there will be a finding of no probable cause.

>> no probable cause determination, that would be for prosecutors in the civilian world to go forward after finding no probable cause you see what happened. it would not be unethical but to take that away from convenience seems a minor in position on the convening authority's discussion. you ask about article 32, the legislative specialist to get this for me. the change, 32 as a preliminary services, a probable cause determination, jurisdiction, the form of the charges being considered and recommending disposition, change the recent depositions to testify. that shall be declared unavailable if the victim declined to participate. there are other changes but those are the big changes in the 32. >> to dismiss or else probable

cause, sound probable cause to this offense. thanks. >> i guess i'm dancing depositions. there really aren't free trials depositions. >> we heard from different civilians done this. in philadelphia they told us victims got preliminary hearings with some exception in washington state. this is finding 45-8 if you want to look at it. either party can request into the material so civilian practices very on this. that was our assessment of the comparative peace. >> you are only asking judicial proceedings to take a look at it. >> that is all crystal clear. this is related and has to do with referral. this is a recommendation that

there be a change in what has been enacted. national defense authorization act, fiscal year 14, the elevation of review creates undue pressure for referral and prosecution. we recommend congress not an act the victim protection act which would elevate this and the reasoning here runs to elevating review creates a 1-way racket toward more prosecution. even if referral to trials does not serve the estimate of the victim or justice, elevating reviews to the level of service secretary put them in the position and of course they can get their advice and they need but they are executing prosecutorial discretion, and those who currently have the authority in the military so we don't understand that one way ratchet be permitted to

continue. if it is not repealed this is the recommendation for format to declining prosecution that would preserve the possibility of future action. in this case, there's this elevated review requirement and a memorandum and that has to be issued if there's a declaration to refer to trial, we looked at civilian offices and the way those are structured to they do not require an analogous lanky justification and it is important we preserve the possibility charges could be brought again if the prosecution is declined if the case is not referred so we recommend there be a standard format to the declination process that preserves capacity of the system going forward doesn't prejudice a leader event. >> any questions on those? >> i would just say that for the

second reason with respect to section ii which is the relevant commander committee agrees a senior trial counsel in the process is not wise, that person is likely to be jr. and so we also do not believe that section should be enacted although we did not discuss, obviously we did not discuss the other rationale to recommendations. >> those are two referral recommendations we make. the next one is not yet recommendation regarding free-marketing. this is under discussion but we will flag this issue as worthy of further study and recommended change and that is compared to

civilian practice, comparative assessment, the bargaining works differently, in civilian jurisdictions normally there's a sentence specified in the fee agreement or range of punishment that could be adjudicated. court-martial instead, there's a feeling service member who does plead guilty. and was agreed upon in a pretrial agreement in which the victim of an participated. we see this as not good for the confidence of victims in the system. we have recommended a change in this and this is still under study. the subcommittee will say something about this in the next final report, interim report. we are not saying anything on this. >> this is a recommendation about selection of panel

members. we have concerns by the defense counsel that it is difficult to seek a fair and impartial panel. here we recommend the judge advocate's review the training on fall prevention to make sure messages are not being communicated or undercut our ability to have panel members who are prepared to function. we recommend related to that the military judges do what they do now which is to continue to control in a way that ensures the right panel can be seated. and questions on these as we go. i will move through these and we will pause but if you have questions, go ahead and raise them. >> give a question. >> it would mean going back to 45. i don't know if that is

possible. >> in this discussion here. the way i am looking at it is as much as a judge during pretrial hearings, there was sufficient evidence to go forward and in most cases there is evidence to go forward. and there's a tough position, with what the judge said. >> if there is no probable cause, i agree. >> there is probable cause and the convening authority decides not to go forward. >> often at hand would be the commander doesn't want to go forward. and no probable cause to go

forward. am i reading this wrong? >> probable cause going forward are two different things. just because there's probable cause doesn't take into a general court-martial. >> it is a big part of it. >> it is such a low thresholds. the judges i saying 32 here there is enough to go forward. as far as this part. the judge says there is probable cause. and that is different so the judge says there is probable cause it should not compel the commander for convening authority to say it is going to go forward. >> i never thought of probable cause as requiring any weight, you are not weighing the evidence and probable cause hearing this at least that is not my view so a commander could obviously take a look at a bunch

of facts and decide i am not taking this to trial. don't think it should go to general court-martial. >> to lock the commander in to moving forward, i do not think that is what this change is. >> i wonder if you have. >> that is not a split we have been looking for. it may not have been a good agreement to how do you get more scrutiny on these cases? >> we are not sure more scrutiny will help us. we push against the elevation of referral authority but we do think we need the right decisionmakers. and in our estimation was in the best position to decide that.

>> i understand the purpose is not to debate it now miss fernandez has of.that we have a judge making rulings and decisions before the commander gets to do that and we need to be very careful about unintended consequences of that because it cuts both ways. it could make it more difficult to refer at a commander, judge jones and there's another dynamic, but that puts a different but once the judges on the record before the commander saying there's probable cause and introduce different dynamic in the decisionmaking process which is different from what we are accustomed to right now. >> back to something we picked

up before, in the perception problem. in reverse, what we are seeing is there's a perception that if the judge has made a ruling and the commander goes counter to that will link, how do you square that? it would involve much more explanation on the commander's part at a minimum which may be good. i am not making -- i am just pointing out what it looks like. >> now we finished that for the second time i there any other comments? okay. this panel is not finished, nor has the subcommittee finished yet. i keep pressing ahead then. realizing we will come back to

these issues so this is that one and we are on to the defense. become protection act limits and good military character. and undermine victim confidence. and will still be admitted than what is relevant. and a proper foundation is established. and this particular part of the victim protection act. so let's see, this is the prosecution and conviction rate

issue, this runs to standardization and collecting data. we recommend the secretary for tabulating rates, this relates to what we said related to survey data, different definitions in the process, and independent expert to study prosecutorial decisionmaking and services used different definitions which said we point out make meaningful comparisons impossible. directed the amended methodology and i will walk through this. in each article we want the data to be kept and to actually have under the current article the spectrum of prosecution outcomes or investigation outcome that run through the process not all compress together but separated out the severity of the offense.

it says underneath by advanced types, and in some cases command actually would be precluded in order to have military jurisdiction. all of this comes out after those cases where there is military jurisdiction, not only jurisdiction as you saw if you were here but slide this morning, sometimes more national but if there is military jurisdiction then these are the options in terms of what can happen next. it can't be unfounded. sexual assault may be unfounded. it may be preferred, and we get to what happens at that point. there could be a pending disposition so we could be waiting. all we can get is a snapshot of the data out there. having the time horizon that extends over the point at which we are looking at the

information. other than the preferred charges that our preferred visa the different options. there can be no referral. it could be referred to a court martial. there could be resignation or discharge of court martial or it could be pending. if we have the services break out, disposition of cases, we will know how they compare and give it does go to court martial we could have an acquittal of sexual assault, a conviction of sexual assault offense or possibly some other accident at that point that could be, could still, could be in trial, could be possible there would be resignation in lieu of court-martial at that point but most likely a dismissal, mr. weill, catch all category but we would generally find convicted on sexual assault offense and also by specifying offense category what enabled one precise tracking of sexual offenses and sexual assault

itself because sometimes there are other offenses charged along with sexual assault and this would track the sexual assault offense rather than tracking the other offenses of which a service member might be convicted at an end of the process of investigation and prosecution. >> would you want to include offenses? they are not convicted of the actual sexual assault offense but convicted of some sort of assault offense included, would you want to do that to the other? the other category? something to consider as you are doing that. >> trying to articulate some things that throughout the school year, questions point out that i can't it precisely, does anyone on the subcommittee want to answer that? >> don't think we concluded on that but we will make a recommendation that encompasses all the options with a rational outcome but no matter what we

come up with there will be judgment calls in the reporting of these specifics, we cannot eliminate all the discussion here so we have to reckon with what we want to know, something less than a sexual assault charge and that includes abusive sexual conduct, relatively low-level offense in the scheme of things so even if we stuck only to the 120 offenses we did capture a lot of the conviction rates, prosecution rate data for them. here is where we get to one funded and unsubstantiated. we are on a vocabulary lesson so congress should amend legislation that is currently in the nba a to determine what is provided for unfounded cases those that are being baseless rather than an substantiated cases. this is an issue of reporting requirements causing trouble in interpretation and comparison of the data.

fiscal year 11, and substantiated cases, we think unfounded, baseless and that is what the issue should report on whether there reporting on cases not pursued further. i am looking at the time here. i will do a couple more, okay. comparing military -- comparing in terms of prosecution rates, we don't recommend congress or the secretary, civilian or military prosecution rates. and non prosecution for civilian

jurisdiction. mm-hmm military, were not the same applicable in a civilian jurisdiction. we recognize the definition of conduct prosecuted is different in the military versus civilian justice system. we do realize these are dynamic environments too to the uniform reports. these are changing data collection efforts but we don't want only the prosecution rate to expand as an assessment of success. we need to embed that in a more nuanced understanding of the data. this is about data, maybe we should do the sentencing part going forward. >> the u.s. senate is expected

to gavel in in a moment. they will begin with an hour general speeches and 11:00, to vote on an energy fissions bill. a measure requiring approval of the keystone pipeline project. as usual the chamber will recess from 12:30 to 2:15 eastern for their weekly party lunches and the official photograph of the 113th congress. now live to the senate floor on c-span2. the chaplain: let us pray. eternal god, we will remember your works and your wonders of old. meditating on your mighty acts that bless us each day. lord, you have ordained that in the leadership of