EO 13262 Title 3--The President "Section (d) is based on the first Recommendation Relating to the Con- duct of Judicial Proceedings in Criminal Cases, included in the Revised Re- port of the Judicial Conference Committee on the Operation of the Jury Sys- tem on the "Free Press--Fair Trial" Issue, 87 F.R.D. 519, 529 (1980), which was approved by the Judicial Conference of the United States on September 25, \177980. The requirement that the protective order be issued in writing is based on Rule for Courts-Martial 405(g)(6). Section (d) adopts a "substantial likelihood of material preiudice" standard in place of the Judicial Con- ference recommendation of a "likely to interfere" standard. The Judicial Conference's recommendation was issued before the Supreme Court's deci- sion in Gentile v. State Bur of Nev., 50\177 U.S. \177030 (\177991). Gentile, which dealt with a Rule of Professional Conduct governing extrajudicial state- ments, indicates that a lawyer may be disciplined for making statements that present a substantial likelihood of material prejudice to an accused's right to a fair trial. While the use of protective orders is distinguishable from limitations imposed by a bar's ethics rule, the Gentile decision ex- pressly recognized that the "speech of lawyers representing clients in pend- ing cases may be regulated under a less demanding standard than that es- tablished for regulation of the press in Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (\177976), and the cases which preceded it." 50\177 U.S. at \177074. The Court concluded that "the 'substantial likelihood of material prejudice' standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's inter- est in fair trials." Id. at \177075. Gentile also supports the constitutionality of restricting communications of non-lawyer participants in a court case. Id. at 1072-73 (citing Seattle Times Co. v. Rhinehurt, 467 U.S. 20, 32-33 (\177984)). Accordingly, a protective order issued under the "substantial likeli- hood of material prejudice" standard is constitutionally permissible. "The first sentence of the discussion is based on the committee comment to the Recommendations Relating to the Conduct of Judicial Proceedings in Criminal Cases. See 87 F.R.D. at 530. For a definition of "party," see R.C.M. \17703(\1776). The second sentence of the discussion is based on the first of the Judicial Conference's recommendations concerning special orders. See 87 F.R.D. at 529. The third sentence of the discussion is based on the second of the Judicial Conference's recommendations, id. at 532, and on United States v. Sulurneh, 992 F.2d 445, 447 (2d Cir. \177993) (per curturn), and In re Application of DowJones 8' Co., 842 F.2d 603, 61\177 & nA (2d Cir.), cert. denied, 488 U.S. 946 (\177988). The fourth sentence is based on Sulurneh, 992 F.2d at 447. The fifth sentence is based on Rule for Courts-Martial 905(d).". e. The Analysis accompanying R.C.M. \177001(b)(3)(A) is amended by insert- ing the following at the end thereof: "2002 Amendment: As previously written, R.C.M. \17700\177(b)(3)(A) offered little guidance about what it meant by "civilian convictions." See, e.g., United States v. White, 47 M.J. 139, 140 (C.A.A.F. 1997); United States v. Barnes, 33 N.J. 468, 472-73 (C.N.A. 1992); United States v. S]ovucek, 24 N.J. 140, 141 (CNA), cert. denied, 484 U.S. 855 (1987). The present rule addresses this void and intends to give the sentencing authority as much information as the military judge determines is relevant in order to craft an appropriate sentence for the accused. "Unlike most civilian courts, this rule does not allow admission of more extensive criminal history information, such as arrests. Use of such addi- tional information is not appropriate in the military setting where court- 224
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