CHAPTER XIII. SUMMARY COURTS-MARTIAL
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ends the right to object because arraignment is the point at which the accused is “brought to trial” within the meaning of Article 20. Rule 1304 Trial procedure (a) Pretrial duties. This subsection is based on paragraphs 79 c and 33 d of MCM, 1969 (Rev.). (b) Summary court-martial procedure. Paragraph 79 a of MCM, 1969 (Rev.), suggested that the summary court-martial use the general court-martial trial guide. However, the general court-mar- tial trial guide is inadequate for the person who ordinarily con- ducts the summary court-martial. The trial guide in Appendix 9 of this Manual was drafted to assist the lay presiding officer at summary courts-martial and incorporate the rules prescribed in this chapter. Subsection (1) is based on paragraph 79 d(1) of MCM, 1969 (Rev.). The requirement to inform the accused of the date of referral was added to subsection (1)(B) to assist the accused in making motions to dismiss or for other relief. Subsection (1)(E) is intended to more fully inform the accused of the scope of the evidence (testimonial, documentary, and physical) expected to be introduced. Subsection (1)(F) is new and is designed to assist the accused in making motions and presenting evidence in defense and in extenuation and mitigation. Subsection (1)(G) is new and is designed to assure the accused that no evidence, including statements previously made to the officer detailed to conduct the summary court-martial, will be considered unless admitted in a c c o r d a n c e w i t h t h e M i l i t a r y R u l e s o f E v i d e n c e . S u b s e c t i o n (1)(H) is new. Subsection (1)(L) is expanded to assure the ac- c u s e d t h a t t h e e x e r c i s e o f r i g h t s g u a r a n t e e d u n d e r t h e F i f t h Amendment and Article 31 will not be held against the accused. Subsection (2)(A) is based on Article 20 and the second para- graph of paragraph 79 d(1) of MCM, 1969 (Rev.). Subsection (2)(B) is based on paragraph 79 d(2) of MCM, 1969 (Rev.). Subsection (2)(C) is new. MCM, 1969 (Rev.) did not clarify the timing of motions in summary courts-martial. Subsection (2)(D)(ii) is new and designed to standardize the guilty plea inquiry by referring the summary court-martial to R.C.M. 909 which prescribed the inquiry for summary, special, and general courts-martial. Subsections (2)(D)(i) and (iii) through (v) are based on paragraph 79 d(2) of MCM, 1969 (Rev.). The provision in paragraph 79 d(2) which provided for hearing evi- dence on the offense(s) in a guilty plea case is omitted here because this procedure is covered in R.C.M. 1001(b)(4). Subsection (2)(E)(i) is based on Mil. R. Evid. 101 and 1101. Subsections (2)(E)(ii) through (iv) are based on paragraph 79 d (3) of MCM, 1969 (Rev.). Subsections (2)(F)(i) through (iii) are based on paragraph 79 d(4) of MCM, 1969 (Rev.). Note that the summary court-martial may consider otherwise admissible records from the accused’s personnel file under R.C.M. 1001(b)(2). This was not permitted under MCM, 1969 (Rev.) before the amendment of paragraph 75 on 1 August 1981. See Exec. Order No. 12315 (July 29, 1981). Subsection (2)(F)(iv) is new and fulfills the summary court-mar- tial’s post-trial responsibility to protect the interests of the ac- cused by informing the accused of post-trial rights. S u b s e c t i o n ( 2 ) ( F ) ( v ) i s n e w a n d d e s i g n e d t o i n f o r m t h e convening authority of any suspension recommendation and de- ferment request before receipt of the record of trial. Subsection (2)(F)(vi) modifies paragraph 79 d(4) of MCM, 1969 (Rev.). It recognizes the custodial responsibility of the summary court-mar- tial over an accused sentenced to confinement until the accused is delivered to the commander or the commander’s designee. It does not address the subsequent disposition of the accused, as this is a prerogative of the commander. Rule 1305 Record of trial (a) In general. This rule is based on paragraphs 79 e and 91 c of MCM, 1969 (Rev.) insofar as they prescribed that the record of trial of a summary court-martial will consist of a notation of key events at trial and insofar as they permitted the convening or higher authority to require additional matters in the record. Addi- tional requirements may be established by the Secretary con- cerned, the convening authority, or other competent authority. The modification of the format of the charge sheet ( see Appendix 4) eliminated it as the form for the record of trial of a summary court-martial. A separate format is now provided at Appendix 15. (b) Contents. This subsection is based on paragraphs 79 e and 91c of MCM, 1969 (Rev.). 1986 Amendment: R.C.M. 1305(b)(2) was amended to delete the requirement that the record of trial in summary courts-martial reflect the number of previous convictions considered. The Com- mittee concluded that this requirement had only slight utility and also noted that DD Form 2329, which serves as the record of trial in summary courts-martial, has no entry for this information. The Committee also noted that the Services each have requirements for retaining documents introduced at summary courts-martial with the record of trial. 2008 Amendment . Section (b) was amended by changing the first sentence to no longer require the preparation of copies of the record of trial, mandating instead that the summary court-martial prepare a “written record of trial.” This amendment was made in c o n j u n c t i o n w i t h t h e a d d i t i o n o f t h e d e f i n i t i o n o f t h e w o r d “writing” in R.C.M. 103(20). (c) Authentication. This subsection is based on paragraph 79 e of MCM, 1969 (Rev.). 2004 Amendment: This subsection was amended to require that summary courts-martial authenticate the original record of trial, as is currently the procedure for special and general courts-martial. 2008 Amendment . Section (c) was amended to conform to the new authentication requirements outlined in RCM 1104. Pursuant to this change, the summary court-martial may authenticate a record of trial by electronic signature. (d) Forwarding copies of the record. Subsection (1) is based on Article 60(b)(2). Subsection (2) is based on the third paragraph of paragraph 91 c of MCM, 1969 (Rev.). Subsection (3) is self- explanatory. 2008 Amendment . Subsection (d)(1)(A) was amended to con- form to the changes set forth in RCM 1104 by allowing a sum- mary court-martial to effectuate service by sending a record of trial electronically. 2001 Amendment: Subsection (d)(2) was amended to strike the reference to “subsection (e)(1)” and insert a reference to “subsec- t i o n ( d ) ( 1 ) ” t o r e f l e c t t h e 1 9 9 5 a m e n d m e n t t h a t r e d e s i g n a t e d R.C.M. 1305(e) as R.C.M. 1305(d). A21-99 App. 21, R.C.M. 1305(d)ANALYSIS
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Rule 1306 Post-trial procedure (a) Accused’s post-trial petition. This subsection is based on Arti- cle 60(b). Cf. Article 38(c). (b) Convening authority’s action. Subsection (1) refers to the detailed provisions concerning the convening authority’s initial review and action in R.C.M. 1107. The time period is based on Article 60(b)(1). Subsections (2) through (4) are based on para- graph 90 e of the MCM, 1969 (Rev.). Subsection (2) is modified to reflect that the accused ordinarily will receive a copy of the record before action is taken. See Article 60(b)(2). 2004 Amendment: The cross-reference to subsection R.C.M. 1105(c)(3) is amended to R.C.M. 1105(c)(2) to conform to the 1987 Change 3 amendment that re-designated R.C.M. 1105(c)(3) as R.C.M. 1105(c)(2). 2008 Amendment . Subsection (b)(3) was amended to conform to RCM 1104, by allowing a convening authority to sign an action dealing with an electronic record of trial electronically. (c) Review by a judge advocate. This subsection is based on Article 64. (d) Review by the Judge Advocate General. This subsection is based on Article 69 and refers to the detailed provisions govern- ing such requests for review in R.C.M. 1201. A21-100 App. 21, R.C.M. 1306 APPENDIX 21
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APPENDIX 22 ANALYSIS OF THE MILITARY RULES OF EVIDENCE SECTION I General Provisions The Military Rules of Evidence, promulgated in 1980 as Chap- ter XXVII of the Manual for Courts-Martial, United States, 1969 (Rev. ed.), were the product of a two year effort participated in by the General Counsel of the Department of Defense, the United States Court of Military Appeals, the Military Departments, and the Department of Transportation (the Department under which the Coast Guard was operating at that time). The Rules were drafted by the Evidence Working Group of the Joint Service Committee on Military Justice, which consisted of Commander James Pinnell, JAGC, U.S. Navy, then Major John Bozeman, JAGC, U.S. Army (from April 1978 until July 1978), Major Fredric Lederer, JAGC, U.S. Army (from August 1978), Major James Potuk, U.S. Air Force, Lieutenant Commander Tom Snook, U.S. Coast Guard, and Mr. Robert Mueller and Ms. Carol Wild Scott of the United States Court of Military Appeals. Mr. Andrew Effron represented the Office of the General Counsel of the De- partment of Defense on the Committee. The draft rules were reviewed and, as modified, approved by the Joint Service Com- mittee on Military Justice. Aspects of the Rules were reviewed by the Code Committee as well. See Article 67(g). The Rules were approved by the General Counsel of the Department of Defense and forwarded to the White House via the Office of Management and Budget which circulated the Rules to the Departments of Justice and Transportation. The original Analysis was prepared primarily by Major Fredric Lederer, U.S. Army, of the Evidence Working Group of the Joint Service Committee on Military Justice and was approved by the Joint Service Committee on Military Justice and reviewed in the Office of the General Counsel of the Department of Defense. The Analysis presents the intent of the drafting committee, seeks to indicate the source of the various changes to the Manual, and generally notes when substantial changes to military law result from the amendments. This Analysis is not, however, part of the Executive Order modifying the present Manual nor does it consti- tute the official views of the President, Department of Defense, D e p a r t m e n t o f H o m e l a n d S e c u r i t y , M i l i t a r y D e p a r t m e n t s , o r United States Court of Appeals for the Armed Forces. The Analysis does not identify technical changes made to adapt the Federal Rules of Evidence to military use. Accordingly, the Analysis does not identify changes made to make the Rules gen- der neutral or to adapt the Federal Rules to military terminology by substituting, for example, “court members” for “jury” and “military judge” for “court.” References within the Analysis to “the 1969 Manual” and “MCM, 1969 (Rev.)” refer to the Manual for Courts-Martial, 1969 (Rev. ed.) (Executive Order 11476, as amended by Executive Order 11835 and Executive Order 12018) as it existed prior to the effective date of the 1980 amendments. References to “the prior law” and “the prior rule” refer to the state of the law as it existed prior to the effective date of the 1980 amendments. References to the “Federal Rules of Evidence Advi- sory Committee” refer to the Advisory Committee on the Rules of Evidence appointed by the Supreme Court, which prepared the original draft of the Federal Rules of Evidence. During the Manual revision project that culminated in promul- gation of the Manual for Courts-Martial, 1984 (Executive Order 12473), several changes were made in the Military Rules of Evidence, and the analysis of those changes was placed in Appen- dix 21. Thus, it was intended that this Appendix would remain static. In 1985, however, it was decided that changes in the analysis of the Military Rules of Evidence would be incorporated into this Appendix as those changes are made so that the reader need consult only one document to determine the drafters’ intent regarding the current rules. Because this Analysis expresses the intent of the drafters, cer- tain legal doctrines stated in this Analysis may have been overtur- ned by subsequent case law. This Analysis does not substitute for research about current legal rules. Several changes were made for uniformity of style with the remainder of the Manual. Only the first word in the title of a rule is capitalized. The word “rule” when used in text to refer to another rule, was changed to “Mil. R. Evid.” to avoid confusion with the Rules for Courts-Martial. “Code” is used in place of Uniform Code of Military Justice. “Commander” is substituted for “commanding officer” and “officer in charge.” See R.C.M. 10 3(5). Citations to the United States Code were changed to con- form to the style used elsewhere. “Government” is capitalized when used as a noun to refer to the United States Government. In addition, several cross-references to paragraphs in MCM, 1969 (Rev.) were changed to indicate appropriate provisions in this Manual. With these exceptions, however, the Military Rules of Evi- dence were not redrafted. Consequently, there are minor varia- t i o n s i n s t y l e o r t e r m i n o l o g y b e t w e e n t h e M i l i t a r y R u l e s o f Evidence and other parts of the Manual. Where the same subject is treated in similar but not identical terms in the Military Rules of Evidence and elsewhere, a different meaning or purpose should not be inferred in the absence of a clear indication in the text or the analysis that this was intended. 2013 Amendment. On December 1, 2011, the Federal Rules of Evidence were amended by restyling the rules, to make them simpler to understand and use, without changing the substantive meaning of any rule. In light of the amendments to the Federal Rules of Evidence, significant changes to the Military Rules of Evidence (Mil. R. Evid.) were implemented by Executive Order 13643, dated May 15, 2013. In addition to stylistic changes that harmonize the Mil. R. Evid. with the Federal Rules, the changes also ensure that the rules address the admissibility of evidence, rather than the con- duct of the individual actors. Like the Federal Rules of Evidence, these rules ultimately dictate whether evidence is admissible and, therefore, it is appropriate to phrase the rules with admissibility as the focus, rather than a focus on the actor ( i.e., the commanding officer, military judge, accused, etc.). The rules were also reformatted, and the new format achieves a clearer presentation. This was accomplished by indenting para- A22-1
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graphs with headings and hanging indents to allow the practi- tioner to distinguish between different subsections of the rules. The restyled rules also reduce the use of inconsistent terms that are intended to mean the same thing but may, because of the inconsistent use, be misconstrued by the practitioner to mean something different. While most of the changes avoid any style improvement that might result in a substantive change in the application of the rule, some of those changes to the rules were proposed with the ex- press purpose of changing the substantive content of the rule in order to affect the application of the rule in practice. The analysis of each rule clearly indicates whether the drafters intended the changes to be substantive or merely stylistic. The reader is en- couraged to consult the analysis of each rule if he or she has questions as to whether the drafters intended a change to the rule to have an effect on a ruling of admissibility. Rule 101 Scope (a) Applicability. Rule 101(a) is taken generally from Federal Rule of Evidence 101. It emphasizes that these Rules are applica- ble to summary as well as to special and general courts-martial. See “Rule of Construction.” Rule 101(c), infra. Rule 1101 ex- pressly indicates that the rules of evidence are inapplicable to investigative hearings under Article 32, proceedings for pretrial advice, search authorization proceedings, vacation proceedings, and certain other proceedings. Although the Rules apply to sen- tencing, they may be “relaxed” under Rule 1101(c) and R.C.M. 1001(c)(3). The limitation in subdivision (a) applying the Rules to courts- martial is intended expressly to recognize that these Rules are not applicable to military commissions, provost courts, and courts of inquiry unless otherwise required by competent authority. See Part I, Para. 2 of the Manual. The Rules, however, serve as a “guide” for such tribunals. Id. The Military Rules of Evidence are inapplicable to proceedings conducted pursuant to Article 15 of the Uniform Code of Military Justice. The decisions of the United States Court of Appeals for the Armed Forces and of the Courts of Criminal Appeals must be utilized in interpreting these Rules. While specific decisions of the Article III courts involving rules which are common both to the Military Rules and the Federal Rules should be considered very persuasive, they are not binding; see Article 36 of the Uni- form Code of Military Justice. It should be noted, however, that a significant policy consideration in adopting the Federal Rules of Evidence was to ensure, where possible, common evidentiary law. (b) Secondary sources. Rule 101(b) is taken from Para. 137 of MCM, 1969 (Rev.) which had its origins in Article 36 of the Uniform Code of Military Justice. Rule 101(a) makes it clear that the Military Rules of Evidence are the primary source of eviden- tiary law for military practice. Notwithstanding their wide scope, h o w e v e r , R u l e 1 0 1 ( b ) r e c o g n i z e s t h a t r e c o u r s e t o s e c o n d a r y sources may occasionally be necessary. Rule 101(b) prescribes the sequence in which such sources shall be utilized. Rule 101(b)(1) requires that the first such source be the “rules of evidence generally recognized in the trial of criminal cases in the United States District courts.” To the extent that a Military Rule of Evidence reflects an express modification of a Federal Rule of Evidence or a federal evidentiary procedure, the President has determined that the unmodified Federal Rule or procedure is, within the meaning of Article 36(a), either not “practicable” or is “contrary to or inconsistent with” the Uniform Code of Military Justice. Consequently, to the extent to which the Military Rules do not dispose of an issue, the Article III Federal practice when practicable and not inconsistent or contrary to the Military Rules shall be applied. In determining whether there is a rule of evi- dence “generally recognized,” it is anticipated that ordinary legal research shall be involved with primary emphasis being placed upon the published decisions of the three levels of the Article III courts. Under Rule 1102, which concerns amendments to the Federal Rules of Evidence, no amendment to the Federal Rules shall be applicable to courts-martial until 180 days after the amendment’s effective date unless the President shall direct its earlier adoption. Thus, such an amendment cannot be utilized as a secondary source until 180 days has passed since its effective date or until the President had directed its adoption, whichever occurs first. An amendment will not be applicable at any time if the President so directs. It is the intent of the Committee that the expression, “common law” found within Rule 101(b)(2) be construed in its broadest possible sense. It should include the federal common law and what may be denominated military common law. Prior military cases may be cited as authority under Rule 101(b)(2) to the extent that they are based upon a present Manual provision which has been retained in the Military Rules of Evidence or to the extent that they are not inconsistent with the “rules of evidence generally recognized in the trial of criminal cases in the United States District courts,” deal with matters “not otherwise prescribed in this Manual or these rules,” and are “practicable and not inconsis- tent with or contrary to the Uniform Code of Military justice or this Manual.” (c) Rule of construction. Rule 101(c) is intended to avoid unnec- essary repetition of the expressions, “president of a special court- martial without a military judge” and “summary court-martial o f f i c e r . ” “ S u m m a r y c o u r t - m a r t i a l o f f i c e r ” i s u s e d i n s t e a d o f “ s u m m a r y c o u r t - m a r t i a l ” f o r p u r p o s e s o f c l a r i t y . A s u m m a r y court-martial is considered to function in the same role as a military judge notwithstanding possible lack of legal training. As previously noted in Para. 137, MCM, 1969 (Rev.), “a summary court-martial has the same discretionary power as a military judge concerning the reception of evidence.” Where the application of these Rules in a summary court-martial or a special court-martial without a military judge is different from the application of the Rules in a court-martial with a military judge, specific reference has been made. Disposition of present Manual. That part of Para. 137, MCM, 1969 (Rev.), not reflected in Rule 101 is found in other rules, see, e.g., Rules 104, 401, 403. The reference in Para. 137 to privileges arising out of treaty or executive agreement was deleted as being unnecessary. See generally Rule 501. 2013 Amendment. In subsection (a), the phrase “including sum- mary courts-martial” was removed. The drafters recommended removing this phrase because Rule 1101 already addresses the applicability of these rules to summary courts-martial. In subsec- tion (b), the word “shall” was changed to “will” in accordance with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as “shall” and “should” be- cause of the potential disparity in application and interpretation of A22-2 App. 22, M.R.E. APPENDIX 22
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whether the word is precatory or prescriptive. See Fed. R. Evid. 101, Restyled Rules Committee Note. The drafters did not intend this amendment to change any result in any ruling on evidence admissibility. The discussion sections do not have the force of law and may be changed without an Executive Order, as warranted by changes in applicable case law. The discussion sections should be consid- ered treatise material and are non-binding on the practitioner. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 102 Purpose and construction Rule 102 is taken without change from Federal Rule of Evi- dence 102 and is without counterpart in MCM, 1969 (Rev.). It provides a set of general guidelines to be used in construing the Military Rules of Evidence. It is, however, only a rule of con- struction and not a license to disregard the Rules in order to reach a desired result. Rule 103 Rulings on evidence (a) Effect of erroneous ruling. Rule 103(a) is taken from the Federal Rule with a number of changes. The first, the use of the language, “the ruling materially prejudices a substantial right of a party” in place of the Federal Rule’s “a substantial right of party is affected” is required by Article 59(a) of the Uniform Code of Military Justice. Rule 103(a) comports with present military prac- tice. The second significant change is the addition of material relat- ing to constitutional requirements and explicitly states that errors of constitutional magnitude may require a higher standard than the general one required by Rule 103(a). For example, the harm- less error rule, when applicable to an error of constitutional di- mensions, prevails over the general rule of Rule 103(a). Because Section III of these Rules embodies constitutional rights, two standards of error may be at issue; one involving the Military Rules of Evidence, and one involving the underlying constitu- tional rule. In such a case, the standard of error more advanta- geous to the accused will apply. R u l e 1 0 3 ( a ) ( 1 ) r e q u i r e s t h a t a t i m e l y m o t i o n o r o b j e c t i o n generally be made in order to preserve a claim of error. This is similar to but more specific than prior practice. In making such a motion or objection, the party has a right to state the specific grounds of the objection to the evidence. Failure to make a timely and sufficiently specific objection may waive the objection for purposes of both trial and appeal. In applying Federal Rule 10 3(a), the Article III courts have interpreted the Rule strictly and held the defense to an extremely high level of specificity. See, e.g., United States v. Rubin , 609 F.2d 51, 61-63 (2d Cir. 1979) (objection to form of witness’s testimony did not raise or preserve an appropriate hearsay objection); United States v. O’Brien , 601 F.2d 1067 (9th Cir. 1979) (objection that prosecution witness was testifying from material not in evidence held inadequate to raise or preserve an objection under Rule 1006). As indicated in the Analysis of Rule 802, Rule 103 significantly changed military law insofar as hearsay is concerned. Unlike present law under which hearsay is absolutely incompetent, the Military Rules of Evidence simply treat hearsay as being inadmissible upon ade- quate objection; see Rules 803, 103(a). Note in the context of Rule 103(a) that R.C.M. 801(a)(3) (Discussion) states: “The par- ties are entitled to reasonable opportunity to properly present and support their contentions on any relevant matter.” An “offer of proof” is a concise statement by counsel setting forth the substance of the expected testimony or other evidence. Rule 103(a) prescribes a standard by which errors will be tested on appeal. Although counsel at trial need not indicate how an alleged error will “materially prejudice a substantial right” in order to preserve error, such a showing, during or after the objec- tion or offer, may be advisable as a matter of trial practice to further illuminate the issue for both the trial and appellate bench. 2004 Amendment: Subdivision (a)(2) was modified based on the amendment to Fed. R. Evid. 103(a)(2), effective 1 December 2000, and is virtually identical to its Federal Rule counterpart. It is intended to provide that where an advance ruling is definitive, a party need not renew an objection or offer of proof at trial; otherwise, renewal is required. (b) Record of offer, and (c) Hearing of members — Rule 103(b) and (c) are taken from the Federal Rules with minor changes in terminology to adapt them to military procedure. (d) Plain error— Rule 103(d) is taken from the Federal Rule with a minor change of terminology to adapt it to military prac- tice and the substitution of “materially prejudices” substantial rights of “affecting” substantial rights to conform it to Article 59(a) of the Uniform Code of Military Justice. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 104 Preliminary questions (a) Questions of admissibility generally. Rule 104(a) is taken generally from the Federal Rule. Language in the Federal Rule requiring that admissibility shall be determined by the “court, subject to the provisions of subdivision (b)” has been struck to ensure that, subject to Rule 1008, questions of admissibility are solely for the military judge and not for the court-members. The deletion of the language is not intended, however, to negate the general interrelationship between subdivisions (a) and (b). When relevancy is conditioned on the fulfillment of a condition of fact, the military judge shall “admit it upon, or subject to, the introduc- tion of evidence sufficient to support a finding of the fulfillment of the condition.” Pursuant to language taken from Federal Rule of Evidence 10 4(a), the rules of evidence, other than those with respect to privi- leges, are inapplicable to “preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, the admissibility of evidence....” These exceptions are new to military law and may substantially change military prac- tice. The Federal Rule has been modified, however, by inserting language relating to applications for continuances and determina- tions of witness availability. The change, taken from MCM, 1969 (Rev.), Para. 137, is required by the worldwide disposition of the armed forces which makes matters relating to continuances and witness availability particularly difficult, if not impossible, to resolve under the normal rules of evidence— particularly the hearsay rule. A significant and unresolved issue stemming from the language of Rule 104(a) is whether the rules of evidence shall be applica- ble to evidentiary questions involving constitutional or statutory A22-3 App. 22, M.R.E. 104(a)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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issues such as those arising under Article 31. Thus it is unclear, for example, whether the rules of evidence are applicable to a d e t e r m i n a t i o n o f t h e v o l u n t a r i n e s s o f a n a c c u s e d ’ s s t a t e m e n t . While the Rule strongly suggests that rules of evidence are not applicable to admissibility determinations involving constitutional issues, the issue is unresolved at present. (b) Relevancy conditioned on fact. Rule 104(b) is taken from the Federal Rule except that the following language had been added: “A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge.” This material was added in order to clarify the rule and to explicitly preserve contemporary military procedure, Para. 57, MCM, 1969 (Rev.). Under the Federal Rule, it is un- clear whether and to what extent evidentiary questions are to be submitted to the jury as questions of admissibility. Rule 104(b) has thus been clarified to eliminate any possibility, except as required by Rule 1008, that the court members will make an admissibility determination. Failure to clarify the rule would pro- duce unnecessary confusion in the minds of the court members and unnecessarily prolong trials. Accordingly, adoption of the language of the Federal Rules without modification is impractica- ble in the armed forces. (c) Hearing of members. Rule 104(c) is taken generally from the Federal Rule. Introductory material has been added because of the impossibility of conducting a hearing out of the presence of the m e m b e r s i n a s p e c i a l c o u r t - m a r t i a l w i t h o u t a m i l i t a r y j u d g e . “Statements of an accused” has been used in lieu of “confessions” because of the phrasing of Article 31 of the Uniform Code of Military Justice, which has been followed in Rules 301–306. (d) Testimony by accused. Rule 104(d) is taken without change from the Federal Rule. Application of this rule in specific circum- stances is set forth in Rule 304(f), 311(f) and 321(e). (e) Weight and credibility. Rule 104(e) is taken without change from the Federal Rule. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 105 Limiting evidence that is not admissible against other parties or for other purposes Rule 105 is taken without change from the Federal Rule. In view of its requirement that the military judge restrict evidence to its proper scope “upon request,” it overrules United States v. Grunden, 2 M.J. 116 (C.M.A. 1977) (holding that the military judge must sua sponte instruct the members as to use of evidence of uncharged misconduct) and related cases insofar as they re- quire the military judge to sua sponte instruct the members. See e.g., S. SALTZBURG & K. REDDEN, FEDERAL RULES OF E V I D E N C E M A N U A L 5 0 ( 2 d e d . 1 9 7 7 ) ; U n i t e d S t a t e s v . Sangrey, 586 F.2d 1315 (9th Cir. 1978); United States v. Barnes , 586 F.2d 1052 (5th Cir. 1978); United States v. Bridwell , 583 F.2d 1135 (10th Cir. 1978); but see United States v. Ragghianti , 560 F.2d 1376 (9th Cir. 1977). This is compatible with the gen- eral intent of both the Federal and Military Rules in that they place primary if not full responsibility upon counsel for objecting to or limiting evidence. Note that the Rule 306, dealing with statements of co-accused, is more restrictive and protective than Rule 105. The military judge may, of course, choose to instruct sua sponte but need not do so. Failure to instruct sua sponte could potentially require a reversal only if such failure could be considered “plain error” within the meaning of Rule 103(d). Most failures to instruct sua sponte, or to instruct, cannot be so consid- ered in light of current case law. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 106 Remainder of or related writings or recorded statements Rule 106 is taken from the Federal Rule without change. In view of the tendency of fact-finders to give considerable eviden- tiary weight to written matters, the Rule is intended to preclude the misleading situation that can occur if a party presents only part of a writing or recorded statement. In contrast to Para. 140 a, MCM, 1969 (Rev.), which applies only to statements by an ac- cused, the new Rule is far more expansive and permits a party to require the opposing party to introduce evidence. That aspect of Para. 140 a(b) survives as Rule 304(h)(2) and allows the defense to complete an alleged confession or admission offered by the prosecution. When a confession or admission is involved, the defense may employ both Rules 106 and 304(h)(2), as appropri- ate. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. SECTION II Judicial Notice Rule 201 Judicial notice of adjudicative facts (a) Scope of Rule. Rule 201(a) provides that Rule 201 governs judicial notice of adjudicative facts. In so doing, the Rule re- placed MCM, 1969 (Rev.), Para. 147 a. The Federal Rules of E v i d e n c e A d v i s o r y C o m m i t t e e d e f i n e d a d j u d i c a t i v e f a c t s a s “simply the facts of the particular case” and distinguished them from legislative facts which it defined as “those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body,” reprinted in S. S A L T Z B U R G & K . R E D D E N , F E D E R A L R U L E S O F E V I - DENCE MANUAL 63 (2d ed. 1977). The distinction between the two types of facts, originated by Professor Kenneth Davis, can on occasion be highly confusing in practice and resort to any of the usual treatises may be helpful. (b) Kinds of facts. Rule 201(b) was taken generally from the Federal Rule. The limitation with FED. R. EVID. 201(b)(1) to facts known “within the territorial jurisdiction of the trial court” was replaced, however, by the expression, “generally known uni- versally, locally, or in the area, pertinent to the event.” The worldwide disposition of the armed forces rendered the original language inapplicable and impracticable within the military envi- ronment. Notice of signatures, appropriate under Para. 147 a, MCM, 1969 (Rev.), will normally be inappropriate under this Rule. Rule 902(4) & (10) will, however, usually yield the same result as under Para. 147 a. When they qualify as adjudicative facts under Rule 201, the A22-4 App. 22, M.R.E. 104(a) APPENDIX 22
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following are examples of matters of which judicial notice may be taken: The ordinary division of time into years, months, weeks and other periods; general facts and laws of nature, including their ordinary operations and effects; general facts of history; generally known geographical facts; such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute; such facts as are so generally known or are of such common notoriety in the area in which the trial is held that they cannot reasonably be the subject of dispute; and specific facts and propositions of generalized knowledge which are capable of immediate and accurate determi- nation by resort to easily accessible sources of reasonable indis- putable accuracy. (c) When discretionary. While the first sentence of the subdivi- sion is taken from the Federal Rule, the second sentence is new and is included as a result of the clear implication of subdivision (e) and of the holding in Garner v. Louisiana , 368 U.S. 157, 173- 74 (1961). In Garner, the Supreme Court rejected the contention of the State of Louisiana that the trial judge had taken judicial notice of certain evidence stating that: There is nothing in the records to indicate that the trial judge did in fact take judicial notice of anything. To extend the doctrine of judicial notice ... would require us to allow the prosecution to do through argument to this Court what it is required by due process to do at the trial, and would be to turn the doctrine into a pretext for dispensing with a trial of the facts of which the court is taking judicial notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of any opportunity to challenge the deductions drawn from such notice or to dispute the notoriety or truth of the facts allegedly relied upon. 368 U.S. at 173 ( d ) W h e n m a n d a t o r y . R u l e 2 0 1 ( d ) p r o v i d e s t h a t t h e m i l i t a r y judge shall take notice when requested to do so by a party who supplies the military judge with the necessary information. The military judge must take judicial notice only when the evidence is properly within this Rule, is relevant under Rule 401, and is not inadmissible under these Rules. (e) Opportunity to be heard; Time of taking notice; Instructing Members. Subdivisions (e), (f) and (g) of Rule 201 are taken from the Federal Rule without change. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. Former subsection (d) was subsumed into subsection (c) and the remaining subsections were renumbered accordingly. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 202 Judicial notice of law In general. Rule 201A is new. Not addressed by the Federal Rules of Evidence, the subject matter of the Rule is treated as a procedural matter in the Article III courts; see e.g., FED R. CRIM. P. 26.1. Adoption of a new evidentiary rule was thus required. Rule 201A is generally consistent in principle with Para. 147 a, MCM, 1969 (Rev.). Domestic law. Rule 201A(a) recognizes that law may constitute the adjudicative fact within the meaning of Rule 201(a) and requires that when that is the case, i.e., insofar as a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements of Rule 201 must be applied. When domestic law constitutes only a legislative fact, see the Analysis to Rule 201(a), the procedural requirements of Rule 201 may be utilized as a matter of discretion. For purposes of this Rule, it is i n t e n d e d t h a t “ d o m e s t i c l a w ” i n c l u d e : t r e a t i e s o f t h e U n i t e d States; executive agreements between the United States and any S t a t e t h e r e o f , f o r e i g n c o u n t r y o r i n t e r n a t i o n a l o r g a n i z a t i o n o r agency; the laws and regulations pursuant thereto of the United States, of the District of Columbia, and of a State, Common- wealth, or possession; international law, including the laws of war, general maritime law and the law of air and space; and the common law. This definition is taken without change from Para. 147 a except that references to the law of space have been added. “Regulations” of the United States include regulations of the armed forces. When a party requests that domestic law be noticed, or when the military judge sua sponte takes such notice, a copy of the applicable law should be attached to the record of trial unless the law in question can reasonably be anticipated to be easily availa- ble to any possible reviewing authority. 1984 Amendment: Subsection (a) was modified in 1984 to clarify that the requirements of Mil. R. Evid. 201(g) do not apply when judicial notice of domestic law is taken. Without this clari- fication, Mil. R. Evid. 201A could be construed to require the military judge to instruct the members that they could disregard a law which had been judicially noticed. This problem was dis- cussed in United States v. Mead , 16 M.J. 270 (C.M.A.1983). Foreign law. Rule 201A(b) is taken without significant change from FED R. CRIM. P 26.1 and recognizes that notice of foreign law may require recourse to additional evidence including testi- mony of witnesses. For purposes of this Rule, it is intended that “foreign law” include the laws and regulations of foreign coun- tries and their political subdivisions and of international organiza- t i o n s a n d a g e n c i e s . A n y m a t e r i a l o r s o u r c e r e c e i v e d b y t h e military judge for use in determining foreign law, or pertinent extracts therefrom, should be included in the record of trial as an exhibit. 2013 Amendment . Former Rule 201A was renumbered so that it now appears as Rule 202. In previous editions, Rule 202 did not exist and therefore no other rules were renumbered as a result of this change. The phrase “in accordance with Mil. R. Evid. 104” was added to subsection (b). This amendment clarifies that Rule 104 controls the military judge’s relevancy determination. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. SECTION III Exclusionary Rules and Related Matters Concerning Self-Incrimination, Search and Seizure, and Eyewitness Identification Military Rules of Evidence 301–306, 311–317, and 321 were new in 1980 and have no equivalent in the Federal Rules of Evidence. They represent a partial codification of the law relating to self- incrimination, confessions and admissions, search and seizure, and eye-witness identification. They are often rules of criminal procedure as well as evidence and have been located in this section due to their evidentiary significance. They replace Federal A22-5 App. 22, M.R.E. 202ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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Rules of Evidence 301 and 302 which deal with civil matters exclusively. The Committee believed it imperative to codify the material treated in Section III because of the large numbers of lay person- nel who hold important roles within the military criminal legal system. Non-lawyer legal officers aboard ship, for example, do not have access to attorneys and law libraries. In all cases, the Rules represent a judgement that it would be impracticable to operate without them. See Article 36. The Rules represent a compromise between specificity, intended to ensure stability and uniformity with the armed forces, and generality, intended usually to allow change via case law. In some instances they significantly change present procedure. See, e.g., Rule 304(d) (procedure for suppression motions relating to confessions and admissions). Rule 301 Privilege concerning compulsory self- incrimination (a) General rule. Rule 301(a) is consistent with the rule ex- pressed in the first paragraph, Para. 150 b of MCM, 1969 (Rev.), but omits the phrasing of the privileges and explicitly states that, as both variations apply, the accused or witness receives the protection of whichever privilege may be the more beneficial. The fact that the privilege extends to a witness as well as an accused is inherent within the new phrasing which does not distinguish between the two. The Rule states that the privileges are applicable only “to evidence of a testimonial or communicative nature,” Schmerber v. California, 384 U.S. 757, 761 (1966). The meaning of “tes- timonial or communicative” for the purpose of Article 31 of the Uniform Code of Military Justice is not fully settled. Past deci- sions of the Court of Military Appeals have extended the Article 31 privilege against self-incrimination to voice and handwriting exemplars and perhaps under certain conditions to bodily fluids. United States v. Ruiz , 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974). Because of the unsettled law in the area of bodily fluids, it is not the intent of the Committee to adopt any particular definition of “testimonial or communicative.” It is believed, however, that the decisions of the United States Supreme Court construing the Fifth Amendment, e.g., Schmerber v. California , 384 U.S. 757 (1966), should be persuasive in this area. Although the right against self- incrimination has a number of varied justifications, its primary purposes are to shield the individual’s thought processes from Government inquiry and to permit an individual to refuse to create evidence to be used against him. Taking a bodily fluid sample from the person of an individual fails to involve either concern. The fluid in question already exists; the individual’s actions are irrelevant to its seizure except insofar as the health and privacy of the individual can be further protected through his or her cooperation. No persuasive reason exists for Article 31 to be extended to bodily fluids. To the extent that due process issues are involved in bodily fluid extractions, Rule 312 provides ade- quate protections. The privilege against self-incrimination does not protect a per- son from being compelled by an order or forced to exhibit his or her body or other physical characteristics as evidence. Similarly, the privilege is not violated by taking the fingerprints of an individual, in exhibiting or requiring that a scar on the body be exhibited, in placing an individual’s feet in tracks, or by trying shoes or clothing on a person or in requiring the person to do so, or by compelling a person to place a hand, arm, or other part of the body under the ultra-violet light for identification or other purposes. The privilege is not violated by the use of compulsion in requiring a person to produce a record or writing under his or her control containing or disclosing incriminating matter when the record or writing is under control in a representative rather than a personal capacity as, for example, when it is in his or her control as the custodian for a non-appropriated fund. See, e.g., Para. 150 b of MCM, 1969 (Rev.); United States v. Sellers , 12 U.S.C.M.A. 2 6 2 , 3 0 C . M . R . 2 6 2 ( 1 9 6 1 ) ; U n i t e d S t a t e s v . H a s k i n s , 1 1 U.S.C.M.A. 365, 29 C.M.R. 181 (1960). (b) Standing. (1) In general. Rule 301(b)(1) recites the first part of the third paragraph of Para. 150 b, MCM, 1969 (Rev.) without change except that the present language indicating that neither counsel nor the court may object to a self-incriminating question put to the witness has been deleted as being unnecessary. (2) Judicial advice. A clarified version of the military judge’s responsibility under Para. 150 b of MCM, 1969 (Rev.) to warn an uninformed witness of the right against self-incrimination has been placed in Rule 301(b)(2). The revised procedure precludes counsel asking in open court that a witness be advised of his or her rights, a practice which the Committee deemed of doubtful propriety. (c) Exercise of the privilege. The first sentence of Rule 301(c) restates generally the first sentence of the second paragraph of Para. 150 b, MCM, 1969 (Rev.). The language “unless it clearly appears to the military judge” was deleted. The test involved is purely objective. The second sentence of Rule 301(c) is similar to the second and third sentences of the second paragraph of Para. 150 b but the language has been rephrased. The present Manual’s language states that the witness can be required to answer if for “any other reason, he can successfully object to being tried for any offense as to which the answer may supply information to incriminate him . . .” Rule 301(c) provides: “A witness may not assert the privilege if the witness is not subject to criminal penalty as a result of an answer by reason of immunity, running of the statute of limitations, or similar reason.” It is believed that the new language is simpler and more accurate as the privilege is properly defined in terms of consequence rather than in terms of “being tried.” In the absence of a possible criminal penalty, to include the mere fact of conviction, there is no risk of self-incrimination. It is not the intent of the Committee to adopt any particular definition of “criminal penalty.” It should be noted, however, that the courts have occasionally found that certain consequences that are technically non-criminal are so similar in effect that the privi- lege should be construed to apply. See e.g., Spevack v. Klein , 385 U.S. 511 (1967); United States v. Ruiz , 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974). Thus, the definition of “criminal penalty” may depend upon the facts of a given case as well as the applica- ble case law. It should be emphasized that an accused, unlike a witness, need not take the stand to claim the privilege. (1) Immunity generally. Rule 301(c)(1) recognizes that “tes- timonial” or “use plus fruits” immunity is sufficient to overcome t h e p r i v i l e g e a g a i n s t s e l f - i n c r i m i n a t i o n , c f . , U n i t e d S t a t e s v . Rivera, 1 M.J. 107 (C.M.A. 1975), reversing on other grounds, A22-6 App. 22, M.R.E. 202 APPENDIX 22
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49 C.M.R. 259 (A.C.M.R. 1974), and declares that such immunity is adequate for purposes of the Manual. The Rule recognizes that immunity may be granted under federal statutes as well as under provisions of the Manual. (2) Notification of immunity or leniency. The basic disclosure p r o v i s i o n o f R u l e 3 0 1 ( c ) ( 2 ) i s t a k e n f r o m U n i t e d S t a t e s v . Webster, 1 M.J. 216 (C.M.A. 1975). Disclosure should take place prior to arraignment in order to conform with the timing require- ments of Rule 304 and to ensure efficient trial procedure. (d) Waiver by a witness. The first sentence of Rule 301(d) re- peats without change the third sentence of the third paragraph of Para. 150 b of MCM, 1969 (Rev.). The second sentence of the Rule restates the second section of the present rule but with a minor change of wording. The present text reads: “The witness may be considered to have waived the privilege to this extent by having made the answer, but such a waiver will not extend to a rehearing or new or other trial,” while the new language is: “This limited waiver of the privilege applies only at the trial at which the answer is given, does not extend to a rehearing or new or other trial, and is subject to Rule 608(b).” (e) Waiver by the accused. Except for the reference to Rule 60 8(b), Rule 301 (e) generally restates the fourth sentence of the third rule of Para. 149 b(1), MCM, 1969 (Rev.). “Matters” was substituted for “issues” for purposes of clarity. The mere act of taking the stand does not waive the privilege. If an accused testifies on direct examination only as to matters not bearing upon the issue of guilt or innocence of any offense for which the accused is being tried, as in Rule 304 (f), the accused may not be cross-examined on the issue of guilt or innocence at all. See Para. 149 b (1), MCM, 1969 (Rev.) and Rule 608(b). The last sentence of the third rule of Para. 149 b(1), MCM, 1969 (Rev.) has been deleted as unnecessary. The Analysis state- ment above, “The mere act of taking the stand does not waive the privilege,” reinforces the fact that waiver depends upon the actual content of the accused’s testimony. The last sentence of Rule 301(e) restates without significant change the sixth sentence of the third rule of Para. 149 b(1), MCM, 1969 (Rev.). (f) Effect of claiming the privilege. (1) Generally. Rule 301(f)(1) is taken without change from the fourth rule of Para. 150 b, MCM, 1969 (Rev.). It should be noted that it is ethically improper to call a witness with the intent of having the witness claim a valid privilege against self-incrimina- tion in open court, see, e.g., ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, STAND- ARDS RELATING TO THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION, Prosecution Standard 3–5.7(c); De- fense Standard 4–7.6(c) (Approved draft 1979). Whether and to what extent a military judge may permit com- ment on the refusal of a witness to testify after his or her claimed reliance on the privilege against self-incrimination has been deter- mined by the judge to be invalid is a question not dealt with by the Rule and one which is left to future decisions for resolution. (2) On cross-examination. This provision is new and is in- tended to clarify the situation in which a witness who has testified fully on direct examination asserts the privilege against self-in- crimination on cross-examination. It incorporates the prevailing civilian rule, which has also been discussed in military cases. See e . g . , U n i t e d S t a t e s v . C o l o n - A t i e n z a , 2 2 U . S . C . M . A . 3 9 9 , 4 7 C.M.R. 336 (1973); United States v. Rivas , 3 M.J. 282 (C.M.A. 1977). Where the assertion shields only “collateral” matters— i . e . , e v i d e n c e o f m i n i m a l i m p o r t a n c e ( u s u a l l y d e a l i n g w i t h a rather distant fact solicited for impeachment purposes)—it is not appropriate to strike direct testimony. A matter is collateral when sheltering it would create little danger of prejudice to the accused. Where the privilege reaches the core of the direct testimony or prevents a full inquiry into the credibility of the witness, however, striking of the direct testimony would appear mandated. Cross- examination includes for the purpose of Rule 301 the testimony of a hostile witness called as if on cross-examination. See Rule 60 7. Depending upon the circumstances of the case, a refusal to strike the testimony of a Government witness who refuses to answer defense questions calculated to impeach the credibility of the witness may constitute prejudicial limitation of the accused’s right to cross-examine the witness. (3) Pretrial. Rule 301(f)(3) is taken generally from Para. 140 a (4), MCM, 1969 (Rev.) and follows the decisions of the United States Supreme Court in United States v. Hale , 422 U.S. 171 (1975) and Doyle v. Ohio , 426 U.S. 610 (1976). See also United States v. Brooks , 12 U.S.C.M.A. 423, 31 C.M.R. 9 (1961); United States v. McBride , 50 C.M.R. 126 (A.F.C.M.R. 1975). The prior Manual provision has been expanded to include a request to terminate questioning. ( g ) I n s t r u c t i o n s . R u l e 3 0 1 ( g ) h a s n o c o u n t e r p a r t i n t h e 1 9 6 9 Manual. It is designed to address the potential for prejudice that may occur when an accused exercises his or her right to remain silent. Traditionally, the court members have been instructed to disregard the accused’s silence and not to draw any adverse inference from it. However, counsel for the accused may deter- mine that this very instruction may emphasize the accused’s si- lence, creating a prejudicial effect. Although the Supreme Court has held that it is not unconstitutional for a judge to instruct a jury over the objection of the accused to disregard the accused’s silence, it has also stated: “It may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection.” Lakeside v. Oregon , 435 U.S. 333, 340-41 (1978). Rule 301(g) recognizes that the decision to ask for a cautionary instruction is one of great tactical importance for the defense and generally leaves that decision solely within the hands of the defense. Al- though the military judge may give the instruction when it is necessary in the interests of justice, the intent of the Committee is to leave the decision in the hands of the defense in all but the most unusual cases. See also Rule 105. The military judge may determine the content of any instruction that is requested to be given. (h) Miscellaneous. The last portion of paragraph 150 b, MCM, 1969 (Rev.), dealing with exclusion of evidence obtained in viola- tion of due process, has been deleted and its content placed in the new Rules on search and seizure. See e.g., Rule 312, Bodily Views and Intrusions. The exclusionary rule previously found in the last rule of Para. 150 b was deleted as being unnecessary in view of the general exclusionary rule in Rule 304. 2013 Amendment. In subsection (d), the word “answer” should be defined as “a witness’s . . . response to a question posed.” Black’s Law Dictionary 100 (8th ed. 2004). Subsection (d) only applies when the witness’s response to the question posed may be A22-7 App. 22, M.R.E. 301(h)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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incriminating. It does not apply when the witness desires to make a statement that is unresponsive to the question asked for the purpose of gaining protection from the privilege. Former subsections (d) and (f)(2) were combined; this change m a k e s t h e r u l e e a s i e r t o u s e . T h e i s s u e s t y p i c a l l y a r i s e chronologically in the course of a trial, because a witness often testifies on direct without asserting the privilege and then, during the ensuing cross-examination, asserts the privilege. Former subsection (b)(2) was moved to a discussion section; the drafters recommended this change because subsection (b)(2) addresses conduct rather than the admissibility of evidence. See s u p r a , G e n e r a l P r o v i s i o n s A n a l y s i s . T h e w o r d “ s h o u l d ” w a s changed to “may;” the drafters proposed this recommendation in light of CAAF’s holding in United States v. Bell , 44 M.J. 403 (C.A.A.F. 1996). In that case, CAAF held that Congress did not intend for Article 31(b) warnings to apply at trial, and noted that courts have the discretion, but not an obligation, to warn wit- nesses on the stand. Id. at 405-06. If a member testifies at an Article 32 hearing or court-martial without receiving Article 31(b) warnings, his or her Fifth Amendment rights have not been vio- lated and those statements can be used against him or her at subsequent proceedings. Id. In subsection (e), the phrase “concerning the issue of guilt or innocence” was removed; the drafters recommended this change because this subsection applies to the presentencing phase of the trial as well as the merits phase. The use of the term “concerning the issue of guilt or innocence” incorrectly implied that the sub- section only referred to the merits phase. The rule was renamed “Limited Waiver,” changed from “Waiver by the accused”; the drafters recommended this change to indicate that when an ac- cused who is on trial for two or more offenses testifies on direct as to only one of the offenses, he or she has only waived his or her rights with respect to that offense and no other. This subsec- tion was moved earlier in the rule and renumbered; the drafters recommended this change to address the issue of limited waivers earlier because of the importance of preserving the accused’s right against self-incrimination. The remaining subsections were renumbered as appropriate. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 302 Privilege concerning mental examination of an accused Introduction. The difficulty giving rise to Rule 302 and its conforming changes is a natural consequence of the tension be- tween the right against self-incrimination and the favored position occupied by the insanity defense. If an accused could place a defense expert on the stand to testify to his lack of mental respon- sibility and yet refuse to cooperate with a Government expert, it would place the prosecution in a disadvantageous position. The courts have attempted to balance the competing needs and have arrived at what is usually, although not always, an adequate compromise; when an accused has raised a defense of insanity through expert testimony, the prosecution may compel the ac- cused to submit to Government psychiatric examination on pain of being prevented from presenting any defense expert testimony ( o r o f s t r i k i n g w h a t e x p e r t t e s t i m o n y h a s a l r e a d y p r e s e n t e d ) . However, at trial the expert may testify only as to his or her conclusions and their basis and not as to the contents of any statements made by the accused during the examination. See e.g., United States v. Albright , 388 F.2d 719 (4th Cir. 1968); United States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39 (1969). See generally, Frederic Lederer, Rights Warnings in the Armed Serv- ices, 72 Mil. L. Rev. 1 (1976); Don Holladay, Pretrial Mental Examinations Under Military Law: A Re-Examination , 16 A.F. L. Rev. 14 (1974). This compromise, which originally was a product of case law, is based on the premise that raising an insanity defense is an implied partial waiver of the privilege against self- incrimination and has since been codified in the Federal Rules of Criminal Procedure, Fed. R. Crim. P. 12-2, and MCM, 1969 (Rev.). Para. 140 a, 122 b, 150 b. The compromise, however, does not fully deal with the problem in the military. In contrast to the civilian accused who is more likely to have access to a civilian doctor as an expert witness for the defense—a witness with no governmental status— the military accused nor- mally must rely upon the military doctors assigned to the local installation. In the absence of a doctor-patient privilege, anything said can be expected to enter usual Government medical channels. Once in those channels there is nothing in the present Manual that prevents the actual psychiatric report from reaching the prosecu- tion and release of such information appears to be common in contemporary practice. As a result, even when the actual commu- nications made by the accused are not revealed by the expert witness in open court, under the 1969 Manual they may be stud- ied by the prosecution and could be used to discover other evi- dence later admitted against the accused. This raises significant derivative evidence problems, cf. United States v. Rivera , 23 U.S.C.M.A. 430, 50 C.M.R. 389 (1975). One military judge’s attempt to deal with this problem by issuing a protective order was commended by the Court of Military Appeals in an opinion that contained a caveat from Judge Duncan that the trial judge may have exceeded his authority in issuing the order, United States v. Johnson , 22 U.S.C.M.A. 424, 47 C.M.R. 401 (1973). Further complicating this picture is the literal language of Arti- cle 31(b) which states, in part, that “No person subject to this chapter may ... request a statement from, an accused or a person suspected of an offense without first informing him ...” [of his rights]. Accordingly, a psychiatrist who complies with the literal meaning of Article 31(b) may effectively and inappropriately destroy the very protections created by Babbidge and related cases, while hindering the examination itself. At the same time, the validity of warnings and any consequent “waiver” under such circumstances is most questionable because Babbidge never con- sidered the case of an accused forced to choose between a waiver and a prohibited or limited insanity defense. Also left open by the present compromise is the question of what circumstances, if any, will permit a prosecutor to solicit the actual statements made by the suspect during the mental examination. In United States v. Frederick, 3 M.J. 230 (C.M.A. 1977), the Court of Military Ap- peals held that the defense counsel had opened the door via his questioning of the witness and thus allowed the prosecution a broader examination of the expert witness than would otherwise have been allowed. At present, what constitutes “opening the door” is unclear. An informed defense counsel must proceed with the greatest of caution being always concerned that what may be an innocent question may be considered to be an “open sesame.” Under the 1969 Manual interpretation of Babbidge, supra, the A22-8 App. 22, M.R.E. 301(h) APPENDIX 22
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accused could refuse to submit to a Government examination until after the actual presentation of defense expert testimony on the insanity issue. Thus, trial might have to be adjourned for a substantial period in the midst of the defense case. This was conducive to neither justice nor efficiency. A twofold solution to these problems was developed. Rule 302 provides a form of testimonial immunity intended to protect an accused from use of anything he might say during a mental examination ordered pursuant to Para. 121, MCM, 1969 (Rev.) (now R.C.M. 706, MCM, 1984). Paragraph 121 was modified to sharply limit actual disclosure of information obtained from the accused during the examination. Together, these provisions would adequately protect the accused from disclosure of any statements made during the examination. This would encourage the accused to cooperate fully in the examination while protecting the Fifth Amendment and Article 31 rights of the accused. Paragraph 121 was retitled to eliminate “Before Trial” and was thus made applicable before and during trial. Pursuant to para- graph 121, an individual’s belief or observations, reflecting possi- ble need for a mental examination of the accused, should have been submitted to the convening authority with immediate re- sponsibility for the disposition of the charges or, after referral, to the military judge or president of a special court-martial without a military judge. The submission could, but needed not, be accom- panied by a formal application for a mental examination. While the convening authority could act on a submission under para- graph 121 after referral, he or she might do so only when a military judge was not reasonably available. Paragraph 121 was revised to reflect the new test for insanity set forth in United States v. Frederick , 3 M.J. 230 (C.M.A. 1977), and to require sufficient information for the fact finder to be able to make an intelligent decision rather than necessarily relying solely upon an expert’s conclusion. Further questions, tailored to the individual case, could also be propounded. Thus, in an appro- priate case, the following might be asked: Did the accused, at the time of the alleged offense and as a result of such mental disease or defect, lack substantial capacity to (possess actual knowledge), (entertain a specific intent), (pre- meditate a design to kill)? What is the accused’s intelligence level? Was the accused under the influence of alcohol or other drugs at the time of the offense? If so, what was the degree of intoxica- tion and was it voluntary? Does the diagnosis of alcoholism, alcohol or drug induced organic brain syndrome, or pathologic intoxication apply? As the purpose of the revision of paragraph 121 and the crea- tion of Rule 302 was purely to protect the privilege against self- incrimination of an accused undergoing a mental examination related to a criminal case, both paragraph 121 and Rule 302 were inapplicable to proceedings not involving criminal consequences. The order to the sanity board required by paragraph 121 affects only members of the board and other medical personnel. Upon request by a commanding officer of the accused, that officer shall be furnished a copy of the board’s full report. The commander may then make such use of the report as may be appropriate (including consultation with a judge advocate) subject only to the restriction on release to the trial counsel and to Rule 302. The restriction is fully applicable to all persons subject to the Uniform Code of Military Justice. Thus, it is intended that the trial counsel receive only the board’s conclusions unless the defense should choose to disclose specific matter. The report itself shall be re- leased to the trial counsel, minus any statements made by the accused, when the defense raises a sanity issue at trial and utilizes an expert witness in its presentation. Rule 302(c). Although Rule 302(c) does not apply to determinations of the competency of the accused to stand trial, paragraph 121 did pro- hibit access to the sanity board report by the trial counsel except as specifically authorized. In the event that the competency of an accused to stand trial was at issue, the trial counsel could request, pursuant to paragraph 121, that the military judge disclose the sanity board report to the prosecution. In such a case, the trial counsel who had read the report would be disqualified from prosecuting the case in chief if Rule 302(a) were applicable. As indicated above, paragraph 121 required that the sanity board report be kept within medical channels except insofar as it would be released to the defense and, upon request, to the com- manding officer of the accused. The paragraph expressly prohib- ited any person from supplying the trial counsel with information relating to the contents of the report. Care should be taken not to misconstrue the intent of the provision. The trial counsel is dealt with specifically because in the normal case it is only the trial counsel who is involved in the preparation of the case at the stage at which a sanity inquiry is likely to take place. Exclusion of evidence will result, however, even if the information is provided to persons other than trial counsel if such information is the source of derivative evidence. Rule 302 explicitly allows suppres- sion of any evidence resulting from the accused’s statement to the sanity board, and evidence derivative thereof, with limited excep- tions as found in Rule 302. This is consistent with the theory behind the revisions which treats the accused’s communication to the sanity board as a form of coerced statement required under a form of testimonial immunity. For example, a commander who has obtained the sanity board’s report may obtain legal advice from a judge advocate, including the staff judge advocate, con- cerning the content of the sanity board’s report. If the judge advocate uses the information in order to obtain evidence against the accused or provides it to another person who used it to obtain evidence to be used in the case, Rule 302 authorizes exclusion. Commanders must take great care when discussing the sanity board report with others, and judge advocates exposed to the report must also take great care to operate within the Rule. (a) General Rule. Rule 302(a) provides that, absent defense offer, neither a statement made by the accused at a mental examination ordered under paragraph 121 nor derivative evidence thereof shall be received into evidence against the accused at trial on the merits or during sentencing when the Rule is applicable. This should be treated as a question of testimonial immunity for the purpose of determining the applicability of the exclusionary rule in the area. The Committee does not express an opinion as to whether statements made at such a mental examination or deriva- tive evidence thereof may be used in making an adverse determi- nation as to the disposition of the charges against the accused. Subject to Rule 302(b), Rule 302(a) makes statements made by an accused at a paragraph 121 examination (now in R.C.M. 70 6(c), MCM 1984) inadmissible even if Article 31 (b) and counsel warnings have been given. This is intended to resolve problems a r i s i n g f r o m t h e l i t e r a l i n t e r p r e t a t i o n o f A r t i c l e 3 1 d i s c u s s e d A22-9 App. 22, M.R.E. 302(a)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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above. It protects the accused and enhances the validity of the examination. (b) Exceptions. Rule 301(b) is taken from prior law; see Para. 122 b, MCM 1969 (Rev.). The waiver provision of Rule 30 2(b)(1) applies only when the defense makes explicit use of statements made by the accused to a sanity board or derivative evidence thereof. The use of lay testimony to present an insanity defense is not derivative evidence when the witness has not read the report. (c) Release of evidence. Rule 302(c) is new and is intended to provide the trial counsel with sufficient information to reply to an insanity defense raised via expert testimony. The Rule is so struc- tured as to permit the defense to choose how much information will be available to the prosecution by determining the nature of the defense to be made. If the accused fails to present an insanity defense or does so only through lay testimony, for example, the trial counsel will not receive access to the report. If the accused presents a defense, however, which includes specific incriminat- ing statements made by the accused to the sanity board, the military judge may order disclosure to the trial counsel of “such statement. . . as may be necessary in the interest of justice.” Inasmuch as the revision of paragraph 121 and the creation of Rule 302 were intended primarily to deal with the situation in which the accused denies committing an offense and only raises an insanity defense as an alternative defense, the defense may consider that it is appropriate to disclose the entire sanity report to the trial counsel in a case in which the defense concedes the commission of the offense but is raising as its sole defense the mental state of the accused. (d) Non-compliance by the accused. Rule 302(d) restates prior law and is in addition to any other lawful sanctions. As Rule 302 and the revised paragraph 121 adequately protect the accused’s right against self-incrimination at a sanity board, sanctions other than that found in Rule 302(d) should be statutorily and constitu- tionally possible. In an unusual case these sanctions might include prosecution of an accused for disobedience of a lawful order to cooperate with the sanity board. (e) Procedure. Rule 302(e) recognizes that a violation of para- graph 121 or Rule 302 is in effect a misuse of immunized tes- t i m o n y — t h e c o e r c e d t e s t i m o n y o f t h e a c c u s e d a t t h e s a n i t y board—and thus results in an involuntary statement which may be challenged under Rule 304. 2013 Amendment. This revision is stylistic. The drafters did not i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 303 Degrading questions Rule 303 restates Article 31(c). The content of Para. 150 a, MCM, 1969 (Rev.) has been omitted. A specific application of Rule 303 is in the area of sexual offenses. Under prior law, the victims of such offenses were often subjected to a probing and degrading cross-examination related to past sexual history— an examination usually of limited relevance at best. Rule 412 of the Military Rules of Evidence now prohibits such questioning, but Rule 412 is, however, not applicable to Article 32 hearings as it is only a rule of evidence; see Rule 1101. Rule 303 and Article 31(c) on the other hand, are rules of privi- lege applicable to all persons, military or civilian, and are thus fully applicable to Article 32 proceedings. Although Rule 303 (Article 31(c)) applies only to “military tribunals,” it is apparent that Article 31(c) was intended to apply to courts-of-inquiry, and implicitly to Article 32 hearings. The Uniform Code of Military Justice, Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 975 (1949). The Committee intends that the expression “military tribunals” in Rule 303 includes Article 32 hearings. Congress found the information now safeguarded by Rule 412 to be degrading. See e.g., Cong. Rec. H119944-45 (Daily ed. Oct. 10, 1978) (Remarks of Rep. Mann). As the material within the constitutional scope of Rule 412 is inadmissible at trial, it is thus not relevant let alone “material.” Consequently that data within the lawful coverage of Rule 412 is both immaterial and degrading and thus is within the ambit of Rule 303 (Article 31(c)). Rule 303 is therefore the means by which the substance of Rule 412 applies to Article 32 proceedings, and no person may be compelled to answer a question that would be prohibited by Rule 412. As Rule 412 permits a victim to refuse to supply irrelevant and misleading sexual information at trial, so too does the sub- stance of Rule 412 through Rule 303 permit the victim to refuse to supply such degrading information at an Article 32 for use by the defense or the convening authority. See generally Rule 412 and the Analysis thereto. It should also be noted that it would clearly be unreasonable to suggest that Congress in protecting the v i c t i m s o f s e x u a l o f f e n s e s f r o m t h e d e g r a d i n g a n d i r r e l e v a n t cross-examination formerly typical of sexual cases would have intended to permit the identical examination at a military prelimi- nary hearing that is not even presided over by a legally trained individual. Thus public policy fully supports the application of Article 31(c) in this case. 1993 Amendment: R.C.M. 405(i) and Mil. R. Evid. 1101(d) were amended to make the provisions of Mil. R. Evid. 412 appli- cable at pretrial investigations. These changes ensure that the same protections afforded victims of nonconsensual sex offenses at trial are available at pretrial hearings. See Criminal Justice Subcommittee of House Judiciary Committee Report, 94th Cong., 2d Session, July 29, 1976. Pursuant to these amendments, Mil. R. Evid. 412 should be applied in conjunction with Mil. R. Evid. 303. As such, no witness may be compelled to answer a question calling for a personally degrading response prohibited by Rule 303. Mil. R. Evid. 412, however, protects the victim even if the victim does not testify. Accordingly, Rule 412 will prevent ques- tioning of the victim or other witness if the questions call for responses prohibited by Rule 412. 2013 Amendment. This revision is stylistic and addresses ad- missibility rather than conduct. See supra , General Provisions Analysis. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 304 Confessions and admissions (a) General rule. The exclusionary rule found in Rule 304(a) is applicable to Rules 301–305, and basically restates prior law which appeared in paragraphs 140 a(6) and 150 b, MCM, 1969 (Rev.). Rule 304(b) does permit, however, limited impeachment use of evidence that is excludable on the merits. A statement that is not involuntary within the meaning of Rule 304(c)(3), Rule 30 A22-10 App. 22, M.R.E. 302(a) APPENDIX 22
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5(a) or Rule 302(a) is voluntary and will not be excluded under this Rule. The seventh paragraph of Para. 150 b of the 1969 Manual attempts to limit the derivative evidence rule to statements ob- tained through compulsion that is “applied by, or at the instigation or with the participation of, an official or agent of the United States, or any State thereof or political subdivision of either, who was acting in a governmental capacity. . . ” (emphasis added). Rule 304, however, makes all derivative evidence inadmissible. Although some support for the 1969 Manual limitations can be found in the literal phrasing of Article 31(d), the intent of the A r t i c l e a s i n d i c a t e d i n t h e c o m m e n t a r y p r e s e n t e d d u r i n g t h e House hearings, The Uniform Code of Military Justice, Hearing on H.R. 2498 Before a Subcomm. of the House Comm. on Armed S e r v i c e s , 8 1 s t C o n g . , 1 s t S e s s . 9 8 4 ( 1 9 4 9 ) , w a s t o e x c l u d e “evidence” rather than just “statements.” Attempting to allow admission of evidence obtained from statements which were the product of coercion, unlawful influence, or unlawful inducement would appear to be both against public policy and unnecessarily complicated. Similarly, the 1969 Manual’s attempt to limit the exclusion of derivative evidence to that obtained through compul- sion caused by “Government agents” has been deleted in favor of the simpler exclusion of all derivative evidence. This change, however, does not affect the limitation, as expressed in current case law, that the warning requirements apply only when the interrogating individual is either a civilian law enforcement offi- cer or an individual subject to the Uniform Code of Military Justice acting in an official disciplinary capacity or in a position of authority over a suspect or accused. The House hearings indi- cate that all evidence obtained in violation of Article 31 was to be excluded and all persons subject to the Uniform Code of Military Justice may violate Article 31(a). Consequently, the attempted 1969 Manual restriction could affect at most only derivative evi- dence obtained from involuntary statements compelled by private citizens. Public policy demands that private citizens not be en- couraged to take the law into their own hands and that law enforcement agents not be encouraged to attempt to circumvent an accused’s rights via proxy interrogation. It is clear that truly spontaneous statements are admissible as they are not “obtained” from an accused or suspect. An ap- parently volunteered statement which is actually the result of coercive circumstances intentionally created or used by interroga- tors will be involuntary. Cf. Brewer v. Williams , 430 U.S. 387 (1977), Rule 305(b)(2). Manual language dealing with this area has been deleted as being unnecessary. (b) Exceptions. Rule 304(b)(1) adopts Harris v. New York , 401 U.S. 222 (1971) insofar as it would allow use for impeachment or at a later trial for perjury, false swearing, or the making of a false official statement, or statements taken in violation of the counsel warnings required under Rule 305(d)-(e). Under Paras. 140 a(2) and 153b, MCM, 1969 (Rev.), use of such statements was not permissible. United States v. Girard , 23 U.S.C.M.A. 263, 49 C.M.R. 438 (1975); United States v. Jordan , 20 U.S.C.M.A. 614, 44 C.M.R. 44 (1971). The Court of Military Appeals has recog- nized expressly the authority of the President to adopt the holding in Harris on impeachment. Jordan, supra, 20 U.S.C.M.A. 614, 617, 44 C.M.R. 44, 47, and Rule 304(b) adopts Harris to military law. A statement obtained in violation of Article 31(b), however, remains inadmissible for all purposes, as is a statement that is otherwise involuntary under Rules 302, 304(b)(3), or 305(a). It was the intent of the Committee to permit use of a statement which is involuntary because the waiver of counsel rights under Rule 305(g) was absent or improper which is implicit in Rule 30 4(b)’s reference to Rule 305(d). 1986 Amendment: Rule 304(b)(2) was added to incorporate the “inevitable discovery” exception to the exclusionary rule based on Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984); see also United States v. Kozak , 12 M.J. 389 (C.M.A. 1982); Analysis of Rule 311(b)(2). 1990 Amendment: Subsection (b)(1) was amended by adding “the requirements of Mil. R. Evid. 305(c) and 305(f), or.” This language expands the scope of the exception and thereby permits statements obtained in violation of Article 31(b), UCMJ, and Mil. R. Evid. 305(c) and (f) to be used for impeachment purposes or at a later trial for perjury, false swearing, or the making of a false official statement. See Harris v. New York , 401 U.S. 222 (1971); cf. United States v. Williams , 23 M.J. 362 (C.M.A. 1987). An accused cannot pervert the procedural safeguards of Article 31(b) into a license to testify perjuriously in reliance on the Govern- ment’s disability to challenge credibility utilizing the traditional t r u t h - t e s t i n g d e v i c e s o f t h e a d v e r s a r y p r o c e s s . S e e W a l d e r v . United States , 347 U.S. 62 (1954); United States v. Knox , 396 U.S. 77 (1969). Similarly, when the procedural protections of Mil. R. Evid. 305(f) and Edwards v. Arizona , 451 U.S. 477 (1981), are violated, the deterrent effect of excluding the unlaw- fully obtained evidence is fully vindicated by preventing its use in the Government’s case-in-chief, but permitting its collateral use to impeach an accused who testifies inconsistently or perjuriously. See Oregon v. Hass , 420 U.S. 714 (1975). Statements which are not the product of free and rational choice, Greenwald v. Wiscon- sin , 390 U.S. 519 (1968), or are the result of coercion, unlawful influence, or unlawful inducements are involuntary and thus inad- missible, because of their untrustworthiness, even as impeachment evidence. See Mincey v. Arizona , 437 U.S. 385 (1978). 1994 Amendment: Rule 304(b)(1) adopts Harris v. New York , 401 U.S. 222 (1971), insofar as it would allow use for impeach- ment or at a later trial for perjury, false swearing, or the making of a false official statement, statements taken in violation of the counsel warnings required under Mil R. Evid. 305(d)-(e). Under paragraphs 140a(2) and 153b, MCM, 1969 (Rev.), use of such s t a t e m e n t s w a s n o t p e r m i s s i b l e . U n i t e d S t a t e s v . G i r a r d , 2 3 U.S.C.M.A. 263, 49 C.M.R. 438 (1975); United States v. Jordan , 20 U.S.C.M.A. 614, 44 C.M.R. 44 (1971). The Court of Military Appeals has recognized expressly the authority of the President to a d o p t t h e h o l d i n g i n H a r r i s o n i m p e a c h m e n t . J o r d a n , 2 0 U.S.C.M.A. at 617, 44 C.M.R. at 47, and Mil R. Evid. 304(b) adopts Harris in military law. Subsequently, in Michigan v. Har- vey, 494 U.S. 344 (1990), the Supreme Court held that statements taken in violation of Michigan v. Jackson , 475 U.S. 625 (1986), could also be used to impeach a defendant’s false and inconsistent testimony. In so doing, the Court extended the Fifth Amendment rationale of Harris to Sixth Amendment violations of the right to counsel. (c) Definitions. (1) Confession and admission. Rules 304(c)(1) and (2) express without change the definitions found in Para. 140 a(1), MCM, 1969 (Rev.). Silence may constitute an admission when it does not involve a reliance on the privilege against self-incrimination A22-11 App. 22, M.R.E. 304(c)(1)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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or related rights. Rule 301(f)(3). For example, if an imputation against a person comes to his or her attention under circumstances that would reasonably call for a denial of its accuracy if the imputation were not true, a failure to utter such a denial could possibly constitute an admission by silence. Note, however, in this regard, Rule 304(h)(3), and Rule 801(a)(2). (2) Involuntary. The definition of “involuntary” in Rule 304(c)(3) summarizes the prior definition of “not voluntary” as found in Para. 140 a(2), MCM, 1969 (Rev.). The examples in Para. 140 a(2) are set forth in this paragraph. A statement ob- tained in violation of the warning and waiver requirements of Rule 305 is “involuntary.” Rule 305(a). The language governing statements obtained through the use of “coercion, unlawful influence, and unlawful inducement,” found in Article 31(d) makes it clear that a statement obtained by any person, regardless of status, that is the product of such conduct is involuntary. Although it is unlikely that a private citizen may run afoul of the prohibition of unlawful influence or inducement, such a person clearly may coerce a statement and such coercion will yield an involuntary statement. A statement made by the accused during a mental examination ordered under Para. 121, MCM, 1969 (Rev.) (now R.C.M. 706, MCM, 1984) is treated as an involuntary statement under Rule 30 4. See Rule 302(a). The basis for this rule is that Para. 121 and Rule 302 compel the accused to participate in the Government examination or face a judicial order prohibiting the accused from presenting any expert testimony on the issue of mental responsi- bility. Insofar as Rule 304(c)(3) is concerned, some examples which may by themselves or in conjunction with others constitute coer- cion, unlawful influence, or unlawful inducement in obtaining a confession or admission are: Infliction of bodily harm including questioning accompanied by deprivation of the necessities of life such as food, sleep, or ade- quate clothing; Threats of bodily harm; Imposition of confinement or deprivation of privileges or ne- cessities because a statement was not made by the accused, or threats thereof if a statement is not made; Promises of immunity or clemency as to any offense allegedly committed by the accused; Promises of reward or benefit, or threats of disadvantage likely to induce the accused to make the confession or admission. There is no change in the principle, set forth in the fifth paragraph of Para. 140 a(2), MCM, 1969 (Rev.), that a statement obtained “in an interrogation conducted in accordance with all applicable rules is not involuntary because the interrogation was preceded by one that was not so conducted, if it clearly appears that all improper influences of the preceding interrogations had ceased to operate on the mind of the accused or suspect at the time that he or she made the statement.” In such a case, the effect of the involuntary statement is sufficiently attenuated to permit a determination that the latter statement was not “ obtained in viola- tion of” the rights and privileges found in Rule 304(c)(3) and 30 5(a) (emphasis added). 2016 Amendment : This change brings military practice in line with federal practice. See Opper v. United States , 348 U.S. 84 (1954) and Smith v. United States , 348 U.S. 147 (1954). (d) Procedure. Rule 304(d) makes a significant change in prior procedure. Under Para. 140 a(2), MCM, 1969 (Rev.), the prose- cution was required to prove a statement to be voluntary before it could be admitted in evidence absent explicit defense waiver. Rule 304(d) is intended to reduce the number of unnecessary objections to evidence on voluntariness grounds and to narrow what litigation remains by requiring the defense to move to sup- press or to object to evidence covered by this Rule. Failure to so move or object constitutes a waiver of the motion or objection. This follows civilian procedure in which the accused is provided an opportunity to assert privilege against self-incrimination and related rights but may waive any objection to evidence obtained in violation of the privilege through failure to object. ( 1 ) D i s c l o s u r e . P r i o r p r o c e d u r e ( P a r a . 1 2 1 , M C M , 1 9 6 9 (Rev.)) is changed to assist the defense in formulating its chal- lenges. The prosecution is required to disclose prior to arraign- ment all statements by the accused known to the prosecution which are relevant to the case (including matters likely to be relevant in rebuttal and sentencing) and within military control. Disclosure should be made in writing in order to prove compli- ance with the Rule and to prevent misunderstandings. As a gen- eral matter, the trial counsel is not authorized to obtain statements made by the accused at a sanity board, with limited exceptions. If the trial counsel has knowledge of such statements, they must be disclosed. Regardless of trial counsel’s knowledge, the defense is entitled to receive the full report of the sanity board. (2) Motions and objections. The defense is required under Rule 304(d)(2) to challenge evidence disclosed prior to arraignment under Rule 304(d)(1) prior to submission of plea. In the absence of a motion or objection prior to plea, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to challenge disclosed evidence waives the objection. This is a change from prior law under which objection traditionally has been made after plea but may be made, at the discretion of the military judge, prior to plea. This change brings military law into line with civilian federal proce- dure and resolves what is presently a variable and uncertain procedure. Litigation of a defense motion to suppress or an objection to a statement made by the accused or to any derivative evidence should take place at a hearing held outside the presence of the court members. See, e.g., Rule 104(c). (3) Specificity. Rule 304(d)(3) permits the military judge to require the defense to specify the grounds for an objection under Rule 304, but if the defense has not had adequate opportunity to interview those persons present at the taking of a statement, the military judge may issue an appropriate order including granting a continuance for purposes of interview or permitting a general objection. In view of the waiver that results in the event of failure to object, defense counsel must have sufficient information in order to decide whether to object to the admissibility of a state- ment by the accused. Although telephone or other long distance communications may be sufficient to allow a counsel to make an informed decision, counsel may consider a personal interview to be essential in this area and in such a case counsel is entitled to personally interview the witnesses to the taking of a statement before specificity can be required. When such an interview is desired but despite due diligence counsel has been unable to interview adequately those persons included in the taking of a statement, the military judge has authority to resolve the situation. A22-12 App. 22, M.R.E. 304(c)(1) APPENDIX 22
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Normally this would include the granting of a continuance for interviews, or other appropriate relief. If an adequate opportunity to interview is absent, even if this results solely from the witness’ unwillingness to speak to the defense, then the specificity require- ment does not apply. Lacking adequate opportunity to interview, the defense may be authorized to enter a general objection to the evidence. If a general objection has been authorized, the prosecu- tion must present evidence to show affirmatively that the state- ment was voluntary in the same manner as it would be required to do under prior law. Defense counsel is not required to meet the requirements of Para. 115, MCM, 1969 (Rev.), in order to dem- onstrate “due diligence” under the Rule. Nor shall the defense be required to present evidence to raise a matter under the Rule. The defense shall present its motion by offer of proof, but it may be required to present evidence in support of the motion should the prosecution first present evidence in opposition to the motion. If a general objection to the prosecution evidence is not author- ized, the defense may be required by Rule 304(d)(3) to make specific objection to prosecution evidence. It is not the intent of t h e C o m m i t t e e t o r e q u i r e e x t r e m e l y t e c h n i c a l p l e a d i n g , b u t enough specificity to reasonably narrow the issue is desirable. Examples of defense objections include but are not limited to one or more of the following non-exclusive examples: That the accused was a suspect but not given Article 31(b) or Rule 305(c) warnings prior to interrogation. That although 31(b) or Rule 305(c) warnings were given, c o u n s e l w a r n i n g s u n d e r R u l e 3 0 5 ( d ) w e r e n e c e s s a r y a n d n o t given (or given improperly). (Rule 305(d); United States v. Tem- pia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).) That despite the accused’s express refusal to make a statement, she was questioned and made an admission. ( see e.g., Rule 30 5(f); Michigan v. Mosely, 423 U.S. 96 (1975); United States v. Westmore, 17 U.S.C.M.A. 406, 38 C.M.R. 204 (1968).) That the accused requested counsel but was interrogated by the military police without having seen counsel. ( see e.g., Rule 30 5(a) and (d); United States v. Gaines, 21 U.S.C.M.A. 236, 45 C.M.R. 10 (1972).) That the accused was induced to make a statement by a promise of leniency by his squadron commander. ( see e.g., Rule 304(b)(3), Manual for Courts-Martial, United States, 1969 (Rev. ed.), Para 140a(2); People v. Pineda, 182 Colo. 388, 513 P.2d 452 (1973).) That an accused was threatened with prosecution of her husband if she failed to make a statement. ( see e.g., Rule 30 4(b)(3), Jarriel v. State, 317 So. 2d 141 (Fla. App. 1975).) That the accused was held incommunicado and beaten until she confessed. ( see e.g., Rule 304(b)(3); Payne v. Arkansas, 356 U.S. 560 (1958).) That the accused made the statement in question only be- cause he had previously given a statement to his division officer which was involuntary because he was improperly warned. ( see e.g., Rule 304(b)(3); United States v. Seay, 1 M.J. 201 (C.M.A. 1978).) Although the prosecution retains at all times the burden of proof in this area, a specific defense objection under this Rule must include enough facts to enable the military judge to deter- mine whether the objection is appropriate. These facts will be brought before the court via recital by counsel; the defense will not be required to offer evidence in order to raise the issue. If the prosecution concurs with the defense recital, the facts involved will be taken as true for purposes of the motion and evidence need not be presented. If the prosecution does not concur and the defense facts would justify relief if taken as true, the prosecution will present its evidence and the defense will then present its evidence. The general intent of this provision is to narrow the litigation as much as may be possible without affecting the prose- cution’s burden. In view of the Committee’s intent to narrow litigation in this area, it has adopted a basic structure in which the defense, when required by the military judge to object with specificity, has total responsibility in terms of what objection, if any, to raise under this Rule. (4) Rulings. Rule 304(d)(4) is taken without significant change from Federal Rule of Criminal Procedure 12(e). As a plea of guilty waives all self-incrimination or voluntariness objections, Rule 304(d)(5), it is contemplated that litigation of confession issues raised before the plea will be fully concluded prior to plea. Cases involving trials by military judge alone in which the ac- cused will enter a plea of not guilty are likely to be the only ones in which deferral of ruling is even theoretically possible. If the prosecution does not intend to use against the accused a statement challenged by the accused under this Rule but is unwilling to abandon any potential use of such statement, two options exist. First, the matter can be litigated before plea, or second, if the accused clearly intends to plead not guilty regardless of the mili- tary judge’s ruling as to the admissibility of the statements in question, the matter may be deferred until such time as the prose- cution indicates a desire to use the statements. (5) Effect of guilty plea. Rule 304(d)(5) restates prior law; see, e.g., United States v. Dusenberry , 23 U.S.C.M.A. 287, 49 C.M.R. 536 (1975). (e) Burden of proof. Rule 304(e) substantially changes military law. Under the prior system, the armed forces did not follow the rule applied in the civilian federal courts. Instead, MCM, 1969 ( R e v . ) u t i l i z e d t h e m i n o r i t y “ M a s s a c h u s e t t s R u l e , ” s o m e t i m e s known as the “Two Bite Rule.” Under this procedure the defense first raises a confession or admission issue before the military judge who determines it on a preponderance basis: if the judge determines the issue adversely to the accused, the defense may raise the issue again before the members. In such a case, the members must be instructed not to consider the evidence in ques- tion unless they find it to have been voluntary beyond a reasona- ble doubt. The Committee determined that this bifurcated system unnecessarily complicated the final instructions to the members to such an extent as to substantially confuse the important matters before them. In view of the preference expressed in Article 36 for the procedure used in the trial of criminal cases in the United States district courts, the Committee adopted the majority “Or- thodox Rule” as used in Article III courts. Pursuant to this proce- d u r e , t h e m i l i t a r y j u d g e d e t e r m i n e s t h e a d m i s s i b i l i t y o f confessions or admissions using a preponderance basis. No re- course exists to the court members on the question of admissibili- t y . I n t h e e v e n t o f a r u l i n g o n a d m i s s i b i l i t y a d v e r s e t o t h e accused, the accused may present evidence to the members as to voluntariness for their consideration in determining what weight to give to the statements in question. It should be noted that under the Rules the prosecution’s bur- den extends only to the specific issue raised by the defense under A22-13 App. 22, M.R.E. 304(e)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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Rule 304(d), should specificity have been required pursuant to Rule 304(d)(3). (1) In general. Rule 304(e)(1) requires that the military judge find by a preponderance that a statement challenged under this rule was made voluntarily. When a trial is before a special court- martial without a military judge, the ruling of the President of the court is subject to objection by any member. The President’s decision may be overruled. The Committee authorized use of this procedure in view of the importance of the issue and the absence of a legally trained presiding officer. (2) Weight of the evidence. Rule 304(e)(2) allows the defense to present evidence with respect to voluntariness to the members for the purpose of determining what weight to give the statement. When trial is by judge alone, the evidence received by the mili- tary judge on the question of admissibility also shall be consid- ered by the military judge on the question of weight without the necessity of a formal request to do so by counsel. Additional evidence may, however, be presented to the military judge on the matter of weight if counsel chooses to do so. (3) Derivative evidence. Rule 304(e)(3) recognizes that deriva- tive evidence is distinct from the primary evidence dealt with by Rule 304, i.e., statements. The prosecution may prove that not- withstanding an involuntary statement, the evidence in question was not “obtained by use of” it and is not derivative. February 1986 Amendment: Because of the 1986 addition of Rule 304(b)(2), the prosecution may prove that, notwithstanding an involuntary statement, derivative evidence is admissible under the “inevitable discovery” exception. The standard of proof is a preponderance of the evidence ( Nix v. Williams , 467 U.S. 431, 10 4 S.Ct. 2501 (1984)). (f) Defense evidence. Rule 304(f) generally restates prior law as found in Para. 140 a(3) & (6), MCM, 1969 (Rev.). Under this Rule, the defense must specify that the accused plans to take the stand under this subdivision. This is already normal practice and is intended to prevent confusion. Testimony given under this subdivision may not be used at the same trial at which it is given for any other purpose to include impeachment. The language, “the accused may be cross-examined only as to matter on which he or she so testifies” permits otherwise proper and relevant impeach- ment of the accused. See, e.g., Rule 607–609; 613. (g) Corroboration. Rule 304(g) restates the prior law of corrobo- ration with one major procedural change. Previously, no instruc- tion on the requirement of corroboration was required unless the evidence was substantially conflicting, self-contradictory, uncer- tain, or improbable and there was a defense request for such an i n s t r u c t i o n . U n i t e d S t a t e s v . S e i g l e , 2 2 U . S . C . M . A . 4 0 3 , 4 7 C.M.R. 340 (1973). The holding in Seigle in consistent with the 1969 Manual’s view that the issue of admissibility may be de- cided by the members, but it is inconsistent with the position taken in Rule 304(d) that admissibility is the sole responsibility of the military judge. Inasmuch as the Rule requires corroborating evidence as a condition precedent to admission of the statement, submission of the issue to the members would seem to be both unnecessary and confusing. Consequently, the Rule does not fol- low Seigle insofar as the case allows the issue to be submitted to the members. The members must still weigh the evidence when determining the guilt or innocence of the accused, and the nature of any corroborating evidence is an appropriate matter for the members to consider when weighing the statement before them. The corroboration rule requires only that evidence be admitted which would support an inference that the essential facts admitted in the statement are true. For example, presume that an accused charged with premeditated murder has voluntarily confessed that, intending to kill the alleged victim, she concealed herself so that she might surprise the victim at a certain place and that when the victim passed by, she plunged a knife in his back. At trial, the prosecution introduces independent evidence that the victim was found dead as a result of a knife wound in his back at the place where, according to the confession, the incident occurred. This fact would corroborate the confession because it would support an i n f e r e n c e o f t h e t r u t h o f t h e e s s e n t i a l f a c t s a d m i t t e d i n t h e confession. (h) Miscellaneous. (1) Oral statements. Rule 304(h)(1) is taken verbatim from 1969 Manual paragraph 140 a(6). It recognizes that although an oral statement may be transcribed, the oral statement is separate and distinct from the transcription and that accordingly the oral statement may be received into evidence without violation of the best evidence rule unless the specific writing is in question, see Rule 1002. So long as the oral statement is complete, no specific rule would require the prosecution to offer the transcription. The defense could of course offer the writing when it would constitute impeachment. (2) Completeness. Rule 304(h)(2) is taken without significant change from 1969 Manual paragraph 140 a(6). Although Rule 10 6 allows a party to require an adverse party to complete an otherwise incomplete written statement in an appropriate case, Rule 304(h)(2) allows the defense to complete an incomplete statement regardless of whether the statement is oral or in writing. As Rule 304(h)(2) does not by its terms deal only with oral statements, it provides the defense in this area with the option of using Rule 106 or 304(h)(2) to complete a written statement. (3) Certain admission by silence. Rule 304(h)(3) is taken from Para. 140 a(4) of the 1969 Manual. That part of the remainder of Para. 140 a(4) dealing with the existence of the privilege against self-incrimination is now set forth in Rule 301(f)(3). The remain- der of Para. 140 a(4) has been set forth in the Analysis to subdivision (d)(2), dealing with an admission by silence, or has been omitted as being unnecessary. 1986 Amendment: Mil. R. Evid. 304(h)(4) was added to make clear that evidence of a refusal to obey a lawful order to submit to a chemical analysis of body substances is admissible evidence when relevant either to a violation of such order or an offense which the test results would have been offered to prove. The Supreme Court in South Dakota v. Neville , 459 U.S. 553 (1983) held that where the government may compel an individual to submit to a test of a body substance, evidence of a refusal to submit to the test is constitutionally admissible. Since the results of tests of body substances are non-testimonial, a servicemember has no Fifth Amendment or Article 31 right to refuse to submit to such a test. United States v. Armstrong , 9 M.J. 374 (C.M.A. 1980); Schmerber v. State of California , 384 U.S. 757 (1966). A test of body substances in various circumstances, such as search incident to arrest, probable cause and exigent circumstances, and inspection or random testing programs, among others, is a reason- able search and seizure in the military. Murray v. Haldeman , 16 A22-14 App. 22, M.R.E. 304(e) APPENDIX 22
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M.J. 74 (C.M.A. 1983); Mil. R. Evid. 312; Mil. R. Evid. 313. Under the Uniform Code of Military Justice, a military order is a valid means to compel a servicemember to submit to a test of a body substance. Murray v. Haldeman, supra. Evidence of a re- fusal to obey such an order may be relevant as evidence of consciousness of guilt. People v. Ellis , 65 Cal.2d 529, 421 P.2d 393 (1966). See also State v. Anderson , Or.App., 631 P.2d 822 (1981); Newhouse v. Misterly , 415 F.2d 514 (9th Cir. 1969), cert. denied 397 U.S. 966 (1970). This Rule creates no right to refuse a lawful order. A ser- vicemember may still be compelled to submit to the test. See, e.g., Mil. R. Evid. 312. Any such refusal may be prosecuted separately for violation of an order. 2013 Amendment. Former subsection (c), which contains defi- nitions of words used throughout the rule, was moved; it now immediately follows subsection (a) and is highly visible to the practitioner. Former subsection (h)(3), which discusses denials, was moved to subsection (a)(2); it is now included near the beginning of the rule and highlights the importance of an ac- cused’s right to remain silent. The remaining subsections were moved and renumbered; the rule now generally follows the chro- nology of how the issues might arise at trial. The drafters did not intend to change any result in any ruling on evidence admissibili- ty. In subsection (b), the term “allegedly” was added. The term references derivative evidence and clarifies that evidence is not derivative unless a military judge finds, by a preponderance of the evidence, that it is derivative. In subsections (c)(5), (d), (f)(3)(A), and (f)(7), the word “shall” was replaced with “will” or “must.” The drafters agree with the approach of the Advisory Committee on Evidence Rules to mini- mize the use of words such as “shall” because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 305 Warnings About Rights (a) General Rule. Rule 305(a) makes statements obtained in vio- lation of Rule 305, e.g., statements obtained in violation of Arti- cle 31(b) and the right to counsel, involuntary within the meaning of Rule 304. This approach eliminates any distinction between statements obtained in violation of the common law voluntariness doctrine (which is, in any event, included within Article 31(d) and those statements obtained in violation, for example, of Miranda (Miranda v. Arizona , 384 U.S. 436 (1966) warning requirements). This is consistent with the approach taken in the 1969 Manual, e.g., Para. 140 a(2). (b) Definitions. (1) Persons subject to the Uniform Code of Military Justice. Rule 305(b)(1) makes it clear that under certain conditions a civilian may be a “person subject to the Uniform Code of Mili- tary Justice” for purposes of warning requirements, and would be required to give Article 31(b) (Rule 305(c)) warnings. See, gener- ally, United States v. Penn , 18 U.S.C.M.A. 194, 39 C.M.R. 194 (1969). Consequently civilian members of the law enforcement agencies of the Armed Forces, e.g., the Naval Investigative Serv- ice and the Air Force Office of Special Investigations, will have to give Article 31 (Rule 305(c)) warnings. This provision is taken in substance from Para. 140 a(2) of the 1969 Manual. (2) Interrogation. Rule 305(b)(2) defines interrogation to in- clude the situation in which an incriminating response is either sought or is a reasonable consequence of such questioning. The definition is expressly not a limited one and interrogation thus includes more than the putting of questions to an individual. See e.g., Brewer v. Williams , 430 U.S. 387 (1977). The Rule does not specifically deal with the situation in which an “innocent” question is addressed to a suspect and results unex- pectedly in an incriminating response which could not have been foreseen. This legislative history and the cases are unclear as to w h e t h e r A r t i c l e 3 1 a l l o w s n o n i n c r i m i n a t i n g q u e s t i o n i n g . S e e Frederic Lederer, Rights, Warnings in the Armed Services, 72 Mil. L. Rev. 1, 32-33 (1976), and the issue is left open for further development. (c) Warnings concerning the accusation, right to remain silent, and use of statement. Rule 305(c) basically requires that those persons who are required by statute to give Article 31(b) warn- ings give such warnings. The Rule refrains from specifying who must give such warnings in view of the unsettled nature of the case law in the area. It was not the intent of the Committee to adopt any particular interpretation of Article 31(b) insofar as who must give warnings except as provided in Rule 305(b)(1) and the Rule explicitly defers to Article 31 for the purpose of determining who must give warnings. The Committee recognized that numerous decisions of the Court of Military Appeals and its subordinate courts have dealt with this issue. These courts have rejected literal application of Article 31(b), but have not arrived at a conclusive rule. See e.g., United States v. Dohle , 1 M.J. 223 (C.M.A. 1975). The Committee was of the opinion, however, that both Rule 305(c) and Article 31(b) should be construed at a minimum, and in compliance with numerous cases, as requiring warnings by those personnel acting in an official disciplinary or law enforcement capacity. Decisions such as United States v. French , 25 C.M.R. 851 (A.F.B.R. 1958), aff’d in relevant part, 10 U.S.C.M.A. 171, 27 C.M.R. 245 (1959) (undercover agent) are not affected by the Rule. Spontaneous or volunteered statements do not require warnings under Rule 305. The fact that a person may have known of his or her rights under the Rule is of no importance if warnings were required but not given. Normally, neither a witness nor an accused need to be warned under any part of this Rule when taking the stand to testify at a trial by court-martial. See, however, Rule 801(b)(2). The Rule requires in Rule 305(c)(2) that the accused or suspect be advised that he or she has the “right to remain silent” rather than the statutory Article 31(b) warning which is limited to si- lence on matters relevant to the underlying offense. The new language was inserted upon the suggestion of the Department of Justice in order to provide clear advice to the accused as to the absolute right to remain silent. See Miranda v. Arizona, 384 U.S. 436 (1966). (d) Counsel rights and warnings. Rule 305(d) provides the basic right to counsel at interrogations and requires that an accused or suspect entitled to counsel at an interrogation be warned of that fact. The Rule restates the basic counsel entitlement for custodial A22-15 App. 22, M.R.E. 305(d)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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interrogations found in both Para. 140 c(2), MCM, 1969 (Rev.), and United States v. Tempia , 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and recognizes that the right to counsel attaches after certain procedural steps have taken place. (1) General rule. Rule 305(d)(1) makes it clear that the right to counsel only attaches to an interrogation in which an individual’s Fifth Amendment privilege against self-incrimination is involved. This is a direct result of the different coverages of the statutory and constitutional privileges. The Fifth Amendment to the Consti- tution of the United States is the underpinning of the Supreme Court’s decision in Miranda v. Arizona , 384 U.S. 436 (1966) which is in turn the origin of the military right to counsel at an interrogation. United States v. Tempia , 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). Article 31, on the other hand, does not pro- vide any right to counsel at an interrogation; but see United States v. McOmber, 1 M.J. 380 (C.M.A. 1976). Consequently, interroga- tions which involve only the Article 31 privilege against self- incrimination do not include a right to counsel. Under present law such interrogations include requests for voice and handwriting samples and perhaps request for bodily fluids. Compare United States v. Dionivio , 410 U.S. 1 (1973); United States v. Mara , 410 U . S . 1 9 ( 1 9 7 3 ) ; a n d S c h m e r b e r v . C a l i f o r n i a , 3 8 4 U . S . 7 5 7 ( 1 9 6 7 ) w i t h U n i t e d S t a t e s v . W h i t e , 1 7 U . S . C . M . A . 2 1 1 , 3 8 C.M.R. 9 (1967); United States v. Greer , 3 U.S.C.M.A. 576, 13 C.M.R. 132 (1953); and United States v. Ruiz , 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974). Rule 305(d)(1) requires that an indi- vidual who is entitled to counsel under the Rule be advised of the nature of that right before an interrogation involving evidence of a testimonial or communicative nature within the meaning of the Fifth Amendment (an interrogation as defined in Rule 305(d)(2) and modified in this case by Rule 305(d)(1)) may lawfully pro- ceed. Although the Rule does not specifically require any particu- lar wording or format for the right to counsel warning, reasonable specificity is required. At a minimum, the right to counsel warn- ing must include the following substantive matter: (1) That the accused or suspect has the right to be repre- sented by a lawyer at the interrogation if he or she so desires; (2) That the right to have counsel at the interrogation in- cludes the right to consult with counsel and to have counsel at the interrogation; (3) That if the accused or suspect so desires, he or she will have a military lawyer appointed to represent the accused or suspect at the interrogation at no expense to the individual, and the accused or suspect may obtain civilian counsel at no expense to the Government in addition to or instead of free military counsel. It is important to note that those warnings are in addition to such other warnings and waiver questions as may be required by Rule 305. Rule 305(d)(1)(A) follows the plurality of civilian jurisdiction by utilizing an objective test in defining “custodial” interrogation. See also United States v. Temperley , 22 U.S.C.M.A. 383, 47 C.M.R. 235 (1978). Unfortunately, there is no national consensus as to the exact nature of the test that should be used. The lan- guage used in the Rule results from an analysis of Miranda v. Arizona, 384 U.S. 436 (1966) which leads to the conclusion that M i r a n d a i s p r e d o m i n a t e l y a v o l u n t a r i n e s s d e c i s i o n c o n c e r n e d with the effects of the psychological coercion inherent in official questioning. See e.g., Frederic Lederer, Miranda v. Arizona—The Law Today, 78 Mil. L. Rev. 107, 130 (1977). The variant chosen adopts an objective test that complies with Miranda’s intent by using the viewpoint of the suspect. The objective nature of the test, however, makes it improbable that a suspect would be able to claim a custodial status not recognized by the interrogator. The test makes the actual belief of the suspect irrelevant because of the belief that it adds nothing in practice and would unnecessarily lengthen trial. Rule 305(d)(1)(B) codifies the Supreme Court’s decisions in Brewer v. Williams , 480 U.S. 387 (1977) and Massiah v. United States, 377 U.S. 201 (1964). As modified by Brewer, Massiah requires that an accused or suspect be advised of his or her right to counsel prior to interrogation, whether open or surreptitious, if that interrogation takes place after either arraignment or indict- ment. As the Armed Forces lack any equivalent to those civilian procedural points, the initiation of the formal military criminal process has been utilized as the functional equivalent. According- ly, the right to counsel attaches if an individual is interrogated after preferral of charges or imposition of pretrial arrest, restric- tion, or confinement. The right is not triggered by apprehension or temporary detention. Undercover investigation prior to the for- mal beginning of the criminal process will not be affected by this, but jailhouse interrogations will generally be prohibited. Compare Rule 305(d)(1)(B) with United States v. Hinkson , 17 U.S.C.M.A. 1 2 6 , 3 7 C . M . R . 3 9 0 ( 1 9 6 7 ) a n d U n i t e d S t a t e s v . G i b s o n , 3 U.S.C.M.A. 746, 14 C.M.R. 164 (1954). 1994 Amendment: Subdivision (d) was amended to conform military practice with the Supreme Court’s decision in McNeil v. Wisconsin, 501 U.S. 171 (1991). In McNeil, the Court clarified the distinction between the Sixth Amendment right to counsel and the Fifth Amendment right to counsel. The court reiterated that the Sixth Amendment right to counsel does not attach until the initiation of adversary proceedings. In the military, the initiation of adversary proceedings normally occurs at preferral of charges. See United States v. Jordan , 29 M.J. 177, 187 (C.M.A. 1989); United States v. Wattenbarger , 21 M.J. 41, 43 (C.M.A. 1985), cert. denied , 477 U.S. 904 (1986). However, it is possible that, under unusual circumstances, the courts may find that the Sixth Amendment right attaches prior to preferral. See Wattenbarger , 21 M.J. at 43-44. Since the imposition of conditions on liberty, r e s t r i c t i o n , a r r e s t , o r c o n f i n e m e n t d o e s n o t t r i g g e r t h e S i x t h Amendment right to counsel, references to these events were eliminated from the rule. These events may, however, be offered as evidence that the government has initiated adversary proceed- ings in a particular case. (2) Counsel. Rule 305(d)(2) sets forth the basic right to coun- sel at interrogations required under 1969 Manual Para. 140 a(2). The Rule rejects the interpretation of Para. 140 a(2) set forth in United States v. Hofbauer , 5 M.J. 409 (C.M.A. 1978) and United States v. Clark , 22 U.S.C.M.A. 570, 48 C.M.R. 77 (1974) which held that the Manual only provided a right to military counsel at an interrogation in the event of financial indigency. Rule 305(d)(2) clarifies prior practice insofar as it explicitly indicates that no right to individual military counsel of the sus- pect’s or accused’s choice exists. See e.g., United States v. Wil- cox, 3 M.J. 803 (A.C.M.R. 1977). (e) Notice to Counsel. Rule 305(e) is taken from United States v. McOmber, 1 M.J. 380 (C.M.A. 1976). The holding of that case A22-16 App. 22, M.R.E. 305(d) APPENDIX 22
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has been expanded slightly to clarify the situation in which an interrogator does not have actual knowledge that an attorney has been appointed for or retained by the accused or suspect with respect to the offenses, but reasonably should be so aware. In the absence of the expansion, present law places a premium on law enforcement ignorance and has the potential for encouraging per- jury. The change rejects the view expressed in United States v. Roy, 4 M.J. 840 (A.C.M.R. 1978) which held that in the absence of bad faith a criminal investigator who interviewed the accused one day before the scheduled Article 32 investigation was not in violation of McOmber because he was unaware of the appoint- ment of counsel. Factors which may be considered in determining whether an interrogator should have reasonably known that an individual had counsel for purposes of this Rule include: Whether the interrogator knew that the person to be questioned had requested counsel; Whether the interrogator knew that the person to be questioned had already been involved in a pretrial proceeding at which he would ordinarily be represented by counsel; Any regulations governing the appointment of counsel; Local standard operating procedures; The interrogator’s military assignment and training; and The interrogator’s experience in the area of military criminal procedure. The standard involved is purely an objective one. 1994 Amendment: Subdivision (e) was amended to conform military practice with the Supreme Court’s decisions in Minnick v. Mississippi, 498 U.S. 146 (1990), and McNeil v. Wisconsin , 50 1 U.S. 171 (1991). Subdivision (e) was divided into two sub- paragraphs to distinguish between the right to counsel rules under the Fifth and Sixth Amendments and to make reference to the new waiver provisions of subdivision (g)(2). Subdivision (e)(1) applies an accused’s Fifth Amendment right to counsel to the military and conforms military practice with the Supreme Court’s decision in Minnick. In that case, the Court determined that the Fifth Amendment right to counsel protected by Miranda v. Arizo- na, 384 U.S. 436 (1966), and Edwards v. Arizona , 451 U.S. 477 (1981), as interpreted in Arizona v. Roberson , 486 U.S. 675 (1988), requires that when a suspect in custody requests counsel, interrogation shall not proceed unless counsel is present. Govern- ment officials may not reinitiate custodial interrogation in the absence of counsel whether or not the accused has consulted with his attorney. Minnick, 498 U.S. at 150-152. This rule does not apply, however, when the accused or suspect initiates reinterroga- tion regardless of whether the accused is in custody. Minnick, 498 U.S. at 154-55; Roberson, 486 U.S. at 677. The impact of a waiver of counsel rights upon the Minnick rule is discussed in the analysis to subdivision (g)(2) of this rule. Subdivision (e)(2) fol- lows McNeil and applies the Sixth Amendment right to counsel to military practice. Under the Sixth Amendment, an accused is entitled to representation at critical confrontations with the gov- ernment after the initiation of adversary proceedings. In accord- ance with McNeil, the amendment recognizes that this right is offense-specific and, in the context of military law, that it nor- mally attaches when charges are preferred. See United States v. Jordan, 29 M.J. 177, 187 (C.M.A. 1989); United States v. Wat- tenbarger, 21 M.J. 41 (C.M.A. 1985), cert. denied, 477 U.S. 904 (1986). Subdivision (e)(2) supersedes the prior notice to counsel rule. The prior rule, based on United States v. McOmber , 1 M.J. 380 (C.M.A. 1976), is not consistent with Minnick and McNeil. Despite the fact that McOmber was decided on the basis of Article 27, U.C.M.J., the case involved a Sixth Amendment claim by the defense, an analysis of the Fifth Amendment decisions of Miranda v. Arizona , 384 U.S. 436 (1966), and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and the Sixth Amendment decision of Massiah v. United States , 377 U.S. 201 (1964). Moreover, the McOmber rule has been applied to claims based on violations of both the Fifth and Sixth Amendments. See, e.g. United States v. Fassler , 29 M.J. 193 (C.M.A. 1989). Minnick and McNeil reexamine the Fifth and Sixth Amendment decisions central to the McOmber decision; the amendments to subdivision (e) are the result of that reexamination. (f) Exercise of rights. Rule 305(f) restates prior law in that it requires all questioning to cease immediately upon the exercise of either the privilege against self-incrimination or the right to coun- sel. See Michigan v. Mosely , 423 U.S. 96 (1975). The Rule expressly does not deal with the question of whether or when questioning may be resumed following an exercise of a suspect’s rights and does not necessarily prohibit it. The Committee notes that both the Supreme Court, see e.g., Brewer v. Williams , 480 U.S. 387 (1977); Michigan v. Mosely , 423 U.S. 96 (1975), and the Court of Military Appeals, see, e.g., United States v. Hill , 5 M.J. 114 (C.M.A. 1978); United States v. Collier , 1 M.J. 358 (C.M.A. 1976) have yet to fully resolve this matter. 1994 Amendment: The amendment to subdivision (f) clarifies the distinction between the rules applicable to the exercise of the privilege against self-incrimination and the right to counsel. Mich- igan v. Mosley , 423 U.S. 96 (1975). See also United States v. Hsu, 852 F.2d 407, 411 n.3 (9th Cir. 1988). The added language, contained in (f)(2), is based on Minnick v. Mississippi , 498 U.S. 146 (1990), and McNeil v. Wisconsin , 501 U.S. 171 (1991). Con- sequently, when a suspect or an accused undergoing interrogation exercises the right to counsel under circumstances provided for under subdivision (d)(l) of this rule, (f)(2) applies the rationale of Minnick and McNeil requiring that questioning must cease until counsel is present. (g) Waiver. The waiver provision of Rule 305(g) restates current military practice and is taken in part from Para. 140 a(2) of the 1969 Manual. Rule 305(g)(1) sets forth the general rule for waiver and fol- lows Miranda v. Arizona , 384 U.S. 436, 475 (1966). The Rule requires that an affirmative acknowledgment of the right be made before an adequate waiver may be found. Thus, three waiver questions are required under Rule 305(g): Do you understand your rights? Do you want a lawyer? Are you willing to make a statement? The specific wording of the questions is not detailed by the Rule and any format may be used so long as the substantive content is present. Notwithstanding the above, Rule 305(g)(2), following North Carolina v. Butler , 441 U.S. 369 (1979), recognizes that the right to counsel, and only the right to counsel, may be waived even absent an affirmative declination. The burden of proof is on the A22-17 App. 22, M.R.E. 305(g)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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prosecution in such a case to prove by a preponderance of the evidence that the accused waived the right to counsel. The second portion of Rule 305(g)(2) dealing with notice to counsel is new. The intent behind the basic notice provision, Rule 305(e), is to give meaning to the right to counsel by preventing interrogators who know or reasonably should know an individual has counsel from circumventing the right to counsel by obtaining a waiver from that person without counsel present. Permitting a Miranda type waiver in such a situation clearly would defeat the purpose of the Rule. Rule 305(g)(2) thus permits a waiver of the right to counsel when notice to counsel is required only if it can be demonstrated either that the counsel, after reasonable efforts, could not be notified, or that the counsel did not attend the interrogation which was scheduled within a reasonable period of time after notice was given. A statement given by an accused or suspect who can be shown to have his rights as set forth in this Rule and who intentionally frustrated the diligent attempt of the interrogator to comply with this Rule shall not be involuntary solely for failure to comply with the rights warning requirements of this Rule or of the waiver requirements. United States v. Sikorski , 21 U.S.C.M.A. 345, 45 C.M.R. 119 (1972). 1994 Amendment: The amendment divided subdivision (2) into three sections. Subsection (2)(A) remains unchanged from the first sentence of the previous rule. Subsection (2)(B) is new and conforms military practice with the Supreme Court’s decision in Minnick v. Mississippi , 498 U.S. 146 (1990). In that case, the Court provided that an accused or suspect can validly waive his Fifth Amendment right to counsel, after having previously exer- cised that right at an earlier custodial interrogation, by initiating the subsequent interrogation leading to the waiver. Id. at 156. This is reflected in subsection (2)(B)(i). Subsection (2)(B)(ii) es- tablishes a presumption that a coercive atmosphere exists that invalidates a subsequent waiver of counsel rights when the re- quest for counsel and subsequent waiver occur while the accused or suspect is in continuous custody. See McNeil v. Wisconsin , 501 U.S. 171 (1991); Arizona v. Roberson , 486 U.S. 675 (1991). The presumption can be overcome when it is shown that there oc- curred a break in custody which sufficiently dissipated the coer- c i v e e n v i r o n m e n t . S e e U n i t e d S t a t e s v . S c h a k e , 3 0 M . J . 3 1 4 (C.M.A. 1990). Subsection (2)(C) is also new and conforms military practice with the Supreme Court’s decision in Michigan v. Jackson , 475 U.S. 625, 636 (1986). In Jackson, the Court provided that the accused or suspect can validly waive his or her Sixth Amendment right to counsel, after having previously asserted that right, by initiating the subsequent interrogation leading to the waiver. The Court differentiated between assertions of the Fifth and Sixth Amendment right to counsel by holding that, while exercise of the former barred further interrogation concerning the same or other offenses in the absence of counsel, the Sixth Amendment protection only attaches to those offenses as to which the right was originally asserted. In addition, while continuous custody would serve to invalidate a subsequent waiver of a Fifth Amend- ment right to counsel, the existence or lack of continuous custody is irrelevant to Sixth Amendment rights. The latter vest once formal proceedings are instituted by the State and the accused asserts his right to counsel, and they serve to insure that the accused is afforded the right to counsel to serve as a buffer between the accused and the State. (h) Non-military interrogations. Para. 140 a(2) of the 1969 Man- ual, which governed civilian interrogations of military personnel basically restated the holding of Miranda v. Arizona , 384 U.S. 436 (1966). Recognizing that the Supreme Court may modify the Miranda rule, the Committee has used the language in Rule 305(h)(1) to make practice in this area dependent upon the way the Federal district courts would handle such interrogations. See Article 36. Rule 305(h)(2) clarifies the law of interrogations as it relates to interrogations conducted abroad by officials of a foreign govern- ment or their agents when the interrogation is not conducted, instigated, or participated in by military personnel or their agents. Such an interrogation does not require rights warnings under subdivisions (c) or (d) or notice to counsel under subdivision (e). The only test to be applied in such a case is that of common law voluntariness: whether a statement obtained during such an inter- rogation was obtained through the use of “coercion, unlawful influence, or unlawful inducement.” Article 31(d). Whether an interrogation has been “conducted, instigated, or participated in by military personnel or their agents” is a question of fact depending on the circumstances of the case. The Rule makes it clear that a United States personnel do not participate in an interrogation merely by being present at the scene of the interrogation, see United States v. Jones , 6 M.J. 226 (C.M.A. 1979) and the Analysis to Rule 311(c), or by taking steps which are in the best interests of the accused. Also, an interrogation is not “participated in” by military personnel or their agents who act as interpreters during the interrogation if there is no other partici- pation. See Rule 311(c). The omission of express reference to interpreters in Rule 305(h)(2) was inadvertent. 2013 Amendment. The definition of “person subject to the code” was revised. The change clarifies that the rule includes a person acting as a knowing agent only in subsection (c). Subsec- tion (c) covers the situation where a person subject to the code is interrogating an accused, and therefore an interrogator would in- clude a knowing agent of a person subject to the code, such as local law enforcement acting at the behest of a military investiga- tor. The term “person subject to the code” is also used in subsec- tion (f), which discusses a situation in which a person subject to the code is being interrogated. If an agent of a person subject to the code is being interrogated, subsection (f) is inapplicable, un- less that agent himself or herself is subject to the code and is suspected of an offense. The definition of “custodial interrogation” was moved to sub- section (b) from subsection (d) and the definitions are now co- located. The definition is derived from Miranda v. Arizona , 384 U.S. 436, 444-45 (1966), and Berkemer v. McCarty, 468 U.S. 420 , 442 (1984). “ A c c u s e d ” i s d e f i n e d a s “ [ a ] p e r s o n a g a i n s t w h o m l e g a l proceedings have been initiated.” Black’s Law Dictionary 23 (8th ed. 2004). “Suspect” is defined as “[a] person believed to have committed a crime or offense.” Id. at 1486. In subsection (c)(1), the drafters recommended using the word “accused” in the first sentence because the rule generally addresses the admissibility of a statement at a court-martial at which legal proceedings have been initiated against the individual. Throughout the remainder of the rule, the drafters recommended using “accused” and “suspect” A22-18 App. 22, M.R.E. 305(g) APPENDIX 22
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together to elucidate that an interrogation that triggers the need for Article 31 warnings will often take place before the individual has become an accused and is still considered only a suspect. Although not specifically outlined in subsection (c), interroga- tors and investigators should fully comply with the requirements of Miranda. When a suspect is subjected to custodial interroga- tion, the prosecution may not use statements stemming from that custodial interrogation unless it demonstrates that the suspect was warned of his or her rights. 384 U.S. at 444. At a minimum, Miranda requires that “the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defend- ant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Id. A person sub- ject to the code who is being interrogated may be entitled to both Miranda warnings and Article 31(b) warnings, depending on the circumstances. The titles of subsections (c)(2) and (c)(3) were changed to “Fifth Amendment Right to Counsel” and “Sixth Amendment Right to Counsel” respectively; the drafters recommended this change because practitioners are more familiar with those terms. In previous editions, the subsections did not expressly state which right was implicated. Although the rights were clear from the text of the former rules, the new titles will allow practitioners to quickly find the desired rule. Subsection (c)(3) is entitled “Sixth Amendment Right to Coun- sel” even though the protections of subsection (c)(3) exceed the constitutional minimal standard established by the Sixth Amend- ment as interpreted by the Supreme Court in Montejo v. Louisi- ana, 556 U.S. 778 (2009). In Montejo, the Court overruled its holding in Michigan v. Jackson , 475 U.S. 625 (1986), and held that a defendant’s request for counsel at an arraignment or similar proceeding or an appointment of counsel by the court does not give rise to the presumption that a subsequent waiver by the defendant during a police-initiated interrogation is invalid. 556 U.S. at 797-98. In the military system, defense counsel is detailed to a court-martial. R.C.M. 501(b). The accused need not affirma- tively request counsel. Under the Supreme Court’s holding in Montejo, the detailing of defense counsel would not bar law enforcement from initiating an interrogation with the accused and seeking a waiver of the right to have counsel present. However, s u b s e c t i o n ( c ) ( 3 ) p r o v i d e s m o r e p r o t e c t i o n t h a n t h e S u p r e m e Court requires. Under this subsection, if an accused is represented by counsel, either detailed or retained, he or she may not be interrogated without the presence of counsel. This is true even if, during the interrogation, the accused waives his or her right to have counsel present. If charges have been preferred but counsel has not yet been detailed or retained, the accused may be interro- gated if he or she voluntarily waives his or her right to have counsel present. The words “after such request” were added to subsection (c)(2) and elucidate that any statements made prior to a request for counsel are admissible, assuming, of course, that Article 31(b) rights were given. Without that phrase, the rule could be read to indicate that all statements made during the interview, even those made prior to the request, were inadmissible. The drafters did not intend such a meaning, leading to this recommended change. The drafters recommended changing the word “shall” to “will” in subsections (a), (d), and (f). The drafters agree with the ap- proach of the Advisory Committee on Evidence Rules to mini- mize the use of “shall” because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. In subsection (e)(1), the requirement that the accused’s waiver of the privilege against self-incrimination and the waiver of the right to counsel must be affirmative was retained. This rule ex- c e e d s t h e m i n i m a l c o n s t i t u t i o n a l r e q u i r e m e n t . I n B e r g h u i s v . Thompkins, 560 U.S. 370 (2010), the defendant remained mostly silent during a three-hour interrogation and never verbally stated that he wanted to invoke his rights to counsel and to remain silent. The Supreme Court held that the prosecution did not need to show that the defendant expressly waived his rights, and that an implicit waiver is sufficient. Id. at 384. Despite the Supreme Court’s holding, under this rule, in order for a waiver to be valid, the accused or suspect must actually take affirmative action to waive his or her rights. This rule places a greater burden on the government to show that the waiver is valid, and provides more protection to the accused or suspect than is required under the Berghuis holding. In subsection (f)(2), the word “abroad” was replaced with “out- side of a state, district, commonwealth, territory, or possession of the United States.” This change clearly defines where the rule regarding foreign interrogations applies. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 306 Statements by one of several accused Rule 306 is taken from the Para. 140 b of the 1969 Manual and s t a t e s t h e h o l d i n g o f B r u t o n v . U n i t e d S t a t e s , 3 9 1 U . S . 1 2 3 (1968). The remainder of the associated material in the Manual is primarily concerned with the co-conspirator’s exception to the hearsay rule and has been superseded by adoption of the Federal Rules of Evidence. See Rule 801. When it is impossible to effectively delete all references to a co-accused, alternative steps must be taken to protect the co- accused. This may include the granting of a severance. The Committee was aware of the Supreme Court’s decision in Parker v. Randolph , 442 U.S. 62 (1979) dealing with interlocking confessions. In view of the lack of a consensus in Parker, howev- er, the Committee determined that the case did not provide a sufficiently precise basis for drafting a rule, and decided instead to apply Bruton to interlocking confessions. Rule 311 Evidence obtained from unlawful searches and seizures R u l e s 3 1 1 – 3 1 7 e x p r e s s t h e m a n n e r i n w h i c h t h e F o u r t h Amendment to the Constitution of the United States applies to trials by court-martial, Cf. Parker v. Levy , 417 U.S. 733 (1974). (a) General rule. Rule 311(a) restates the basic exclusionary rule for evidence obtained from an unlawful search or seizure and is taken generally from Para. 152 of the 1969 Manual although much of the language of Para. 152 has been deleted for purposes of both clarity and brevity. The Rule requires suppression of derivative as well as primary evidence and follows the 1969 Manual rule by expressly limiting exclusion of evidence to that A22-19 App. 22, M.R.E. 311(a)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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resulting from unlawful searches and seizures involving govern- mental activity. Those persons whose actions may thus give rise to exclusion are listed in Rule 311(c) and are taken generally from Para. 152 with some expansion for purposes of clarity. Rule 311 recognizes that discovery of evidence may be so unrelated to an unlawful search or seizure as to escape exclusion because it was not “obtained as a result” of that search or seizure. The Rule recognizes that searches and seizures are distinct acts the legality of which must be determined independently. Although a seizure will usually be unlawful if it follows an unlawful search, a seizure may be unlawful even if preceded by a lawful search. Thus, adequate cause to seize may be distinct from legality of the search or observations which preceded it. Note in this respect Rule 316(d)(4)(C), Plain View. (1) Objection. Rule 311(a)(1) requires that a motion to sup- press or, as appropriate, an objection be made before evidence can be suppressed. Absent such motion or objection, the issue is waived. Rule 311(i). (2) Adequate interest. Rule 311(a)(2) represents a complete redrafting of the standing requirements found in Para. 152 of the 1969 Manual. The Committee viewed the Supreme Court decision in Rakas v. Illinois , 439 U.S. 128 (1978), as substantially modify- ing the Manual language. Indeed, the very use of the term “stan- ding” was considered obsolete by a majority of the Committee. The Rule distinguishes between searches and seizure. To have sufficient interest to challenge a search, a person must have “a reasonable expectation of privacy in the person, place, or property searched.” “Reasonable expectation of privacy” was used in lieu o f “ l e g i t i m a t e e x p e c t a t i o n o f p r i v a c y , ” o f t e n u s e d i n R a k a s , supra, as the Committee believed the two expressions to be iden- t i c a l . T h e C o m m i t t e e a l s o c o n s i d e r e d t h a t t h e e x p r e s s i o n “reasonable expectation” has a more settled meaning. Unlike the case of a search, an individual must have an interest distinct from an expectation of privacy to challenge a seizure. When a seizure is involved rather than a search the only invasion of one’s rights is the removal of the property in question. Thus, there must be some recognizable right to the property seized. Consequently, the Rule requires a “legitimate interest in the property or evidence seized.” This will normally mean some form of possessory inter- est. Adequate interest to challenge a seizure does not per se give adequate interest to challenge a prior search that may have re- sulted in the seizure. The Rule also recognizes an accused’s rights to challenge a search or seizure when the right to do so would exist under the Constitution. Among other reasons, this provision was included because of the Supreme Court’s decision in Jones v. United States, 302 U.S. 257 (1960), which created what has been termed the “automatic standing rule.” The viability of Jones after Rakas and other cases is unclear, and the Rule will apply Jones only to the extent that Jones is constitutionally mandated. 1986 Amendment: The words “including seizures of the per- son” were added to expressly apply the exclusionary rule to unlawful apprehensions and arrests, that is, seizures of the person. Procedures governing apprehensions and arrests are contained in R.C.M. 302. See also Mil. R. Evid. 316(c). 2016 Amendment : Rule 311(a)(3) incorporates the balancing test limiting the application of the exclusionary rule set forth in H e r r i n g v . U n i t e d S t a t e s , 5 5 5 U . S . 1 3 5 ( 2 0 0 9 ) , w h e r e t h e Supreme Court held that to trigger the exclusionary rule, “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” Id. at 147; see also United States v. Wicks , 73 M.J. 93, 104 (C.A.A.F. 2014) (“The exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs” (internal quotation marks omitted)). ( b ) E x c e p t i o n s : R u l e 3 1 1 ( b ) s t a t e s t h e h o l d i n g o f W a l d e r v . United States, 347 U.S. 62 (1954), and restates with minor change the rule as found in Para. 152 of the 1969 Manual. 1986 Amendment: Rule 311(b)(2) was added to incorporate the “inevitable discovery” exception to the exclusionary rule of Nix v. Williams, 467 U.S. 431 (1984). There is authority for the proposi- tion that this exception applies to the primary evidence tainted by an illegal search or seizure, as well as to evidence derived sec- ondarily from a prior illegal search or seizure. United States v. Romero, 692 F.2d 699 (10th Cir. 1982), cited with approval in Nix v. Williams, supra , 467 U.S. 431, n.2. See also United States v. Kozak , 12 M.J. 389 (C.M.A. 1982); United States v. Yandell , 13 M.J. 616 (A.F.C.M.R. 1982). Contra, United States v. Ward , 19 M.J. 505 (A.F.C.M.R. 1984). There is also authority for the proposition that the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the investigative authority and were being actively pursued prior to the occurrence of the illegal conduct which results in discovery of the evidence (United States v. Satterfield , 743 F.2d 827, 846 (11th Cir. 1984)). As a logical extension of the holdings in Nix and United States v. Kozak, supra , the leading military case, the inevitable discov- ery exception should also apply to evidence derived from appre- hensions and arrests determined to be illegal under R.C.M. 302 (State v. Nagel , 308 N.W.2d 539 (N.D. 1981) (alternative hold- ing)). The prosecution may prove that, notwithstanding the ille- gality of the apprehension or arrest, evidence derived therefrom is admissible under the inevitable discovery exception. Rule 311(b)(3) was added in 1986 to incorporate the “good faith” exception to the exclusionary rule based on United States v. Leon , 468 U.S. 897 (1984) and Massachusetts v. Sheppard , 468 U.S. 981 (1984). The exception applies to search warrants and authorizations to search or seize issued by competent civilian authority, military judges, military magistrates, and commanders. The test for determining whether the applicant acted in good faith i s w h e t h e r a r e a s o n a b l y w e l l - t r a i n e d l a w e n f o r c e m e n t o f f i c e r would have known the search or seizure was illegal despite the authorization. In Leon and Sheppard, the applicant’s good faith was enhanced by their prior consultation with attorneys. The rationale articulated in Leon and Sheppard that the deter- rence basis of the exclusionary rule does not apply to magistrates extends with equal force to search or seizure authorizations issued by commanders who are neutral and detached, as defined in United States v. Ezell , 6 M.J. 307 (C.M.A. 1979). The United States Court of Military Appeals demonstrated in United States v. Stuckey, 10 M.J. 347 (C.M.A. 1981), that commanders cannot be equated constitutionally to magistrates. As a result, commanders’ authorizations may be closely scrutinized for evidence of neutral- ity in deciding whether this exception will apply. In a particular case, evidence that the commander received the advice of a judge advocate prior to authorizing the search or seizure may be an important consideration. Other considerations may include those enumerated in Ezell and: the level of command of the authorizing A22-20 App. 22, M.R.E. 311(a) APPENDIX 22
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commander; whether the commander had training in the rules relating to search and seizure; whether the rule governing the search or seizure being litigated was clear; whether the evidence supporting the authorization was given under oath; whether the authorization was reduced to writing; and whether the defect in the authorization was one of form or substance. As a logical extension of the holdings in Leon and Sheppard, the good faith exception also applies to evidence derived from apprehensions and arrests which are effected pursuant to an au- thorization or warrant, but which are subsequently determined to h a v e b e e n d e f e c t i v e u n d e r R . C . M . 3 0 2 ( U n i t e d S t a t e s v . Mahoney, 712 F.2d 956 (5th Cir. 1983); United States v. Beck , 729 F.2d 1329 (11th Cir. 1984)). The authorization or warrant must, however, meet the conditions set forth in Rule 311(b)(3). It is intended that the good faith exception will apply to both primary and derivative evidence. (c) Nature of search or seizure. Rule 311(c) defines “unlawful” searches and seizures and makes it clear that the treatment of a search or seizure varies depending on the status of the individual or group conducting the search or seizure. (1) Military personnel. Rule 311(c)(1) generally restates prior law. A violation of a military regulation alone will not require exclusion of any resulting evidence. However, a violation of such a regulation that gives rise to a reasonable expectation of privacy may require exclusion. Compare United States v. Dillard , 8 M.J. 213 (C.M.A. 1980), with United States v. Caceres , 440 U.S. 741 (1979). (2) Other officials. Rule 311(c)(2) requires that the legality of a search or seizure performed by officials of the United States, of the District of Columbia, or of a state, commonwealth, or posses- sion or political subdivision thereof, be determined by the princi- ples of law applied by the United States district courts when resolving the legality of such a search or seizure. (3) Officials of a foreign government or their agents. This provision is taken in part from United States v. Jordan , 1 M.J. 334 (C.M.A. 1976). After careful analysis, a majority of the Committee concluded that portion of the Jordan opinion which purported to require that such foreign searches be shown to have complied with foreign law is dicta and lacks any specific legal authority to support it. Further the Committee noted the fact that most foreign nations lack any law of search and seizure and that in some cases, e.g., Germany, such law as may exist is purely theoretical and not subject to determination. The Jordan require- ment thus unduly complicates trial without supplying any protec- tion to the accused. Consequently, the Rule omits the requirement in favor of a basic due process test. In determining which version of the various due process phrasings to utilize, a majority of the Committee chose to use the language found in Para. 150 b of the 1969 Manual rather than the language found in Jordan (which requires that the evidence not shock the conscience of the court) believing the Manual language is more appropriate to the circum- stances involved. Rule 311(c) also indicates that persons who are present at a foreign search or seizure conducted in a foreign nation have “not participated in” that search or seizure due either to their mere presence or because of any actions taken to mitigate possible damage to property or person. The Rule thus clarifies United States v. Jordan , 1 M.J. 334 (C.M.A. 1976) which stated that the Fourth Amendment would be applicable to searches and seizures conducted abroad by foreign police when United States personnel participate in them. The Court’s intent in Jordan was to prevent American authorities from sidestepping Constitutional protections by using foreign personnel to conduct a search or seizure that would have been unlawful if conducted by Americans. This inten- tion is safeguarded by the Rule, which applies the Rules and the Fourth Amendment when military personnel or their agents con- duct, instigate, or participate in a search or seizure. The Rule only clarifies the circumstances in which a United States official will be deemed to have participated in a foreign search or seizure. This follows dicta in United States v. Jones , 6 M.J. 226, 230 (C.M.A. 1979), which would require an “element of causation,” rather than mere presence. It seems apparent that an American servicemember is far more likely to be well served by United States presence— which might mitigate foreign conduct— than by its absence. Further, international treaties frequently require United States cooperation with foreign law enforcement. Thus, the Rule serves all purposes by prohibiting conduct by United States officials which might improperly support a search or sei- zure which would be unlawful if conducted in the United States while protecting both the accused and international relations. The Rule also permits use of United States personnel as inter- preters viewing such action as a neutral activity normally of potential advantage to the accused. Similarly the Rule permits personnel to take steps to protect the person or property of the accused because such actions are clearly in the best interests of the accused. 2016 Amendment : Rule 311(c)(4) was added. It adopts the expansion of the “good faith” exception to the exclusionary rule set forth in Illinois v. Krull , 480 U.S. 340 (1987), where the Supreme Court held that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable r e l i a n c e o n a s t a t u t e l a t e r h e l d v i o l a t i v e o f t h e F o u r t h Amendment. (d) Motion to suppress and objections. Rule 311(d) provides for challenging evidence obtained as a result of an allegedly unlawful search or seizure. The procedure, normally that of a motion to suppress, is intended with a small difference in the disclosure requirements to duplicate that required by Rule 304(d) for confes- sions and admissions, the Analysis of which is equally applicable here. Rule 311(d)(1) differs from Rule 304(c)(1) in that it is applica- ble only to evidence that the prosecution intends to offer against the accused. The broader disclosure provision for statements by the accused was considered unnecessary. Like Rule 304(d)(2)(C), Rule 311(d)(2)(C) provides expressly for derivative evidence dis- closure of which is not mandatory as it may be unclear to the prosecution exactly what is derivative of a search or seizure. The Rule thus clarifies the situation. (e) Burden of proof. Rule 311(e) requires that a preponderance of the evidence standard be used in determining search and seizure questions. Lego v. Twomey , 404 U.S. 477 (1972). Where the validity of a consent to search or seize is involved, a higher standard of “clear and convincing,” is applied by Rule 314(e). This restates prior law. F e b r u a r y 1 9 8 6 A m e n d m e n t : S u b p a r a g r a p h s ( e ) ( 1 ) a n d ( 2 ) were amended to state the burden of proof for the inevitable discovery and good faith exceptions to the exclusionary rule, as A22-21 App. 22, M.R.E. 311(e)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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prescribed in Nix v. Williams , 467 U.S. 431 (1984) and United States v. Leon , 468 U.S. 897 (1984), respectively. 1993 Amendment: The amendment to Mil. R. Evid. 311(e)(2) was made to conform Rule 311 to the rule of New York v. Harris , 495 U.S. 14 (1990). The purpose behind the exclusion of deriva- tive evidence found during the course of an unlawful apprehen- sion in a dwelling is to protect the physical integrity of the dwelling not to protect suspects from subsequent lawful police interrogation. See id. A suspect’s subsequent statement made at another location that is the product of lawful police interrogation is not the fruit of the unlawful apprehension. The amendment also contains language added to reflect the “good faith” exception to the exclusionary role set forth in United States v. Leon, 468 U.S. 897 (1984), and the “inevitable discovery” exception set forth in Nix v. Williams, 467 U.S. 431 (1984). (f) Defense evidence. Rule 311(f) restates prior law and makes it clear that although an accused is sheltered from any use at trial of a statement made while challenging a search or seizure, such statement may be used in a subsequent “prosecution for perjury, false swearing or the making of a false official statement.” (g) Scope of motions and objections challenging probable cause. Rule 311(g)(2) follows the Supreme Court decision in Franks v. Delaware, 422 U.S. 928 (1978), see also United States v. Turck , 49 C.M.R. 49, 53 (A.F.C.M.R. 1974), with minor modifications m a d e t o a d o p t t h e d e c i s i o n t o m i l i t a r y p r o c e d u r e s . A l t h o u g h Franks involved perjured affidavits by police, Rule 311(a) is made applicable to information given by government agents be- cause of the governmental status of members of the armed serv- ices. The Rule is not intended to reach misrepresentations made by informants without any official connection. 1995 Amendment: Subsection (g)(2) was amended to clarify that in order for the defense to prevail on an objection or motion under this rule, it must establish, inter alia, that the falsity of the evidence was “knowing and intentional” or in reckless disregard for the truth. Accord Franks v. Delaware , 438 U.S. 154 (1978). (h) Objections to evidence seized unlawfully. Rule 311(h) is new and is included for reasons of clarity. (i) Effect of guilty plea. Rule 311(i) restates prior law. See, e.g., U n i t e d S t a t e s v . H a m i l , 1 5 U . S . C . M . A . 1 1 0 , 3 5 C . M . R . 8 2 (1964). 2013 Amendment. The definition of “unlawful” was moved from subsection (c) to subsection (b) and now immediately pre- cedes the subsection in which the term is first used in the rule. Other subsections were moved and now generally follow the order in which the issues described in the subsections arise at trial. The subsections were renumbered and titled; this change makes it easier for the practitioner to find the relevant part of the rule. Former subsection (d)(2)(C), addressing a motion to sup- press derivative evidence, was subsumed into subsection (d)(1). This change reflects how a motion to suppress seized evidence must follow the same procedural requirements as a motion to suppress derivative evidence. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 312 Body views and intrusions 1984 Amendment: “Body” was substituted for “bodily” in the t i t l e a n d w h e r e a p p r o p r i a t e i n t e x t . S e e U n i t e d S t a t e s v . Armstrong, 9 M.J. 374, 378 n.5 (C.M.A. 1980). (a) General rule. Rule 312(a) limits all nonconsensual inspec- tions, searches, or seizures by providing standards for examina- tions of the naked body and bodily intrusions. An inspection, search, or seizure that would be lawful but for noncompliance with this Rule is unlawful within the meaning of Rule 311. (b) Visual examination of the body. Rule 312(b) governs searches and examinations of the naked body and thus controls what has often been loosely termed “strip searches.” Rule 312(b) permits visual examination of the naked body in a wide but finite range of circumstances. In doing so, the Rule strictly distinguishes be- tween visual examination of body cavities and actual intrusion into them. Intrusion is governed by Rule 312(c) and (e). Visual examination of the male genitals is permitted when a visual ex- amination is permissible under this subdivision. Examination of cavities may include, when otherwise proper under the Rule, requiring the individual being viewed to assist in the examination. Examination of body cavities within the prison setting has been vexatious. See, e.g., Hanley v. Ward , 584 F.2d 609 (2d Cir. 1978); Wolfish v. Levi , 573 F.2d 118, 131 (2d Cir. 1978), re- versed sub nom Bell v. Wolfish , 441 U.S. 520 (1979); Daughtry v. Harris, 476 F.2d 292 (10th Cir. 1973), cert. denied, 414 U.S. 872 (1973); Frazier v. Ward , 426 F.Supp. 1354, 1362–67 (N.D.N.Y. 1977); Hodges v. Klein , 412 F.Supp. 896 (D.N.J. 1976). Institu- tional security must be protected while at the same time only privacy intrusions necessary should be imposed on the individual. The problem is particularly acute in this area of inspection of body cavities as such strong social taboos are involved. Rule 312(b)(2) allows examination of body cavities when reasonably necessary to maintain the security of the institution or its person- nel. See Bell v. Wolfish , 441 U.S. 520 (1979). Examinations likely to be reasonably necessary include examination upon entry or exit from the institution, examination subsequent to a personal visit, or examination pursuant to a reasonably clear indication that the individual is concealing property within a body cavity. Frazier v. Ward, 426 F.Supp. 1354 (N.D.N.Y. 1977); Hodges v. Klein , 412 F.Supp. 896 (D.N.J. 1976). Great deference should be given to the decisions of the commanders and staff of military confine- ment facilities. The concerns voiced by the Court of Appeals for the Tenth Circuit in Daughtry v. Harris , 476 F.2d 292 (10th Cir. 1973) about escape and related risks are likely to be particularly applicable to military prisoners because of their training in weap- ons and escape and evasion tactics. As required throughout Rule 312, examination of body cavities must be accomplished in a reasonable fashion. This incorporates Rochin v. California , 342 U.S. 165 (1952), and recognizes socie- ty’s particularly sensitive attitude in this area. Where possible, examination should be made in private and by members of the same sex as the person being examined. 1984 Amendment: In subsection (b)(2) and (c), “reasonable” replaced “real” before “suspicion.” A majority of Circuit Courts of Appeal have adopted a “reasonable suspicion” test over a “real suspicion” test. See United States v. Klein , 592 F.2d 909 (5th Cir. 1979); United States v. Asbury , 586 F.2d 973 (2d Cir. 1978); United States v. Wardlaw , 576 F.2d 932 (1st Cir. 1978); United States v. Himmelwright , 551 F.2d 991 (5th Cir.), cert. denied, 434 A22-22 App. 22, M.R.E. 311(e) APPENDIX 22
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U.S. 902 (1977). But see United States v. Aman , 624 F.2d 911 (9th Cir. 1980). In practice, the distinction may be minimal. But see Perel v. Vanderford , 547 F.2d 278, 280 n.1 (5th Cir. 1977). However, the real suspicion formulation has been criticized as potentially confusing. United States v. Asbury, supra at 976. (c) Intrusion into body cavities. Actual intrusion into body cavi- ties, e.g., the anus and vagina, may represent both a significant invasion of the individual’s privacy and a possible risk to the health of the individual. Rule 312(c) allows seizure of property d i s c o v e r e d i n a c c o r d a n c e w i t h R u l e s 3 1 2 ( b ) , 3 1 2 ( c ) ( 2 ) , o r 316(d)(4)(C) but requires that intrusion into such cavities be ac- complished by personnel with appropriate medical qualifications. The Rule thus does not specifically require that the intrusion be made by a doctor, nurse, or other similar medical personnel al- though Rule 312(g) allows the Secretary concerned to prescribe who may perform such procedures. It is presumed that an object easily located by sight can normally be easily extracted. The requirements for appropriate medical qualifications, however, rec- ognize that circumstances may require more qualified personnel. This may be particularly true, for example, for extraction of foreign matter from a pregnant woman’s vagina. Intrusion should normally be made either by medical personnel or by persons with appropriate medical qualifications who are members of the same sex as the person involved. The Rule distinguishes between seizure of property previously located and intrusive searches of body cavities by requiring in Rule 312(c)(2) that such searches be made only pursuant to a search warrant or authorization, based upon probable cause, and conducted by persons with appropriate medical qualifications. Ex- igencies do not permit such searches without warrant or authori- zation unless Rule 312(f) is applicable. In the absence of express regulations issued by the Secretary concerned pursuant to Rule 312(g), the determination as to which personnel are qualified to conduct an intrusion should be made in accordance with normal procedures of the applicable medical facility. Recognizing the peculiar needs of confinement facilities and related institutions, see, e.g., Bell v. Wolfish , 441 U.S. 520 (1979), Rule 312(c) authorizes body cavity searches without prior search warrant or authorization when there is a “real suspicion that the i n d i v i d u a l i s c o n c e a l i n g w e a p o n s , c o n t r a b a n d , o r e v i d e n c e o f crime.” (d) Extraction of body fluids. Seizure of fluids from the body may involve self-incrimination questions pursuant to Article 31 of the Uniform Code of Military Justice, and appropriate case law should be consulted prior to involuntary seizure. See generally Rule 301(a) and its Analysis. The Committee does not intend an individual’s expelled breath to be within the definition of “body fluids.” The 1969 Manual Para. 152 authorization for seizure of bodily fluids when there has been inadequate time to obtain a warrant or authorization has been slightly modified. The prior language that there be “clear indication that evidence of crime will be found and that there is reason to believe that delay will threaten the destruction of evidence” has been modified to authorize such a seizure if there is reason to believe that the delay “could result in the destruction of the evidence.” Personnel involuntarily extract- ing bodily fluids must have appropriate medical qualifications. Rule 312 does not prohibit compulsory urinalysis, whether ran- dom or not, made for appropriate medical purposes, see Rule 312(f), and the product of such a procedure if otherwise admissi- ble may be used in evidence at a court-martial. 1984 Amendment: The first word in the caption of subsection (d) was changed from “ Seizure” to “ Extraction.” This is consis- tent with the text of subsection (d) and should avoid possible confusion about the scope of the subsection. Subsection (d) does not apply to compulsory production of body fluids ( e.g., being ordered to void urine), but rather to physical extraction of body fluids (e.g., catheterization or withdrawal of blood). See Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983). See also Analysis, Mil. R. Evid. 313(b). (e) Other intrusive searches. The intrusive searches governed by Rule 312(e) will normally involve significant medical procedures including surgery and include any intrusion into the body includ- ing x-rays. Applicable civilian cases lack a unified approach to surgical intrusions, see, e.g., United States v. Crowder , 513 F.2d 395 (D.C. Cir. 1976); Adams v. State , 299 N.E.2d 834 (Ind. 1973); Creamer v. State , 299 Ga. 511, 192 S.E.2d 350 (1972), N o t e , S e a r c h a n d S e i z u r e : C o m p e l l e d S u r g i c a l I n t r u s i o n , 2 7 Baylor L. Rev. 305 (1975), and cases cited therein, other than to rule out those intrusions which are clearly health threatening. Rule 312(e) balances the Government’s need for evidence with the individual’s privacy interest by allowing intrusion into the body of an accused or suspect upon search authorization or war- rant when conducted by person with “appropriate medical qualifi- cation,” and by prohibiting intrusion when it will endanger the health of the individual. This allows, however, considerable flexi- bility and leaves the ultimate issue to be determined under a due process standard of reasonableness. As the public’s interest in obtaining evidence from an individual other than an accused or suspect is substantially less than the person’s right to privacy in his or her body, the Rule prohibits the involuntary intrusion alto- gether if its purpose is to obtain evidence of crime. (f) Intrusions for valid medical purposes. Rule 312(f) makes it clear that the Armed Forces retain their power to ensure the health of their members. A procedure conducted for valid medical purposes may yield admissible evidence. Similarly, Rule 312 does not affect in any way any procedure necessary for diagnostic or treatment purposes. (g) Medical qualifications. Rule 312(g) permits but does not re- quire the Secretaries concerned to prescribe the medical qualifica- t i o n s n e c e s s a r y f o r p e r s o n s t o c o n d u c t t h e p r o c e d u r e s a n d examinations specified in the Rule. 2013 Amendment. The last sentence of former subsection (b)(2) was moved to a discussion paragraph; the drafters recommended this change because it addresses the conduct of the examiner rather than the admissibility of evidence. See supra, General Pro- visions Analysis. Failure to comply with the requirement that a person of the same sex conduct the examination does not make the examination unlawful or the evidence inadmissible. In subsection (c)(2)(A), the words “clear indication” were re- placed with “probable cause.” “Clear indication” was not well- understood by practitioners nor properly defined in case law, whereas “probable cause” is a recognized Fourth Amendment term. The use of the phrase “clear indication” likely came from the Supreme Court’s holding in Schmerber v. California , 384 U.S. 757 (1966). In that case, the Court stated: “In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk A22-23 App. 22, M.R.E. 312(g)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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that such evidence may disappear unless there is an immediate search.” Id. at 770. However, in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court clarified that it did not intend to create a separate Fourth Amendment standard when it used the words “clear indication.” Id. at 540 (“[W]e think that the words in Schmerber were used to indicate the necessity for particularized suspicion that the evidence sought might be found within the body of the individual, rather than as enunciat- ing still a third Fourth Amendment threshold between ‘reasonable suspicion’ and ‘probable cause.’”). The appropriate standard for a search under subsection (c)(2)(A) is probable cause. The Presi- dent’s adoption of the probable cause standard raised the level of suspicion required to perform a search under this subsection be- yond that which was required in previous versions of this rule. The same reasoning applies to the change in subsection (d), where the words “clear indication” were replaced with ”probable cause.” This approach is consistent with the Court of Military Appeals’ opinion in United States v. Bickel , 30 M.J. 277, 279 (C.M.A. 1990) (“We have no doubt as to the constitutionality of such searches and seizures based on probable cause”). In subsection (d), the term “involuntary” was replaced with “ n o n c o n s e n s u a l ” f o r t h e s a k e o f c o n s i s t e n c y a n d u n i f o r m i t y throughout the subsection; the drafters did not intend to change the rule in any practical way by using “nonconsensual” in the place of “involuntary.” A discussion paragraph was added following subsection (e) to address a situation in which a person is compelled to ingest a substance in order to locate property within that person’s body. T h i s p a r a g r a p h w a s p r e v i o u s l y f o u n d i n s u b s e c t i o n ( e ) ; t h e drafters recommended removing it from the rule itself because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. The last line of subsection (f) was added; this change conforms the rule with CAAF’s holding in United States v. Stevenson , 66 M.J. 15 (C.A.A.F. 2008). In Stevenson, the court held that any additional intrusion, beyond what is necessary for medical treat- ment, is a search within the meaning of the Fourth Amendment. Id. at 19 (“the Supreme Court has not adopted a de minimis exception to the Fourth Amendment‘s warrant requirement”). The drafters recommended moving the first line of former subsection (f) to a discussion paragraph because it addresses conduct rather than the admissibility of evidence, and is therefore more appropri- ately addressed in a discussion paragraph. See supra , General Provisions Analysis. This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 313 Inspections and inventories in the armed forces Although inspections have long been recognized as being necessary and legitimate exercises of a commander’s powers and r e s p o n s i b i l i t i e s , s e e , e . g . , U n i t e d S t a t e s v . G e b h a r t , 1 0 U.S.C.M.A. 606, 610 n.2, 28 C.M.R. 172, 176 n.2 (1959), the 1969 Manual for Courts-Martial omitted discussion of inspections except to note that the Para. 152 restrictions on seizures were not applicable to “administrative inspections.” The reason for the omission is likely that military inspections per se have tradition- ally been considered administrative in nature and free of probable cause requirements. Cf. Frank v. Maryland , 359 U.S. 360 (1959). Inspections that have been utilized as subterfuge searches have b e e n c o n d e m n e d . S e e , e . g . , U n i t e d S t a t e s v . L a n g e , 1 5 U.S.C.M.A. 486, 35 C.M.R. 458 (1965). Recent decisions of the United States Court of Military Appeals have attempted, generally without success, to define “inspection” for Fourth Amendment evidentiary purposes, see, e.g., United States v. Thomas , 1 M.J. 397 (C.M.A. 1976) (three separate opinions), and have been con- cerned with the intent, scope, and method of conducting inspec- tions. See e.g., United States v. Harris , 5 M.J. 44 (C.M.A. 1978). (a) General rule. Rule 313 codifies the law of military inspections and invento- ries. Traditional terms used to describe various inspections, e.g. “shakedown inspection” or “gate search,” have been abandoned as being conducive to confusion. Rule 313 does not govern inspections or inventories not con- ducted within the armed forces. These civilian procedures must be evaluated under Rule 311(c)(2). In general, this means that such inspections and inventories need only be permissible under the Fourth Amendment in order to yield evidence admissible at a court-martial. Seizure of property located pursuant to a proper inspection or inventory must meet the requirements of Rule 316. (b) Inspections. Rule 313(b) defines “inspection” as an “examina- tion. . . conducted as an incident of command the primary pur- pose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle.” Thus, an inspection is conducted for the primary function of ensuring mission readiness, and is a function of the inherent duties and responsibilities of those in the military chain of command. Because inspections are intended to discover, correct, and deter conditions detrimental to military efficiency and safety, they must be considered as a con- dition precedent to the existence of any effective armed force and inherent in the very concept of a military unit. Inspections as a general legal concept have their constitutional origins in the very provisions of the Constitution which authorize the armed forces of the United States. Explicit authorization for inspections has thus been viewed in the past as unnecessary, but in light of the present ambiguous state of the law ( see, e.g. United States v. Thomas, supra; United States v. Roberts , 2 M.J. 31 (C.M.A. 1976)), such authorization appears desirable. Rule 313 is thus, in addition to its status as a rule of evidence authorized by Congress under Article 36, an express Presidential authorization for inspec- tions with such authorization being grounded in the President’s powers as Commander-in-Chief. The interrelationship of inspections and the Fourth Amendment is complex. The constitutionality of inspections is apparent and has been well recognized; see e.g., United States v. Gebhart , 10 C.M.A. 606, 610 n.2, 28 C.M.R. 172, 176 n.2. (1959). There are three distinct rationales which support the constitutionality of inspections. The first such rationale is that inspections are not technically “searches”within the meaning of the Fourth Amendment. Cf. Air Pollution Variance Board v. Western Alfalfa Corps , 416 U.S. 861 (1974); Hester v. United States , 265 U.S. 57 (1924). The intent of the framers, the language of the amendment itself, and the nature of military life render the application of the Fourth Amendment to A22-24 App. 22, M.R.E. 312(g) APPENDIX 22
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a normal inspection questionable. As the Supreme Court has often recognized, the “Military is, [by necessity, a specialized society separate from civilian society.]” Brown v. Glines , 444 U.S. 348, 354 (1980) citing Parker v. Levy , 417 U.S. 733, 734 (1974). As the Supreme Court noted in Glines, supra , military personnel must be ready to perform their duty whenever the occasion arises. To ensure that they always are capable of performing their mis- sion promptly and reliably, the military services “must insist upon a respect for duty and a discipline without counterpart in civilian life.” 444 U.S. at 354 (citations omitted). An effective armed force without inspections is impossible— a fact amply illustrated by the unfettered right to inspect vested in commanders through- out the armed forces of the world. As recognized in Glines, supra, and Greer v. Spock , 424 U.S. 828 (1976), the way that the Bill of Rights applies to military personnel may be different from the way it applies to civilians. Consequently, although the Fourth Amendment is applicable to members of the armed forces, inspec- tions may well not be “searches” within the meaning of the Fourth Amendment by reason of history, necessity, and constitu- tional interpretation. If they are “searches,” they are surely rea- sonable ones, and are constitutional on either or both of two rationales. As recognized by the Supreme Court, highly regulated indus- tries are subject to inspection without warrant, United States v. B i s w e l l , 4 0 6 U . S . 3 1 1 ( 1 9 7 2 ) ; C o l o n n a d e C a t e r i n g C o r p . v . United States , 397 U.S. 72 (1970), both because of the necessity for such inspections and because of the “limited threats to. . . j u s t i f i a b l e e x p e c t a t i o n o f p r i v a c y . ” U n i t e d S t a t e s v . B i s w e l l , supra, at 316. The court in Biswell, supra, found that regulations of firearms traffic involved “large interests,” that “inspection is a crucial part of the regulatory scheme,” and that when a firearms dealer enters the business “he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection,” 406 U.S. 315, 316. It is clear that inspec- tions within the armed forces are at least as important as regula- tion of firearms; that without such inspections effective regulation of the armed forces is impossible; and that all personnel entering the armed forces can be presumed to know that the reasonable expectation of privacy within the armed forces is exceedingly limited by comparison with civilian expectations. See e.g., Com- mittee for G.I. Rights v. Callaway , 518 F.2d 466 (D.C.C. 1975). Under Colonnade Catering, supra , and Bisell, supra , inspections are thus reasonable searches and may be made without warrant. An additional rationale for military inspection is found within the Supreme Court’s other administrative inspection cases. See Marshall v. Barlow’s, Inc. , 436 U.S. 397 (1978); Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle , 387 U.S. 541 (1967). Under these precedents an administrative inspec- tion is constitutionally acceptable for health and safety purposes so long as such an inspection is first authorized by warrant. The warrant involved, however, need not be upon probable cause in the traditional sense, rather the warrant may be issued “if reasona- ble legislative or administrative standards for conducting an area inspection are satisfied. . .” Camara, supra , 387 U.S. at 538. Military inspections are intended for health and safety reasons in a twofold sense: they protect the health and safety of the person- nel in peacetime in a fashion somewhat analogous to that which protects the health of those in a civilian environment, and, by ensuring the presence and proper condition of armed forces per- sonnel, equipment, and environment, they protect those personnel from becoming unnecessary casualties in the event of combat. Although Marshall v. Barlow’s Inc., Camara , and See, supra , require warrants, the intent behind the warrant requirement is to ensure that the person whose property is inspected is adequately notified that local law requires inspection, that the person is notified of the limits of the inspection, and that the person is adequately notified that the inspector is acting with proper author- i t y . C a m a r a v . M u n i c i p a l C o u r t , 3 8 7 U . S . 5 2 3 , 5 3 2 ( 1 9 6 7 ) . Within the armed forces, the warrant requirement is met automati- cally if an inspection is ordered by a commander, as commanders are empowered to grant warrants. United States v. Ezell , 6 M.J. 307 (C.M.A. 1979). More importantly, the concerns voiced by the court are met automatically within the military environment in any event as the rank and assignment of those inspecting and their right to do so are known to all. To the extent that the search warrant requirements are intended to prohibit inspectors from utilizing inspections as subterfuge searches, a normal inspection fully meets the concern, and Rule 313(b) expressly prevents such subterfuges. The fact that an inspection that is primarily adminis- trative in nature may result in a criminal prosecution is unimpor- tant. Camara v. Municipal Court , 387 U.S. 523, 530–31 (1967). Indeed, administrative inspections may inherently result in prose- cutions because such inspections are often intended to discover health and safety defects the presence of which are criminal offenses. Id. at 531. What is important, to the extent that the Fourth Amendment is applicable, is protection from unreasonable violations of privacy. Consequently, Rule 313(b) makes it clear that an otherwise valid inspection is not rendered invalid solely because the inspector has as his or her purpose a secondary “purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings. . .” An examination made, however, with a primary purpose of prosecution is no longer an administrative inspection. Inspections are, as has been previously discussed, lawful acceptable measures to ensure the survival of the American armed forces and the accomplishment of their mis- sion. They do not infringe upon the limited reasonable expecta- tion of privacy held by service personnel. It should be noted, however, that it is possible for military personnel to be granted a reasonable expectation of privacy greater than the minimum in- herently recognized by the Constitution. An installation com- mander might, for example, declare a BOQ sacrosanct and off limits to inspections. In such a rare case the reasonable expecta- tion of privacy held by the relevant personnel could prevent or substantially limit the power to inspect under the Rule. See Rule 311(c). Such extended expectations of privacy may, however, be negated with adequate notice. An inspection “may be made ‘of the whole or part’ of a unit, organization, installation, vessel, aircraft, or vehicle. . . (and is) conducted as an incident of command.” Inspections are usually quantitative examinations insofar as they do not normally single out specific individuals or small groups of individuals. There is, however, no requirement that the entirety of a unit or organization be inspected. Unless authority to do so has been withheld by competent superior authority, any individual placed in a command or appropriate supervisory position may inspect the personnel and property within his or her control. Inspections for contraband such as drugs have posed a major problem. Initially, such inspections were viewed simply as a form A22-25 App. 22, M.R.E. 313(b)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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of health and welfare inspection, see, e.g., United States v. Unrue , 22 C.M.A. 466, 47 C.M.R. 556 (1973). More recently, however, the Court of Military Appeals has tended to view them solely as searches for evidence of crime. See e.g. United States v. Roberts , 2 M.J. 31 (C.M.A. 1976); but see United States v. Harris , 5 M.J. 44, 58 (C.M.A. 1978). Illicit drugs, like unlawful weapons, repre- sent, however, a potential threat to military efficiency of disas- trous proportions. Consequently, it is entirely appropriate to treat inspections intended to rid units of contraband that would ad- versely affect military fitness as being health and welfare inspec- tions, see, e.g., Committee for G.I. Rights v. Callaway , 518 F.2d 466 (D.C.C. 1975), and the Rule does so. A careful analysis of the applicable case law, military and civilian, easily supports this conclusion. Military cases have long recognized the legitimacy of “health and welfare” inspections and have defined those inspections as examinations intended to ascer- tain and ensure the readiness of personnel and equipment. See, e . g . , U n i t e d S t a t e s v . G e b h a r t , 1 0 C . M . A . 6 0 6 , 6 1 0 n . 2 , 2 8 C.M.R. 172, 176 n.2 (1959); “(these) types of searches are not to be confused with inspections of military personnel. . . conducted by a commander in furtherance of the security of his command”; United States v. Brashears , 45 C.M.R. 438 (A.C.M.R. 1972), rev’d on other grounds , 21 C.M.A. 522, 45 C.M.R. 326 (1972). Among the legitimate intents of a proper inspection is the location and confiscation of unauthorized weapons. See, e.g., United States v. Grace , 19 C.M.A. 409, 410, 42 C.M.R. 11, 12 (1970). The justification for this conclusion is clear: unauthorized weapons are a serious danger to the health of military personnel and therefore to mission readiness. Contraband that “would affect adversely the security, military fitness, or good order and discipline” is thus identical with unauthorized weapons insofar as their effects can be predicted. Rule 313(b) authorizes inspections for contraband, and is expressly intended to authorize inspections for unlawful drugs. As recognized by the Court of Military Appeals in United States v. Unrue , 22 C.M.A. 466, 469–70, 47 C.M.R. 556, 559–60 (1973), unlawful drugs pose unique problems. If uncontrolled, they may create an “epidemic,” 47 C.M.R. at 559. Their use is not only contagious as peer pressure in barracks, aboard ship, and in units, tends to impel the spread of improper drug use, but the effects are known to render units unfit to accomplish their mis- sions. Viewed in this light, it is apparent that inspection for those drugs which would “affect adversely the security, military fitness, or good order and discipline of the command” is a proper admin- istrative intent well within the decisions of the United States Supreme Court. See, e.g., Camara v. Municipal Court , 387 U.S. 523 (1967); United States v. Unrue , 22 C.M.A. 446, 471, 47 C.M.R. 556, 561 (1973) (Judge Duncan dissenting). This conclu- sion is buttressed by the fact that members of the military have a diminished expectation of privacy, and that inspections for such contraband are “reasonable” within the meaning of the Fourth Amendment. See, e.g., Committee for G.I. Rights v. Callaway , 518 F.2d 466 (D.C.C. 1975). Although there are a number of decisions of the Court of Military Appeals that have called the l e g a l i t y o f i n s p e c t i o n s f o r u n l a w f u l d r u g s i n t o q u e s t i o n , s e e United States v. Thomas, supra; United States v. Roberts , 2 M.J. 31 (C.M.A. 1977), those decisions with their multiple opinions are not dispositive. Particularly important to this conclusion is the opinion of Judge Perry in United States v. Roberts, supra. Three significant themes are present in the opinion: lack of express authority for such inspections, the perception that unlawful drugs are merely evidence of crime, and the high risk that inspections may be used for subterfuge searches. The new Rule is intended to resolve these matters fully. The Rule, as part of an express Exec- utive Order, supplies the explicit authorization for inspections then lacking. Secondly, the Rule is intended to make plain the fact that an inspection that has as its object the prevention and correction of conditions harmful to readiness is far more than a hunt for evidence. Indeed, it is the express judgment of the Com- mittee that the uncontrolled use of unlawful drugs within the armed forces creates a readiness crisis and that continued use of such drugs is totally incompatible with the possibility of effec- tively fielding military forces capable of accomplishing their as- signed mission. Thirdly, Rule 313(b) specifically deals with the subterfuge question in order to prevent improper use of inspec- tions. Rule 313(b) requires that before an inspection intended “to locate and confiscate unlawful weapons or other contraband, that would affect adversely the. . . command” may take place, there must be either “a reasonable suspicion that such property is pres- ent in the command” or the inspection must be “a previously scheduled examination of the command.” The former requirement requires that an inspection not previously scheduled be justified by “reasonable suspicion that such property is present in the command.” This standard is intentionally minimal and requires only that the person ordering the inspection have a suspicion that is, under the circumstances, reasonable in nature. Probable cause is not required. Under the latter requirement, an inspection shall be scheduled sufficiently far enough in advance as to eliminate any reasonable probability that the inspection is being used as a subterfuge, i.e., that it is being used to search a given individual for evidence of crime when probable cause is lacking. Such scheduling may be made as a matter of date or event. In other words, inspections may be scheduled to take place on any specific date, e.g., a commander may decide on the first of a month to inspect on the 7th, 9th, and 21st, or on the occurrence of a specific event beyond the usual control of the commander, e.g., whenever an alert is ordered, forces are deployed, a ship sails, the stock market reaches a certain level of activity, etc. It should be noted that “previously scheduled” inspections that vest discretion in the inspector are permissible when otherwise lawful. So long as the examination, e.g., an entrance gate inspection, has been previously scheduled, the fact that reasonable exercise of discre- tion is involved in singling out individuals to be inspected is not improper; such inspection must not be in violation of the Equal Protection clause of the 5th Amendment or be used as a subter- fuge intended to allow search of certain specific individuals. The Rule applies special restrictions to contraband inspections because of the inherent possibility that such inspection may be used as subterfuge searches. Although a lawful inspection may be conducted with a secondary motive to prosecute those found in possession of contraband, the primary motive must be administra- tive in nature. The Rule recognizes the fact that commanders are o r d i n a r i l y m o r e c o n c e r n e d w i t h r e m o v a l o f c o n t r a b a n d f r o m units—thereby eliminating its negative effects on unit readiness— than with prosecution of those found in possession of it. The fact that possession of contraband is itself unlawful renders the proba- A22-26 App. 22, M.R.E. 313(b) APPENDIX 22
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bility that an inspection may be a subterfuge somewhat higher than that for an inspection not intended to locate such material. An inspection which has as its intent, or one of its intents, in whole or in part, the discovery of contraband, however slight, must comply with the specific requirements set out in the Rule for inspections for contraband. An inspection which does not have such an intent need not so comply and will yield admissible evidence if contraband is found incidentally by the inspection. Contraband is defined as material the possession of which is by its very nature unlawful. Material may be declared to be unlawful by appropriate statute, regulation, or order. For example, if liquor is prohibited aboard ship, a shipboard inspection for liquor must comply with the rules for inspections for contraband. Before unlawful weapons or other contraband may be the sub- ject of an inspection under Rule 313(b), there must be a determi- nation that “such property would affect adversely the security, military fitness, or good order and discipline of the command.” In the event of an adequate defense challenge under Rule 311 to an inspection for contraband, the prosecution must establish by a preponderance that such property would in fact so adversely af- fect the command. Although the question is an objective one, its resolution depends heavily on factors unique to the personnel or location inspected. If such contraband would adversely affect the ability of the command to complete its assigned mission in any significant way, the burden is met. The nature of the assigned mission is unimportant, for that is a matter within the prerogative of the chain of command only. The expert testimony of those within the chain of command of a given unit is worthy of great weight as the only purpose for permitting such an inspection is to ensure military readiness. The physiological or psychological ef- fects of a given drug on an individual are normally irrelevant except insofar as such evidence is relevant to the question of the user’s ability to perform duties without impaired efficiency. As inspections are generally quantitative examinations, the nature and amount of contraband sought is relevant to the question of the government’s burden. The existence of five unlawful drug users in an Army division, for example, is unlikely to meet the Rule’s test involving adverse effect, but five users in an Army platoon may well do so. The Rule does not require that personnel to be inspected be given preliminary notice of the inspection although such advance notice may well be desirable as a matter of policy or in the interests, as perhaps in gate inspections, of establishing an alter- native basis, such as consent, for the examination. R u l e 3 1 3 ( b ) r e q u i r e s t h a t i n s p e c t i o n s b e c o n d u c t e d i n a “reasonable fashion.” The timing of an inspection and its nature may be of importance. Inspections conducted at a highly unusual time are not inherently unreasonable—especially when a legiti- mate reason of such timing is present. However, a 0200 inspec- t i o n , f o r e x a m p l e , m a y b e u n r e a s o n a b l e d e p e n d i n g u p o n t h e surrounding circumstances. The Rule expressly permits the use of “any reasonable or natural technological aid.” Thus, dogs may be used to detect contraband in an otherwise valid inspection for contraband. This conclusion follows directly from the fact that inspections for contraband conducted in compliance with Rule 313 are lawful. Consequently, the technique of inspection is generally unimpor- tant under the new rules. The Committee did, however, as a matter of policy require that the natural or technological aid be “reasonable.” Rule 313(b) recognizes and affirms the commander’s power to conduct administrative examinations which are primarily non- prosecutorial in purpose. Personnel directing inspections for con- traband must take special care to ensure that such inspections comply with Rule 313(b) and thus do not constitute improper general searches or subterfuges. 1984 Amendment: Much of the foregoing Analysis was ren- dered obsolete by amendments made in 1984. The third sentence of Rule 313(b) was modified and the fourth and sixth sentences are new. The fourth sentence is new. The Military Rule of Evidence did not previously expressly address production of body fluids, per- haps because of United States v. Ruiz , 23 U.S.C.M.A. 181, 48 C . M . R . 7 9 7 ( 1 9 7 4 ) . R u i z w a s i m p l i c i t l y o v e r r u l e d i n U n i t e d States v. Armstrong , 9 M.J. 374 (C.M.A. 1980). Uncertainty con- cerning the course of the law of inspections may also have con- tributed to the drafter’s silence on the matter. See United States v. Roberts, 2 M.J. 31 (C.M.A. 1976); United States v. Thomas , 1 M.J. 397 (C.M.A. 1976). Much of the uncertainty in this area was dispelled in United States v. Middleton , 10 M.J. 123 (C.M.A. 1981). See also Murray v. Haldeman , 16 M.J. 74 (C.M.A. 1983). Despite the absence in the rules of express authority for com- pulsory production of body fluids, it apparently was the intent of the drafters to permit such production as part of inspections, relying at least in part on the medical purpose exception in Mil. R. Evid. 312(f). Mil. R. Evid. 312(d) applies only to nonconsen- sual extraction ( e.g., catheterization, drawing blood) of body flu- ids. This was noted in the Analysis, Mil. R. Evid. 312(d), which went on to state that “compulsory urinalysis, whether random or not, made for appropriate medical purposes, see Rule 312(f), and the product of such a procedure if otherwise admissible may be used at a court-martial.” There is considerable overlap between production of body fluid for a medical purpose under Mil. R. Evid. 312(f) and for deter- mining and ensuring military fitness in a unit, organization, instal- lation, vessel, aircraft, or vehicle. Frequently the two purposes are coterminous. Ultimately, the overall health of members of the organization is indivisible from the ability of the organization to perform the mission. To the extent that a “medical purpose” embraces anything relating to the physical or mental state of a person and that person’s ability to perform assigned duties, then the two purposes may be identical. Such a construction of “medi- cal purpose” would seem to swallow up the specific rules and limitations in Mil. R. Evid. 312(f), however. Therefore, a distinc- tion may be drawn between a medical purpose—at least to the extent that term is construed to concern primarily the health of the individual—and the goal of ensuring the overall fitness of the organization. For example, it may be appropriate to test—by c o m p u l s o r y p r o d u c t i o n o f u r i n e — p e r s o n s w h o s e d u t i e s e n t a i l highly dangerous or sensitive duties. The primary purpose of such tests is to ensure that the mission will be performed safely and properly. Preserving the health of the individual is an incident— albeit a very important one—of that purpose. A person whose urine is found to contain dangerous drugs is relieved from duty during gunnery practice, for example, not so much to preserve that person’s health as to protect the safety of others. On the other hand, a soldier who is extremely ill may be compelled to produce A22-27 App. 22, M.R.E. 313(b)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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urine (or even have it extracted) not so much so that soldier can return to duty—although the military has an interest in this—as for that soldier’s immediate health needs. Therefore, Mil. R. Evid. 313(b) provides an independent, al- though often closely related basis for compulsory production of body fluids, with Mil. R. Evid. 312(f). By expressly providing for both, possible confusion or an unnecessarily narrow construction under Mil. R. Evid. 312(f) will be avoided. Note that all of the requirements of Mil. R. Evid. 313(b) apply to an order to produce body fluids under that rule. This includes the requirement that the inspection be done in a reasonable fashion. This rule does not prohibit, as part of an otherwise lawful inspection, compelling a person to drink a reasonable amount of water in order to facilitate production of a urine sample. See United States v. Mitchell , 16 M.J. 654 (N.M.C.M.R. 1983). The sixth sentence is based on United States v. Middleton, supra. Middleton was not decided on the basis of Mil. R. Evid. 313, as the inspection in Middleton occurred before the effective date of the Military Rules of Evidence. The Court discussed Mil. R. Evid. 313(b), but “did not now decide on the legality of this Rule (or) bless its application.” United States v. Middleton, supra at 131. However, the reasoning and the holding in Middleton suggest that the former language in Mil. R. Evid. 313(b) may have established unnecessary burdens for the prosecution, yet still have been inadequate to protect against subterfuge inspections, under some circumstances. T h e f o r m e r l a n g u a g e a l l o w e d a n i n s p e c t i o n f o r “ u n l a w f u l weapons and other contraband when such property would affect adversely the security, military fitness, or good order and disci- pline of the command and when (1) there is a reasonable suspi- cion that such property is present in the command or (2) the examination is a previously scheduled examination of the com- mand.” This required a case-by-case showing of the adverse ef- f e c t s o f t h e w e a p o n s o r c o n t r a b a n d ( i n c l u d i n g c o n t r o l l e d substances) in the particular unit, organization, installation, air- craft, or vehicle examined. See Analysis, Mil. R. Evid. 313(b). In addition, the examination had to be based on a reasonable suspi- cion such items were present, or be previously scheduled. Middleton upheld an inspection which had as one of its pur- p o s e s t h e d i s c o v e r y o f c o n t r a b a n d — i . e . , d r u g s . S i g n i f i c a n t l y , there is no indication in Middleton that a specific showing of the adverse effects of such contraband in the unit or organization is necessary. The court expressly recognized ( see United States v. Middleton, supra at 129; cf. United States v. Trottier , 9 M.J. 337 (C.M.A. 1980)) the adverse effect of drugs on the ability of the armed services to perform the mission without requiring evidence on the point. Indeed, it may generally be assumed that if it is illegal to possess an item under a statute or lawful regulation, the adverse effect of such item on security, military fitness, or good order and discipline is established by such illegality, without requiring the commander to personally analyze its effects on a case-by-case basis and the submission of evidence at trial. The defense may challenge the constitutionality of the statute or the l e g a l i t y o f t h e r e g u l a t i o n ( c f . U n i t e d S t a t e s v . W i l s o n , 1 2 U.S.C.M.A. 165, 30 C.M.R. 165 (1961); United States v. Nation , 9 U.S.C.M.A. 724, 26 C.M.R. 504 (1958)) but this burden falls on the defense. Thus, this part of the former test is deleted as unnecessary. Note, however, that it may be necessary to demon- strate a valid military purpose to inspect for some noncontraband items. See United States v. Brown , 12 M.J. 420 (C.M.A. 1982). Middleton upheld broad authority in the commander to inspect f o r c o n t r a b a n d , a s w e l l a s o t h e r t h i n g s , “ w h e n a d e q u a t e safeguards are present which assure that the ‘inspection’ was really intended to determine and assure the readiness of the unit inspected, rather than merely to provide a subterfuge for avoiding limitations that apply to a search and seizure in a criminal investi- gation.” As noted above, the Court in Middleton expressly re- served judgment whether Mil. R. Evid. 313(b) as then written satisfied this test. The two prongs of the second part of the former test were intended to prevent subterfuge. However, they did not necessarily do so. Indeed, the “reasonable suspicion” test could be read to expressly authorize a subterfuge search. See, e.g., United States v. L a n g e , 1 5 U . S . C . M . A . 4 8 6 , 3 5 C . M . R . 4 5 8 ( 1 9 6 5 ) . T h e “previously scheduled” test is an excellent way to prove that an inspection was not directed as the result of a reported offense, and the new formulation so retains it. However, it alone does not ensure absence of prosecutorial motive when specific individuals are singled out, albeit well in advance, for special treatment. At the same time, the former test could invalidate a genuine inspection which had no prosecutorial purpose. For example, a commander whose unit was suddenly alerted for a special mission might find it necessary, even though the commander had no actual suspicion contraband is present, to promptly inspect for contraband, just to be certain none was present. A commander in such a position should not be prohibited from inspecting. The new language removes these problems and is more com- patible with Middleton. It does not establish unnecessary hurdles for the prosecution. A commander may inspect for contraband just as for any other deficiencies, problems, or conditions, without having to show any particular justification for doing so. As the fifth sentence in the rule indicates, any examination made prima- rily for the purpose of prosecution is not a valid inspection under the rule. The sixth sentence identifies those situations which, objectively, raise a strong likelihood of subterfuge. These situa- tions are based on United States v. Lange, supra and United States v. Hay , 3 M.J. 654, 655–56 (A.C.M.R. 1977) ( quoted in United States v. Middleton, supra at 127–28 n.7; see also United States v. Brown, supra ). “Specific individuals” means persons named or identified on the basis of individual characteristics, rather than by duty assignment or membership in a subdivision of the unit, organization, installation, vessel, aircraft, or vehicle, such as a platoon or squad, or on a random basis. See United States v. Harris , 5 M.J. 44 (C.M.A. 1978). The first sentence of subsection (b) makes clear that a part of one of the listed catego- r i e s m a y b e i n s p e c t e d . C f . U n i t e d S t a t e s v . K i n g , 2 M . J . 4 (C.M.A. 1976). The existence of one or more of the three circumstances identi- fied in the fifth sentence does not mean that the examination is, per se, not an inspection. The prosecution may still prove, by clear and convincing evidence, that the purpose of the examina- tion was to determine and ensure security, military fitness, and good order and discipline, and not for the primary purpose of prosecution. For example, when an examination is ordered imme- diately following a report of a specific offense in the unit, the prosecution might prove the absence of subterfuge by showing that the evidence of the particular offense had already been recov- A22-28 App. 22, M.R.E. 313(b) APPENDIX 22
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ered when the inspection was ordered and that general concern about the welfare of the unit was the motivation for the inspec- tion. Also, if a commander received a report that a highly dan- gerous item ( e.g., an explosive) was present in the command, it might be proved that the commander’s concern about safety was the primary purpose for the examination, not prosecution. In the case in which specific individuals are examined, or subjected to more intrusive examinations than others, these indicia of subter- fuge might be overcome by proof that these persons were not chosen with a view of prosecution, but on neutral ground or for an independent purpose— e.g., individuals were selected because they were new to the unit and had not been thoroughly examined previously. These examples are not exclusive. The absence of any of the three circumstances in the fifth sentence, while indicative of a proper inspection, does not neces- sarily preclude a finding of subterfuge. However, the prosecution need not meet the higher burden of persuasion when the issue is whether the commander’s purpose was prosecutorial, in the ab- sence of these circumstances. T h e n e w l a n g u a g e p r o v i d e s o b j e c t i v e c r i t e r i a b y w h i c h t o measure a subjective standard, i.e., the commander’s purpose. Because the standard is ultimately subjective, however, the objec- tive criteria are not conclusive. Rather they provide concrete and realistic guidance for commanders to use in the exercise of their inspection power, and for judicial authorities to apply in review- ing the exercise of that power. (c) Inventories. Rule 313(c) codifies prior law by recognizing the admissibility of evidence seized via bona fide inventory. The rationale behind this exception to the usual probable cause re- quirement is that such an inventory is not prosecutorial in nature and is a reasonable intrusion. See, e.g., South Dakota v. Opper- man, 428 U.S. 364 (1976). An inventory may not be used as subterfuge search, United States v. Mossbauer , 20 C.M.A. 584, 44 C.M.R. 14 (1971), and the basis for an inventory and the procedure utilized may be subject to challenge in any specific case. Inventories of the prop- erty of detained individuals have usually been sustained. See, e.g., U n i t e d S t a t e s v . B r a s h e a r s , 2 1 C . M . A . 5 5 2 , 4 5 C . M . R . 3 2 6 (1972). The committee does not, however, express an opinion as to the lawful scope of an inventory. See, e.g., South Dakota v. Opper- man, 428 U.S. 364 (1976), in which the court did not determine the propriety of opening the locked trunk or glove box during the inventory of a properly impounded automobile. Inventories will often be governed by regulation. 2013 Amendment. The definition of “inventory” was added to subsection (c) and further distinguishes inventories from inspec- tions. This revision is stylistic and addresses admissibility rather t h a n c o n d u c t . S e e s u p r a , G e n e r a l P r o v i s i o n s A n a l y s i s . T h e drafters did not intend to change any result in any ruling on evidence admissibility. Rule 314 Searches not requiring probable cause The list of non-probable cause searches contained within Rule 314 is intended to encompass most of the non-probable cause searches common in the military environment. The term “search” is used in Rule 314 in its broadest non-technical sense. Consequently, a “search” for purposes of Rule 314 may include examinations that are not “searches” within the narrow technical sense of the Fourth Amendment. See, e.g. , Rule 314(j). Insofar as Rule 314 expressly deals with a given type of search, the Rule preempts the area in that the Rule must be followed even should the Supreme Court issue a decision more favorable to the Government. If such a decision involves a non-probable cause search of a type not addressed in Rule 314, it will be fully applicable to the Armed Forces under Rule 314(k) unless other authority prohibits such application. (a) General Rule. Rule 314(a) provides that evidence obtained from a search conducted pursuant to Rule 314 and not in viola- tion of another Rule, e.g., Rule 312, Bodily Views and Intrusions, is admissible when relevant and not otherwise inadmissible. (b) Border Searches. Rule 314(b) recognizes that military person- nel may perform border searches when authorized to do so by Congress. (c) Searches upon entry to United States installations, aircraft, and vessels abroad. Rule 314(c) follows the opinion of Chief Judge Fletcher in United States v. Rivera , 4 M.J. 215, 216 n.2 (C.M.A. 1978), in which he applied the border search doctrine to entry searches of United States installations or enclaves on for- eign soil. The search must be reasonable and its intent, in line with all border searches, must be primarily prophylactic. This authority is additional to any other powers to search or inspect that a commander may hold. Although Rule 314(c) is similar to Rule 313(b), it is distinct in terms of its legal basis. Consequently, a search performed pur- suant to Rule 314(c) need not comply with the burden of proof requirement found in Rule 313(b) for contraband inspections even though the purpose of the 314(c) examination is to prevent intro- duction of contraband into the installation, aircraft or vessel. A Rule 314(c) examination must, however, be for a purpose denominated in the rule and must be rationally related to such purpose. A search pursuant to Rule 314(c) is possible only upon entry to the installation, aircraft, or vessel, and an individual who chooses not to enter removes any basis for search pursuant to Rule 314(c). The Rule does not indicate whether discretion may be vested in the person conducting a properly authorized Rule 314(c) search. It was the opinion of members of the Committee, however, that such discretion is proper considering the Rule’s underlying basis. 1984 Amendment: Subsection (c) was amended by adding “or e x i t f r o m ” b a s e d o n U n i t e d S t a t e s v . A l l e y n e , 1 3 M . J . 3 3 1 (C.M.A. 1982). (d) Searches of government property. Rule 314(d) restates prior law, see, e.g., United States v. Weshenfelder , 20 C.M.A. 416, 43 C.M.R. 256 (1971), and recognizes that personnel normally do not have sufficient interest in government property to have a reasonable expectation of privacy in it. Although the rule could be equally well denominated as a lack of adequate interest, see, Rule 311(a)(2), it is more usually expressed as a non-probable cause search. The Rule recognizes that certain government prop- erty may take on aspects of private property allowing an individ- ual to develop a reasonable expectation of privacy surrounding it. Wall or floor lockers in living quarters issued for the purpose of storing personal property will normally, although not necessarily, involve a reasonable expectation of privacy. It was the intent of the Committee that such lockers give rise to a rebuttable pre- sumption that they do have an expectation of privacy, and that A22-29 App. 22, M.R.E. 314(d)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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insofar as other government property is concerned such property gives rise to a rebuttable presumption that such an expectation is absent. Public property, such as streets, parade grounds, parks, and office buildings rarely if ever involves any limitations upon the ability to search. (e) Consent Searches. (1) General rule. The rule in force before 1980 was found in Para. 152, MCM, 1969 (Rev.), the relevant sections of which state: A search of one’s person with his freely given consent, or of property with the freely given consent of a person entitled in the situation involved to waive the right to immunity from an unrea- sonable search, such as an owner, bailee, tenant, or occupant as the case may be under the circumstances [is lawful]. If the justification for using evidence obtained as a result of a search is that there was a freely given consent to the search, that consent must be shown by clear and positive evidence. Although Rule 314(e) generally restates prior law without sub- stantive change, the language has been recast. The basic rule for consent searches is taken from Schneckloth v. Bustamonte , 412 U.S. 218 (1973). (2) Who may consent. The Manual language illustrating when third parties may consent to searches has been omitted as being insufficient and potentially misleading and has been replaced by Rule 314(e)(2). The Rule emphasizes the degree of control that an individual has over property and is intended to deal with circum- stances in which third parties may be asked to grant consent. See, e.g., Frazier v. Cupp , 394 U.S. 731 (1969); Stoner v. California , 376 U.S. 483 (1964); United States v. Mathis , 16 C.M.A. 511, 37 C.M.R. 142 (1967). It was the Committee’s intent to restate prior law in this provision and not to modify it in any degree. Conse- quently, whether an individual may grant consent to a search of property not his own is a matter to be determined on a case by case basis. (3) Scope of consent. Rule 314(e)(3) restates prior law. See, e.g., United States v. Castro , 23 C.M.A. 166, 48 C.M.R. 782 (1974); United States v. Cady , 22 C.M.A. 408, 47 C.M.R. 345 (1973). (4) Voluntariness. Rule 314(e)(3) requires that consent be vol- untary to be valid. The second sentence is taken in substance from Schneckloth v. Bustamonte , 412 U.S. 218, 248–49 (1973). The specific inapplicability of Article 31(b) warnings follows Schneckloth and complies with United States v. Morris , 1 M.J. 352 (C.M.A. 1976) (opinion by Chief Judge Fletcher with Judge Cook concurring in the result). Although not required, such warn- ings are, however, a valuable indication of a voluntary consent. The Committee does not express an opinion as to whether rights warnings are required prior to obtaining an admissible statement as to ownership or possession of property from a suspect when that admission is obtained via a request for consent to search. (5) Burden of proof. Although not constitutionally required, the burden of proof in Para. 152 of the 1969 Manual for consent searches has been retained in a slightly different form—“clear and convincing” in place of “clear and positive”—on the presumption that the basic nature of the military structure renders consent more suspect than in the civilian community. “Clear and convinc- ing evidence” is intended to create a burden of proof between the preponderance and beyond a reasonable doubt standards. The Rule expressly rejects a different burden for custodial consents. The law is this area evidences substantial confusion stemming i n i t i a l l y f r o m l a n g u a g e u s e d i n U n i t e d S t a t e s v . J u s t i c e , 1 3 C.M.A. 31, 34, 32 C.M.R. 31, 34 (1962): “It [the burden of proof] is an especially heavy obligation if the accused was in custody. . .,” which was taken in turn from a number of civilian federal court decisions. While custody should be a factor resulting in an especially careful scrutiny of the circumstances surrounding a possible consent, there appears to be no legal or policy reason to require a higher burden of proof. (f) Frisks incident to a lawful stop. Rule 314(f) recognizes a frisk as a lawful search when performed pursuant to a lawful stop. The primary authority for the stop and frisk doctrine is Terry v. Ohio , 392 U.S. 1 (1968), and the present Manual lacks any reference to either stops or frisks. Hearsay may be used in deciding to stop and frisk. See, e.g., Adams v. Williams , 407 U.S. 143 (1972). The Rule recognizes the necessity for assisting police or law enforcement personnel in their investigations but specifically does not address the issue of the lawful duration of a stop nor of the nature of the questioning, if any, that may be involuntarily ad- dressed to the individual stopped. See Brown v. Texas , 440 U.S. 903 (1979), generally prohibiting such questioning in civilian life. Generally, it would appear that any individual who can be law- fully stopped is likely to be a suspect for the purposes of Article 31(b). Whether identification can be demanded of a military sus- pect without Article 31(b) warnings is an open question and may be dependent upon whether the identification of the suspect is relevant to the offense possibly involved. See Frederic Lederer, Rights Warnings in the Armed Services , 72 Mil. L. Rev. 1, 40–41 (1976). 1984 Amendment: Subsection (f)(3) was added based on Michi- gan v. Long , 463 U.S. 1032 (1983). (g) Searches incident to a lawful apprehension. The 1969 Manual rule was found in Para. 152 and stated: A search conducted as an incident of lawfully apprehending a person, which may include a search of his person, of the clothing he is wearing, and of property which, at time of apprehension, is in his immediate possession or control, or of an area from within which he might gain possession of weapons or destructible evi- dence; and a search of the place where the apprehension is made [is lawful]. Rule 314(g) restates the principle found within the Manual text but utilizes new and clarifying language. The Rule expressly requires that an apprehension be lawful. ( 1 ) G e n e r a l R u l e . R u l e 3 1 4 ( g ) ( 1 ) e x p r e s s l y a u t h o r i z e s t h e search of a person of a lawfully apprehended individual without further justification. ( 2 ) S e a r c h f o r w e a p o n s a n d d e s t r u c t i b l e e v i d e n c e . R u l e 314(g)(2) delimits the area that can be searched pursuant to an apprehension and specifies that the purpose of the search is only to locate weapons and destructible evidence. This is a variation of the authority presently in the Manual and is based upon the Supreme Court’s decision in Chimel v. California , 395 U.S. 752 (1969). It is clear from the Court’s decision in United States v. Chadwick, 438 U.S. 1 (1977), that the scope of a search pursuant to a lawful apprehension must be limited to those areas which an individual could reasonably reach and utilize. The search of the area within the immediate control of the person apprehended is A22-30 App. 22, M.R.E. 314(d) APPENDIX 22
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thus properly viewed as a search based upon necessity—whether one based upon the safety of those persons apprehending or upon the necessity to safeguard evidence. Chadwick, holding that po- lice could not search a sealed footlocker pursuant to an arrest, stands for the proposition that the Chimel search must be limited by its rationale. That portion of the 1969 Manual dealing with intrusive body searches has been incorporated into Rule 312. Similarly that por- tion of the Manual dealing with search incident to hot pursuit of a person has been incorporated into that portion of Rule 315 deal- ing with exceptions to the need for search warrants or authoriza- tions. 1984 Amendment: Subsection (g)(2) was amended by adding language to clarify the permissible scope of a search incident to apprehension of the occupant of an automobile based on New York v. Belton , 453 U.S. 454 (1981). The holding of the Court used the term “automobile” so that word is used in the rule. It is intended that the term “automobile” have the broadest possible meaning. (3) Examination for other persons. Rule 314(g)(3) is intended to protect personnel performing apprehensions. Consequently, it is extremely limited in scope and requires a good faith and reasona- ble belief that persons may be present who might interfere with the apprehension of individuals. Any search must be directed towards the finding of such persons and not evidence. An unlawful apprehension of the accused may make any subse- quent statement by the accused inadmissible. Dunaway v. New York, 442 U.S. 200 (1979). 1994 Amendment. The amendment to Mil. R. Evid. 314(g)(3), based on Maryland v. Buie , 494 U.S. 325 (1990), specifies the circumstances permitting the search for other persons and distin- guishes between protective sweeps and searches of the attack area. Subsection (A) permits protective sweeps in the military. The last sentence of this subsection clarifies that an examination under the rule need not be based on probable cause. Rather, this subsec- tion adopts the standard articulated in Terry v. Ohio , 392 U.S. 1 (1968) and Michigan v. Long , 463 U.S. 1032 (1983). As such, there must be articulable facts that, taken together with the ra- tional inferences from those facts, would warrant a reasonably prudent officer in believing the area harbors individuals posing a danger to those at the site of apprehension. The previous language referring to those “who might interfere” was deleted to conform to the standards set forth in Buie. An examination under this rule is limited to a cursory visual inspection of those places in which a person might be hiding. A new subsection (B) was also added as a result of Buie, supra. The amendment clarifies that apprehending officials may examine the “attack area” for persons who might pose a danger to apprehending officials. See Buie, 494 U.S. at 334. The attack area is that area immediately adjoining the place of apprehension from which an attack could be immediately launched. This amendment makes it clear that apprehending officials do not need any suspi- cion to examine the attack area. (h) Searches within jails, confinement facilities, or similar facili- t i e s . P e r s o n n e l c o n f i n e d i n a m i l i t a r y c o n f i n e m e n t f a c i l i t y o r housed in a facility serving a generally similar purpose will nor- mally yield any normal Fourth Amendment protections to the reasonable needs of the facility. See United States v. Maglito , 20 C.M.A. 456, 43 C.M.R. 296 (1971). See also Rule 312. (i) Emergency searches to save life or for related purpose. This type of search is not found within the 1969 Manual provision but is in accord with prevailing civilian and military case law. See United States v. Yarborough , 50 C.M.R. 149, 155 (A.F.C.M.R. 1975). Such a search must be conducted in good faith and may not be a subterfuge in order to circumvent an individual’s Fourth Amendment protections. (j) Searches of open fields or woodlands. This type of search is taken from 1969 Manual paragraph 152. Originally recognized in Hester v. United States , 265 U.S. 57 (1924), this doctrine was revived by the Supreme Court in Air Pollution Variance Board v. Western Alfalfa Corp. , 416 U.S. 861 (1974). Arguably, such a search is not a search within the meaning of the Fourth Amend- ment. In Hester, Mr. Justice Holmes simply concluded that “the special protection accorded by the 4th Amendment to the people in their [persons, houses, papers, and effects] is not extended to the open fields.” 265 U.S. at 59. In relying on Hester, the Court in Air Pollution Variance Board noted that it was “not advised that he [the air pollution investigator] was on premises from which the public was excluded.” 416 U.S. at 865. This suggests that the doctrine of open fields is subject to the caveat that a reasonable expectation of privacy may result in application of the Fourth Amendment to open fields. (k) Other searches. Rule 314(k) recognizes that searches of a type not specified within the Rule but proper under the Constitu- tion are also lawful. 2013 Amendment. Language was added to subsection (a). This language elucidates that the rules as written afford at least the minimal amount of protection required under the Constitution as applied to service members. If new case law is developed after the publication of these rules which raises the minimal constitu- tional standards for the admissibility of evidence, that standard will apply to evidence admissibility, rather than the standard es- tablished under these rules. Subsection (c) limits the ability of a commander to search persons or property upon entry to or exit from the installation alone, rather than anywhere on the installation, despite the indica- tion of some courts in dicta that security personnel can search a p e r s o n a l l y o w n e d v e h i c l e a n y w h e r e o n a m i l i t a r y i n s t a l l a t i o n based on no suspicion at all. See, e.g., United States v. Rogers , 549 F.2d 490, 493-94 (8th Cir. 1976). Allowing suspicionless searches anywhere on a military installation too drastically nar- rows an individual’s privacy interest. Although individuals cer- tainly have a diminished expectation of privacy when they are on a military installation, they do not forgo their privacy interest completely. A Discussion section was added below subsection (c) to ad- dress searches conducted contrary to a treaty or agreement. That material was previously located in subsection (c). The drafters recommended moving it to the Discussion because it addresses conduct rather than the admissibility of evidence. See supra, Gen- eral Provisions Analysis. Although not explicitly stated in subsection (e)(2), the Supreme Court’s holding in Georgia v. Randolph , 547 U.S. 103 (2006), applies to this subsection. See id . at 114-15 (holding that a war- rantless search was unreasonable if a physically present co-tenant A22-31 App. 22, M.R.E. 314(k)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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expressly refused to give consent to search, even if another co- tenant had given consent). I n s u b s e c t i o n ( f ) ( 2 ) , t h e p h r a s e “ r e a s o n a b l y b e l i e v e d ” w a s changed to “reasonably suspected.” This change aligns the rule with recent case law and alleviates any confusion that “reasonably believed” established a higher level of suspicion required to con- duct a stop-and-frisk than required by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The “reasonably suspected” standard conforms to the language of the Supreme Court in Arizona v. Johnson, 555 U.S. 323, 326 (2009), in which the Court stated: “To justify a pat down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasona- bly suspected of criminal activity, the police must harbor reasona- ble suspicion that the person subjected to the frisk is armed and dangerous.” This standard, and not a higher one, is required before an individual can be stopped and frisked under this subsec- tion. Additionally, a discussion paragraph was added following this subsection to further expound on the nature and scope of the search, based on case law. See, e.g., Terry , 392 U.S. at 30-31; Pennsylvania v. Mimms , 434 U.S. 106, 111-12 (1977). In subsection (f)(3), the drafters recommended changing the phrase “reasonable belief” to “reasonable suspicion” for the same reasons discussed above. The discussion section was added to provide more guidance on the nature and scope of the search, based on case law. See, e.g., Michigan v. Long , 463 U.S. 1032, 10 49 (1983) (“the search of the passenger compartment of an auto- mobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasona- ble belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons”); Mim- ms, 434 U.S. at 111 (no Fourth Amendment violation when the driver was ordered out of the car after a valid traffic stop but without any suspicion that he was armed and dangerous because “what is at most a mere inconvenience cannot prevail when bal- anced against legitimate concerns for the officer’s safety”); Mary- land v. Wilson , 519 U.S. 408 (1997) (extending the holding in Mimms to passengers as well as drivers). The language from former subsection (g)(2), describing the search of an automobile incident to a lawful arrest of an occupant, was moved to the discussion paragraph immediately following subsection (f)(3). The drafters recommended this change because it addresses conduct rather than the admissibility of evidence. See supra, General Provisions Analysis. The discussion section is based on the Supreme Court’s holding in Arizona v. Gant , 556 U.S. 332, 351 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest”). This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 315 Probable cause searches (a) General Rule— Rule 315 states that evidence obtained pur- suant to the Rule is admissible when relevant and not otherwise admissible under the Rules. (b) Definitions. ( 1 ) A u t h o r i z a t i o n t o s e a r c h . R u l e 3 1 5 ( b ) ( 1 ) d e f i n e s a n “authorization to search” as an express permission to search is- sued by proper military authority whether commander or judge. As such, it replaces the term “search warrant” which is used in the Rules only when referring to a permission to search given by proper civilian authority. The change in terminology reflects the unique nature of the armed forces and of the role played by commanders. (2) Search warrant. The expression “search warrant” refers only to the authority to search issued by proper civilian authority. (c) Scope of authorization. Rule 315(c) is taken generally from Para. 152(1)–(3) of the 1969 Manual except that military jurisdic- tion to search upon military installations or in military aircraft, vessels, or vehicles has been clarified. Although civilians and civilian institutions on military installations are subject to search pursuant to a proper search authorization, the effect of any appli- cable federal statute or regulation must be considered. E.g., The Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401–3422, and DOD Directive 5400.12 (Obtaining Information From Finan- cial Institutions). R u l e 3 1 5 ( c ) ( 4 ) i s a m o d i f i c a t i o n o f p r i o r l a w . S u b d i v i s i o n (c)(4)(A) is intended to ensure cooperation between Department of Defense agencies and other government agencies by requiring prior consent to DOD searches involving such other agencies. Although Rule 315(c)(4)(B) follows the 1969 Manual in permit- ting searches of “other property in a foreign country” to be au- thorized pursuant to subdivision (d), subdivision (c) requires that all applicable treaties be complied with or that prior concurrence with an appropriate representative of the foreign nation be ob- tained if no treaty or agreement exists. The Rule is intended to foster cooperation with host nations and compliance with all exis- ting international agreements. The rule does not require specific approval by foreign authority of each search (unless, of course, applicable treaty requires such approval); rather the Rule permits prior blanket or categorical approvals. Because Rule 315(c)(4) is designed to govern intragovernmental and international relation- ships rather than relationships between the United States and its citizens, a violation of these provisions does not render a search unlawful. (d) Power to authorize. Rule 315(d) grants power to authorize searches to impartial individuals of the included classifications. The closing portion of the subdivision clarifies the decision of the Court of Military Appeals in United States v. Ezell , 6 M.J. 307 (C.M.A. 1979), by stating that the mere presence of an authoriz- ing officer at a search does not deprive the individual of an otherwise neutral character. This is in conformity with the deci- sion of the United States Supreme Court in Lo-Ji Sales v. New York, 442 U.S. 319 (1979), from which the first portion of the language has been taken. The subdivision also recognizes the propriety of a commander granting a search authorization after taking a pretrial action equivalent to that which may be taken by a federal district judge. For example, a commander might author- ize use of a drug detector dog, an action arguably similar to the granting of wiretap order by a federal judge, without necessarily depriving himself or herself of the ability to later issue a search A22-32 App. 22, M.R.E. 314(k) APPENDIX 22
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authorization. The question would be whether the commander has acted in the first instance in an impartial judicial capacity. (1) Commander. Rule 315(d)(1) restates the prior rule by rec- ognizing the power of commanders to issue search authorizations u p o n p r o b a b l e c a u s e . T h e R u l e e x p l i c i t l y a l l o w s n o n - o f f i c e r s serving in a position designated by the Secretary concerned as a position of command to issue search authorizations. If a non- officer assumes command of a unit, vessel, or aircraft, and the command position is one recognized by regulations issued by the Secretary concerned, e.g., command of a company, squadron, vessel, or aircraft, the non-officer commander is empowered to grant search authorizations under this subdivision whether the assumption of command is pursuant to express appointment or devolution of command. The power to do so is thus a function of position rather than rank. The Rule also allows a person serving as officer-in-charge or in a position designated by the Secretary as a position analogous to an officer-in-charge to grant search authorizations. The term “of- ficer-in-charge” is statutorily defined, Article 1(4), as pertaining only to the Navy, Coast Guard, and Marine Corps, and the change will allow the Army and Air Force to establish an analogous position should they desire to do so in which case the power to authorize searches would exist although such individuals would not be “officers-in-charge” as that term is used in the U.C.M.J. (2) Delegee. Former subsection (2), which purported to allow delegation of the authority to authorize searches, was deleted in 1984, based on United States v. Kalscheuer , 11 M.J. 373 (C.M.A. 1981). Subsection (3) was renumbered as subsection (2). (3) Military judge. Rule 315(d)(2) permits military judges to issue search authorizations when authorized to do so by the Sec- retary concerned. MILITARY MAGISTRATES MAY ALSO BE E M P O W E R E D T O G R A N T S E A R C H A U T H O R I Z A T I O N S . This recognizes the practice now in use in the Army but makes such practice discretionary with the specific Service involved. (e) Power to search. Rule 315(e) specifically denominates those persons who may conduct or authorize a search upon probable cause either pursuant to a search authorization or when such an authorization is not required for reasons of exigencies. The Rule recognizes, for example, that all officers and non-commissioned officers have inherent power to perform a probable cause search without obtaining of a search authorization under the circum- stances set forth in Rule 315(g). The expression “criminal investi- g a t o r ” w i t h i n R u l e 3 1 5 ( e ) i n c l u d e s m e m b e r s o f t h e A r m y Criminal Investigation Command, the Marine Corps Criminal In- vestigation Division, the Naval Criminal Investigative Service, the Air Force Office of Special Investigations, and Coast Guard In- vestigative Service. ( f ) B a s i s f o r s e a r c h a u t h o r i z a t i o n s . R u l e 3 1 5 ( f ) r e q u i r e s t h a t probable cause be present before a search can be conducted under the Rule and utilizes the basic definition of probable cause found in 1969 Manual Para. 152. For reasons of clarity the Rule sets forth a simple and general test to be used in all probable cause determinations: probable c a u s e c a n e x i s t o n l y i f t h e a u t h o r i z i n g i n d i v i d u a l h a s a “reasonable belief that the information giving rise to the intent to search is believable and has a factual basis.” This test is taken from the “two prong test” of Aguilar v. Texas , 378 U.S. 108 (1964), which was incorporated in Para. 152 of the 1969 Manual. The Rule expands the test beyond the hearsay and informant area. The “factual basis” requirement is satisfied when an individual reasonably concludes that the information, if reliable, adequately apprises the individual that the property in question is what it is alleged to be and is where it is alleged to be. Information is “believable” when an individual reasonably concludes that it is sufficiently reliable to be believed. The twin test of “believability” and “basis in fact” must be met in all probable cause situations. The method of application of the test will differ, however, depending upon circumstances. The fol- lowing examples are illustrative: (1) An individual making a probable cause determination who observes an incident first hand is only required to determine if the observation is reliable and that the property is likely to be what it appears to be. For example, an officer who believes that she sees an individ- ual in possession of heroin must first conclude that the observa- t i o n w a s r e l i a b l e ( i . e . , i f h e r e y e s i g h t w a s a d e q u a t e — s h o u l d glasses have been worn—and if there was sufficient time for adequate observation) and that she has sufficient knowledge and experience to be able to reasonably believe that the substance in question was in fact heroin. (2) An individual making a probable cause determination who relies upon the in person report of an informant must determine both that the informant is believable and that the property ob- served is likely to be what the observer believes it to be. The determining individual may rely upon the demeanor of the in- formant in order to determine whether the observer is believable. An individual known to have a “clean record” and no bias against the individual to be affected by the search is likely to be credible. (3) An individual making a probable cause determination who relies upon the report of an informant not present before the authorizing individual must determine both that the informant is credible and that the property observed is likely to be what the informant believed it to be. The determining individual may uti- lize one or more of the following factors, among others, in order to determine whether the informant is believable: (A) Prior record as a reliable informant. Has the informant given information in the past which proved to be accurate? (B) Corroborating detail. Has enough detail of the inform- ant’s information been verified to imply that the remainder can reasonably be presumed to be accurate? (C) Statement against interest. Is the information given by the informant sufficiently adverse to the fiscal or penal interest of the informant to imply that the information may reasonably be presumed to be accurate? ( D ) G o o d c i t i z e n . I s t h e c h a r a c t e r o f t h e i n f o r m a n t , a s known by the individual making the probable cause determina- tion, such as to make it reasonable to presume that the informa- tion is accurate? Mere allegations may not be relied upon. For example, an individual may not reasonably conclude that an informant is relia- ble simply because the informant is so named by a law enforce- m e n t a g e n t . T h e i n d i v i d u a l m a k i n g t h e p r o b a b l e c a u s e determination must be supplied with specific details of the in- formant’s past actions to allow that individual to personally and reasonably conclude that the informant is reliable. Information transmitted through law enforcement or command A22-33 App. 22, M.R.E. 315(f)(3)(D)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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channels is presumed to have been reliably transmitted. This pre- sumption may be rebutted by an affirmative showing that the information was transmitted with intentional error. The Rule permits a search authorization to be issued based upon information transmitted by telephone or other means of communication. The Rule also permits the Secretaries concerned to impose additional procedural requirements for the issuance of search au- thorizations. 1984 Amendment: The second sentence of subsection (f)(1) was deleted based on Illinois v. Gates, 462 U.S.213 (1983), which overturned the mandatory two-prong test of Aguilar v. Texas, supra. Although the second sentence may be technically compati- ble with Gates, it could be construed as requiring strict applica- tion of the standards of Aguilar. The former language remains good advice for those deciding the existence of probable cause, especially for uncorroborated tips, but is not an exclusive test. See also Massachusetts v. Upton , 466 U.S. 767 (1984). (g) Exigencies. Rule 315(g) restates prior law and delimits those circumstances in which a search warrant or authorization is un- necessary despite the ordinary requirement for one. In all such cases probable cause is required. Rule 315(g)(1) deals with the case in which the time necessary to obtain a proper authorization would threaten the destruction or concealment of the property or evidence sought. Rule 315(g)(2) recognizes that military necessity may make it tactically impossible to attempt to communicate with a person who could grant a search authorization. Should a nuclear subma- rine on radio silence, for example, lack a proper authorizing individual (perhaps for reasons of disqualification), no search could be conducted if the Rule were otherwise unless the ship broke radio silence and imperiled the vessel or its mission. Under the Rule this would constitute an “exigency.” “Military opera- tional necessity” includes similar necessity incident to the Coast Guard’s performance of its maritime police mission. The Rule also recognizes in subdivision (g)(3) the “automobile exception” created by the Supreme Court. See, e.g., United States v. Chadwick, 433 U.S. 1 (1977); South Dakota v. Opperman , 428 U.S. 364 (1976); Texas v. White, 423 U.S. 67 (1975), and, subject to the constraints of the Constitution, the Manual, or the Rules, applies it to all vehicles. While the exception will thus apply to vessels and aircraft as well as to automobiles, trucks, et al, it must be applied with great care. In view of the Supreme Court’s reasoning that vehicles are both mobile and involve a diminished expectation of privacy, the larger a vehicle is, the more unlikely it is that the exception will apply. The exception has no application to government vehicles as they may be searched without formal warrant or authorization under Rule 314(d). 1984 Amendment: The last sentence of subsection (g) was amended by deleting “presumed to be.” The former language could be construed to permit the accused to prove that the vehicle w a s i n f a c t i n o p e r a b l e ( t h a t i s , t o r e b u t t h e p r e s u m p t i o n o f operability) thereby negating the exception, even though a reason- able person would have believed the vehicle inoperable. The fact of inoperability is irrelevant; the test is whether the official(s) s e a r c h i n g k n e w o r s h o u l d h a v e k n o w n t h a t t h e v e h i c l e w a s inoperable. (h) Execution. Rule 314(h)(1) provides for service of a search warrant or search authorization upon a person whose property is to be searched when possible. Noncompliance with the Rule does not, however, result in exclusion of the evidence. Similarly, Rule 314(h)(2) provides for the inventory of seized property and provi- sions of a copy of the inventory to the person from whom the property was seized. Noncompliance with the subdivision does not, however, make the search or seizure unlawful. Under Rule 315(h)(3) compliance with foreign law is required when execut- ing a search authorization outside the United States, but noncom- pliance does not trigger the exclusionary rule. 2013 Amendment. Former subsection (h) was moved so that it immediately follows subsection (a). The drafters recommended changing this language to a discussion paragraph because it gen- erally applies to the entire rule, rather than any particular subsec- t i o n a n d a l s o b e c a u s e i t a d d r e s s e s c o n d u c t r a t h e r t h a n t h e admissibility of evidence. See supra, General Provisions Analysis. I n s u b s e c t i o n ( b ) , t h e t e r m “ a u t h o r i z a t i o n t o s e a r c h ” w a s changed to “search authorization.” This amendment aligns the rule with the term more commonly used by practitioners and law enforcement. The drafters recommended moving former subsec- tion (c)(4) to a discussion paragraph immediately following sub- s e c t i o n ( c ) b e c a u s e i t a d d r e s s e s c o n d u c t r a t h e r t h a n t h e admissibility of evidence. See supra, General Provisions Analysis. The second sentence in former subsection (d)(2) was moved to subsection (d). This change elucidates that its content applies to both commanders under subsection (d)(1) and military judges or magistrates under subsection (d)(2). The drafters made this rec- ommendation in reliance on CAAF’s decision in United States v. Huntzinger, 69 M.J. 1 (C.A.A.F. 2010), which held that a com- mander is not per se disqualified from authorizing a search under this rule even if he or she has participated in investigative activi- ties in furtherance of his or her command responsibilities. F o r m e r s u b s e c t i o n ( h ) ( 4 ) , e n t i t l e d , “ S e a r c h w a r r a n t s , ” w a s moved to subsection (e), now entitled “Who May Search.” This change co-locates it with the subsection discussing the execution of search authorizations. In subsection (f)(2), the word “shall” was changed to “will.” This change brings the rule in conformance with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as “shall” and “should” because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. In recommending that amendment, the committee did not intend to change any result in any ruling on evidence admissibility. Subsection (g) was revised. The drafters’ intent behind this revision was to include a definition of exigency rather than to provide examples that may not encompass the wide range of situations where exigency might apply. The definition is derived from Supreme Court jurisprudence. See Kentucky v. King , 563 U.S. 452 (2011). The drafters recommended retaining language concerning military operational necessity as an exigent circum- stance because this rule may be applied to a unique military context where it might be difficult to communicate with a person authorized to issue a search authorization. See, e.g., United States v. Rivera, 10 M.J. 55 (C.M.A. 1980) (noting that exigency might exist because of difficulties in communicating with an authorizing official, although the facts of that case did not support such a conclusion). Nothing in this rule would prohibit a law enforce- ment officer from entering a private residence without a warrant to protect the individuals inside from harm, as that is not a search under the Fourth Amendment. See, e.g., Brigham City v. Stuart , A22-34 App. 22, M.R.E. 315(f)(3)(D) APPENDIX 22
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547 U.S. 398 (2006) (holding that, regardless of their subjective motives, police officers were justified in entering a home without a warrant, under exigent circumstances exception to warrant re- quirement, as they had an objectively reasonable basis for believ- i n g t h a t a n o c c u p a n t w a s s e r i o u s l y i n j u r e d o r i m m i n e n t l y threatened with injury). This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 316 Seizures (a) General Rule. Rule 316(a) provides that evidence obtained pursuant to the Rule is admissible when relevant and not other- w i s e i n a d m i s s i b l e u n d e r t h e R u l e s . R u l e 3 1 6 r e c o g n i z e s t h a t searches are distinct from seizures. Although rare, a seizure need not be proceeded by a search. Property may, for example, be seized after being located pursuant to plain view, see subdivision (d)(4)(C). Consequently, the propriety of a seizure must be con- sidered independently of any preceding search. (b) Seizures of property. Rule 316(b) defines probable cause in the same fashion as defined by Rule 315 for probable cause searches. See the Analysis of Rule 315(f)(2). The justifications for seizing property are taken from 1969 Manual Para. 152. Their number has, however, been reduced for reasons of brevity. No distinction is made between “evidence of crime” and “instrumen- talities or fruits of crime.” Similarly, the proceeds of crime are also “evidence of crime.” 1984 Amendment: The second sentence of subsection (b) was deleted based on Illinois v. Gates , 462 U.S. 213 (1983). See Analysis, Mil. R. Evid. 315(f)(1), supra. (c) Apprehension. Apprehensions are, of course, seizures of the person and unlawful apprehensions may be challenged as an un- lawful seizure. See, e.g., Dunaway v. New York , 442 U.S. 200 ( 1 9 7 9 ) ; U n i t e d S t a t e s v . T e x i d o r - P e r e z , 7 M . J . 3 5 6 ( C . M . A . 1979). (d) Seizure of property or evidence. (1) Abandoned property. Rule 316(d) restates prior law, not addressed specifically by the 1969 Manual chapter, by providing that abandoned property may be seized by anyone at any time. (2) Consent. Rule 316(d)(2) permits seizure of property with appropriate consent pursuant to Rule 314(e). The prosecution must demonstrate a voluntary consent by clear and convincing evidence. (3) Government property. Rule 316(d)(3) permits seizure of government property without probable cause unless the person to whom the property is issued or assigned has a reasonable expecta- tion of privacy therein at the time of seizure. In this regard, note Rule 314(d) and its analysis. ( 4 ) O t h e r p r o p e r t y . R u l e 3 1 6 ( d ) ( 4 ) p r o v i d e s f o r s e i z u r e o f property or evidence not otherwise addressed by the Rule. There must be justification to exercise control over the property. Al- though property may have been lawfully located, it may not be seized for use at trial unless there is a reasonable belief that the property is of a type discussed in Rule 316(b). Because the Rule is inapplicable to seizures unconnected with law enforcement, it does not limit the seizure of property for a valid administrative purpose such as safety. Property or evidence may be seized upon probable cause when seizure is authorized or directed by a search warrant or authoriza- tion, Rule 316(d)(4)(A); when exigent circumstances pursuant to Rule 315(g) permit proceeding without such a warrant or authori- zation; or when the property or evidence is in plain view or smell, Rule 316(d)(4)(C). Although most plain view seizures are inadvertent, there is no necessity that a plain view discovery be inadvertent—notwith- s t a n d i n g d i c t a , i n s o m e c o u r t c a s e s ; s e e C o o l i d g e v . N e w Hampshire, 403 U.S. 443 (1971). The Rule allows a seizure pursuant to probable cause when made as a result of plain view. The language used in Rule 316(d)(4)(C) is taken from the ALI M O D E L C O D E O F P R E A R R A I G N M E N T P R O C E D U R E S § 260.6 (1975). The Rule requires that the observation making up the alleged plain view be “reasonable.” Whether intentional ob- servation from outside a window, via flashlight or binocular, for example, is observation in a “reasonable fashion” is a question to be considered on a case by case basis. Whether a person may properly enter upon private property in order to effect a seizure of matter located via plain view is not resolved by the Rule and is left to future case development. 1 9 8 4 A m e n d m e n t : S u b s e c t i o n ( d ) ( 5 ) w a s a d d e d b a s e d o n United States v. Place , 462 U.S. 696 (1983). (e) Power to seize. Rule 316(e) conforms with Rule 315(e) and has its origin in Para. 19, MCM, 1969 (Rev.). 2013 Amendment. In subsection (a), the word “reasonable” was added and aligns the rule with the language found in the Fourth Amendment of the U.S. Constitution and Mil. R. Evid. 314 and 315. I n s u b s e c t i o n ( c ) ( 5 ) ( C ) , t h e d r a f t e r s i n t e n d e d t h e t e r m “reasonable fashion” to include all action by law enforcement that the Supreme Court has established as lawful in its plain view doctrine. See, e.g., Arizona v. Hicks , 480 U.S. 321, 324-25 (1987) (holding that there was no search when an officer merely re- corded serial numbers that he saw on a piece of stereo equipment, but that the officer did conduct a search when he moved the equipment to access serial numbers on the bottom of the turnta- ble); United States v. Lee , 274 U.S. 559, 563 (1927) (use of a searchlight does not constitute a Fourth Amendment violation). The drafters did not intend to establish a stricter definition of plain view than that required by the Constitution, as interpreted by the Supreme Court. An officer may seize the item only if his o r h e r c o n d u c t s a t i s f i e s t h e t h r e e - p a r t t e s t p r e s c r i b e d b y t h e Supreme Court: (1) he or she does not violate the Fourth Amend- ment by arriving at the place where the evidence could be plainly viewed; (2) its incriminating character is “readily apparent”; and (3) he or she has a lawful right of access to the object itself. Horton v. California , 496 U.S. 128, 136-37 (1990). This revision is stylistic and addresses admissibility rather than conduct. See supra, General Provisions Analysis. The drafters did n o t i n t e n d t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 317 Interception of wire and oral communication (a) General Rule. The area of interception of wire and oral com- munications is unusually complex and fluid. At present, the area A22-35 App. 22, M.R.E. 317(a)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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is governed by the Fourth Amendment, applicable federal statute, DOD directive, and regulations prescribed by the Service Secre- taries. In view of this situation, it is preferable to refrain from codification and to vest authority for the area primarily in the Department of Defense or Secretary concerned. Rule 317(c) thus prohibits interception of wire and oral communications for law enforcement purposes by members of the armed forces except as authorized by 18 U.S.C. § 2516, Rule 317(b), and when applica- ble, by regulations issued by the Secretary of Defense or the Secretary concerned. Rule 317(a), however, specifically requires exclusion of evidence resulting form noncompliance with Rule 317(c) only when exclusion is required by the Constitution or by an applicable statute. Insofar as a violation of a regulation is concerned, compare United States v. Dillard , 8 M.J. 213 (C.M.A. 1980) with United States v. Caceres , 440 U.S. 741 (1979). (b) Authorization for Judicial Applications in the United States. Rule 317(b) is intended to clarify the scope of 18 U.S.C. § 2516 by expressly recognizing the Attorney General’s authority to au- thorize applications to a federal court by the Department of De- f e n s e , D e p a r t m e n t o f H o m e l a n d S e c u r i t y , o r t h e m i l i t a r y d e p a r t m e n t s f o r a u t h o r i t y t o i n t e r c e p t w i r e o r o r a l communications. (c) Regulations. Rule 317(c) requires interception of wire or oral communications in the United States be first authorized by stat- ute, see Rule 317(b), and interceptions abroad by appropriate regulations. See the Analysis to Rule 317(a), supra. The Commit- tee intends 317(c) to limit only in interceptions that are non consensual under Chapter 119 of Title 18 of the United States Code. 2 0 1 3 A m e n d m e n t . F o r m e r s u b s e c t i o n s ( b ) a n d ( c ) ( 3 ) w e r e moved to a discussion paragraph. The drafters recommended this change because they address conduct rather than the admissibility of evidence. See supra , General Provisions Analysis. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 321 Eyewitness identification (a) General Rule (1) Admissibility. The first sentence of Rule 321(a)(1) is the b a s i c r u l e o f a d m i s s i b i l i t y o f e y e w i t n e s s i d e n t i f i c a t i o n a n d provides that evidence of a relevant out-of-court identification is admissible when otherwise admissible under the Rules. The intent of the provision is to allow any relevant out-of-court identifica- tion without any need to comply with the condition precedent such as in-court identification, significant change from the prior rule as found in Para. 153 a, MCM, 1969 (Rev.). The language “if such testimony is otherwise admissible under these rules” is primarily intended to ensure compliance with the hearsay rule. See Rule 802. It should be noted that Rule 80 1(d)(1)(C) states that a statement of “identification of a person m a d e a f t e r p e r c e i v i n g t h e p e r s o n ” i s n o t h e a r s a y w h e n “ t h e declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement.” An eyewitness identifica- tion normally will be admissible if the declarant testifies. The Rule’s statement, “the witness making the identification and any person who has observed the previous identification may testify concerning it,” is not an express exception authorizing the witness to testify to an out-of-court identification notwithstanding the hearsay rule, rather it is simply an indication that in appropriate circumstances, see Rules 803 and 804, a witness to an out-of- court identification may testify concerning it. The last sentence of subdivision (a)(1) is intended to clarify procedure by emphasizing that an in-court identification may be bolstered by an out-of-court identification notwithstanding the fact that the in-court identification has not been attacked. (2) Exclusionary rule. Rule 321(a)(2) provides the basic exclu- sionary rule for eyewitness identification testimony. The sub- stance of the Rule is taken from prior Manual paragraph 153 a as modified by the new procedure for suppression motions. See Rules 304 and 311. Subdivision (a)(2)(A) provides that evidence of an identification will be excluded if it was obtained as a result of an “unlawful identification process conducted by the United States or other domestic authorities” while subdivision (a)(2)(B) excludes evidence of an identification if exclusion would be re- quired by the due process clause of the Fifth Amendment to the Constitution. Under the burden of proof, subdivision (d)(2), an identification is not inadmissible if the prosecution proves by a preponderance of the evidence that the identification process was not so unnecessarily suggestive, in light of the totality of the circumstances, as to create a very substantial likelihood of irrepa- rable mistaken identity. It is the unreliability of the evidence w h i c h i s d e t e r m i n a t i v e . M a n s o n v . B r a t h w a i t e , 4 3 2 U . S . 9 8 (1977). “United States or other domestic authorities” includes military personnel. Although it is clear that an unlawful identification may taint a later identification, it is unclear at present whether an unlawful identification requires suppression of evidence other than identifi- cation of the accused. Consequently, the Rule requires exclusion of nonidentification derivative evidence only when the Constitu- tion would so require. (b) Definition of “unlawful.” (1) Lineups and other identification processes. Rule 321(b) defines “unlawful lineup or other identification processes.” When such a procedure is conducted by persons subject to the Uniform Code of Military Justice or their agents, it will be unlawful if it is “unnecessarily suggestive or otherwise in violation of the due process clause of the Fifth Amendment of the Constitution of the United States as applied to members of the armed forces.” The expression “unnecessarily suggestive” itself is a technical one and refers to an identification that is in violation of the due process clause because it is unreliable. See Manson v. Brathwaite, supra; Stovall v. Denno , 338 U.S. 292 (1967); Neil v. Biggers , 409 U.S. 188 (1972). See also Foster v. California , 394 U.S. 440 (1969). An identification is not unnecessarily suggestive in violation of the due process clause if the identification process was not so unnecessarily suggestive, in light of the totality of the circum- stances, as to create a very substantial likelihood of irreparable mistaken identity. See Manson v. Brathwaite, supra , and subdivi- sion (d)(2). Subdivision (1)(A) differs from subdivision (1)(B) only in that it recognizes that the Constitution may apply differently to mem- bers of the armed forces than it does to civilians. R u l e 3 2 1 ( b ) ( 1 ) i s a p p l i c a b l e t o a l l f o r m s o f i d e n t i f i c a t i o n processes including showups and lineups. 1984 Amendment: Subsections (b)(1) and (d)(2) were modified to make clear that the test for admissibility of an out-of-court identification is reliability. See Manson v. Brathwaite, supra. This A22-36 App. 22, M.R.E. 317(a) APPENDIX 22
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was apparently the intent of the drafters of the former rule. See Analysis, Mil. R. Evid. 321. The language actually used in sub- section (b)(1) and (d)(2) was subject to a different interpretation, however. See S. Salzburg, L. Schinasi, and D. Schlueter, MILI- TARY RULES OF EVIDENCE MANUAL at 165–167 (1981); Richard Gasperini, Eyewitness Identification Under the Military Rules of Evidence , 1980 Army Law. 42, at 42. In determining whether an identification is reliable, the military judge should weigh all the circumstances, including: the opportu- nity of the witness to view the accused at the time of the offense; the degree of attention paid by the witness; the accuracy of any prior descriptions of the accused by the witness; the level of certainty shown by the witness in the identification; and the time between the crime and the confrontation. Against these factors should be weighed the corrupting effect of a suggestive and unnecessary identification. See Manson v. Brathwaite, supra; Neil v. Biggers, supra . Note that the modification of subsection (b)(1) eliminates the distinction between identification processes conducted by persons subject to the code and other officials. Because the test is the reliability of the identification, and not a prophylactic standard, there is no basis to distinguish between identification processes conducted by each group. See Manson v. Brathwaite, supra. (2) Lineups: right to counsel. Rule 321(b)(2) deals only with lineups. The Rule does declare that a lineup is “unlawful” if it is conducted in violation of the right to counsel. Like Rule 305 and 311, Rule 321(b)(2) distinguishes between lineups conducted by persons subject to the Uniform Code of Military Justice or their agents and those conducted by others. Subdivision (b)(2)(A) is the basic right to counsel for personnel participating in military lineups. A lineup participant is entitled to counsel only if that participant is in pretrial restraint (pretrial arrest, restriction, or confinement) under paragraph 20 of the Manual or has had charges preferred against him or her. Mere apprehension or temporary detention does not trigger the right to counsel under the Rule. This portion of the Rule substantially changes military law and adapts the Supreme Court’s decision in Kirby v. Illinois , 406 U.S. 682, 689 (1972) (holding that the right t o c o u n s e l a t t a c h e d o n l y w h e n “ a d v e r s a r y j u d i c i a l c r i m i n a l proceedings” have been initiated or “the government has commit- ted itself to prosecute”) to unique military criminal procedure. See also Rule 305(d)(1)(B). Note that interrogation of a suspect will require rights warn- ings, perhaps including a warning of a right to counsel, even if counsel is unnecessary under Rule 321. See Rule 305. As previously noted, the Rule does not define “lineup” and recourse to case law is necessary. Intentional exposure of the suspect to one or more individuals for purpose of identification is likely to be a lineup, Stovall v. Denno , 388 U.S. 293, 297 (1967), although in rare cases of emergency ( e.g., a dying victim) such an identification may be considered a permissible “showup” rather than a “lineup.” Truly accidental confrontations between victims and suspects leading to an identification by the victim are not generally considered “lineups”; cf. United State ex rel Ragazzin v. Brierley, 321 F.Supp. 440 (W.D. Pa. 1970). Photographic identifi- cations are not “lineups” for purposes of the right to counsel. United States v. Ash , 413 U.S. 300, 301 n.2 (1973). If a photo- graphic identification is used, however, the photographs employed should be preserved for use at trial in the event that the defense should claim that the identification was “unnecessarily sugges- tive.” See subdivision (b)(1) supra. A lineup participant who is entitled to counsel is entitled to only one lawyer under the Rule and is specifically entitled to free military counsel without regard to the indigency or lack thereof of the participant. No right to civilian counsel or military counsel of t h e p a r t i c i p a n t ’ s o w n s e l e c t i o n e x i s t s u n d e r t h e R u l e . U n i t e d States v. Wade , 388 U.S. 218, n.27 (1967). A lineup participant may waive any applicable right to counsel so long as the partici- pant is aware of the right to counsel and the waiver is made “freely, knowingly, and intelligently.” Normally a warning of the right to counsel will be necessary for the prosecution to prove an a d e q u a t e w a i v e r s h o u l d t h e d e f e n s e a d e q u a t e l y c h a l l e n g e t h e waiver. See, e.g., United States v. Avers , 426 F.2d 524 (2d Cir. 1970). See also Model Rules for Law Enforcement, Eye Witness Identification, Rule 404 (1974) cited in E. IMWINKELRIED, P. GIANNELLI, F. GILLIGAN, & F. LEDERER, CRIMINAL EVI- DENCE 366 (1979). 1984 Amendment: In subsection (b)(2)(A), the words “or law specialist within the meaning of Article 1” were deleted as unnec- essary. See R.C.M. 103(26). Subdivision (b)(2)(B) grants a right to counsel at non-military lineups within the United States only when such a right to coun- sel is recognized by “the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar lineups.” The Rule presumes that an individual participating in a foreign lineup conducted by officials of a for- eign nation without American participation has no right to coun- sel at such a lineup. (c) Motions to suppress and objections. Rule 321(c) is identical in application to Rule 311(d). See the Analysis to Rules 304 and 311. (d) Burden of proof. Rule 321(d) makes it clear that when an eyewitness identification is challenged by the defense, the prose- cution need reply only to the specific cognizable defense com- plaint. See also Rules 304 and 311. The subdivision distinguishes between defense challenges involving alleged violation of the right to counsel and those involving the alleged unnecessarily suggestive identifications. (1) Right to counsel. Subdivision (d)(1) requires that when an alleged violation of the right to counsel has been raised the prosecution must either demonstrate by preponderance of the evi- dence that counsel was present or that the right to counsel was waived voluntarily and intelligently. The Rule also declares that if the right to counsel is violated at a lineup that results in an identification of the accused any later identification is considered a result of the prior lineup as a matter of law unless the military judge determines by clear and convincing evidence that the latter identification is not the result of the first lineup. Subdivision (d)(1) is taken in substance from 1969 Manual Para. 153 a. ( 2 ) U n n e c e s s a r i l y s u g g e s t i v e i d e n t i f i c a t i o n . R u l e 3 2 1 ( d ) ( 2 ) deals with an alleged unnecessarily suggestive identification or with any other alleged violation of due process. The subdivision makes it clear that the prosecution must show, when the defense has raised the issue, that the identification in question was not based upon a preponderance of the evidence, “so unnecessarily suggestive in light of the totality of the circumstances, as to create a very substantial likelihood of irreparable mistaken identity.” This rule is taken from the Supreme Court’s decisions of Neil v. A22-37 App. 22, M.R.E. 321(d)(2)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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Biggers, 409 U.S. 188 (1972) and Stovall v. Denno, 388 U.S. 293 (1967), and unlike subdivision (d)(1), applies to all identification processes whether lineups or not. The Rule recognizes that the nature of the identification process itself may well be critical to the reliability of the identification and provides for exclusion of unreliable evidence regardless of its source. If the prosecution meets its burden, the mere fact that the identification process was unnecessary or suggestive does not require exclusion of the evi- dence, Manson v. Brathwaite, supra. If the identification in question is subsequent to an earlier, unnecessarily suggestive identification, the later identification is admissible if the prosecution can show by clear and convincing evidence that the later identification is not the result of the earlier improper examination. This portion of the Rule is consistent both with 1969 Manual Para. 153 a and Kirby v. Illinois , 406 U.S. 682 (1972). (e) Defense evidence. Rule 321(e) is identical with the analogous provisions in Rules 304 and 311 and generally restates prior law. (f) Rulings. Rule 321(f) is identical with the analogous provisions in Rules 304 and 321 and substantially changes prior law. See the Analysis to Rule 304(d)(4). (g) Effect of guilty plea. Rule 321(g) is identical with the analo- gous provisions in Rules 304 and 311 and restates prior law. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. SECTION IV Relevancy and its Limits Rule 401 Test for relevant evidence The definition of “relevant evidence” found within Rule 401 is taken without change from the Federal Rule and is substantially similar in effect to that used by Para. 137, MCM, 1969 (Rev.). The Rule’s definition may be somewhat broader than the 1969 Manual’s, as the Rule defines as relevant any evidence that has “any tendency to make the existence of any fact. . . more proba- ble or less probable than it would be without the evidence” while the 1969 Manual defines as “not relevant” evidence “too remote to have any appreciable probative value. . .” To the extent that the 1969 Manual’s definition includes considerations of “legal rele- vance,” those considerations are adequately addressed by such other Rules as Rules 403 and 609. See, E. IMWINKELRIED, P. GIANNELLI, F. GILLIGAN & F. LEDERER, CRIMINAL EVI- DENCE 62–65 (1979) (which, after defining “logical relevance” as involving only probative value, states at 63 that “under the rubric of [legal relevance,] the courts have imposed an additional requirement that the item’s probative value outweighs any attend- ant probative dangers.”) The Rule is similar to the 1969 Manual in that it abandons any reference to “materiality” in favor of a single standard of “relevance.” Notwithstanding the specific ter- minology used, however, the concept of materiality survives in the Rule’s condition that to be relevant evidence must involve a fact “which is of consequence to the determination of the action.” 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. 2016 Amendment : The first paragraph of the R.C.M. 401(c) Discussion was added in light of the recommendation in the Response Systems to Adult Sexual Assault Crimes Panel’s (RSP) June 2014 report for trial counsel to convey victims’ preferences as to disposition to the convening authority. This Discussion im- plements this recommendation by allowing Service regulations to determine the appropriate authority responsible for communicat- ing the victims’ views to the convening authority. The RSP was a congressionally mandated panel tasked to conduct an independent review and assessment of the systems used to investigate, prose- cute, and adjudicate crimes involving adult sexual assault and related offenses. Rule 402 General admissibility of relevant evidence Rule 402 is taken without significant change from the Federal Rule. The Federal Rule’s language relating to limitations imposed by “the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority” has been replaced by material tailored to the unique nature of the Military Rules of Evidence. Rule 402 recognizes that the Constitution may apply somewhat differently to members of the armed forces than to civilians, and the Rule deletes the Federal Rule’s reference to “other rules prescribed by the Supreme Court” because such Rules do not apply directly in courts-martial. See Rule 101(b)(2). Rule 402 provides a general standard by which irrelevant evi- dence is always inadmissible and by which relevant evidence is generally admissible. Qualified admissibility of relevant evidence is required by the limitations in Sections III and V and by such other Rules as 403 and 609 which intentionally utilize matters such as degree of probative value and judicial efficiency in deter- mining whether relevant evidence should be admitted. Rule 402 is not significantly different in its effect from Para. 137 of the 1969 Manual which it replaces, and procedures used under the 1969 Manual in determining relevance generally remain valid. Offers of proof are encouraged when items of doubtful relevance are proffered, and it remains possible, subject to the discretion of the military judge, to offer evidence “subject to later connection.” Use of the latter technique, however, must be made with great care to avoid the possibility of bringing inadmissible evidence before the members of the court. It should be noted that Rule 402 is potentially the most impor- tant of the new rules. Neither the Federal Rules of Evidence nor the Military Rules of Evidence resolve all evidentiary matters; see Rule 101(b). When specific authority to resolve an evidentiary issue is absent, Rule 402’s clear result is to make relevant evi- dence admissible. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time Rule 403 is taken without change from the Federal Rule of Evidence. The Rule incorporates the concept often known as “legal relevance,” see the Analysis to Rule 401, and provides that evidence may be excluded for the reasons stated notwithstanding its character as relevant evidence. The Rule vests the military A22-38 App. 22, M.R.E. 321(d)(2) APPENDIX 22
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judge with wide discretion in determining the admissibility of evidence that comes within the Rule. If a party views specific evidence as being highly prejudicial, it may be possible to stipulate to the evidence and thus avoid its presentation to the court members. United States v. Grassi , 602 F.2d 1192 (5th Cir. 1979), a prosecution for interstate transporta- tion of obscene materials, illustrates this point. The defense of- fered to stipulate that certain films were obscene in order to prevent the jury from viewing the films, but the prosecution declined to join in the stipulation. The trial judge sustained the prosecution’s rejection of the stipulation and the Fifth Circuit upheld the judge’s decision. In its opinion, however, the Court of Appeals adopted a case by case balancing approach recognizing both the importance of allowing probative evidence to be pres- ented and the use of stipulations as a tool to implement the policies inherent in Rule 403. Insofar as the latter is concerned, the court expressly recognized the power of a Federal district judge to compel the prosecution to accept a defense tendered stipulation. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 404 Character evidence; crime or other acts ( a ) C h a r a c t e r e v i d e n c e g e n e r a l l y . R u l e 4 0 4 ( a ) r e p l a c e s 1 9 6 9 Manual Para. 138 f and is taken without substantial change from the Federal Rule. Rule 404(a) provides, subject to three excep- tions, that character evidence is not admissible to show that a person acted in conformity therewith. Rule 404(a)(1) allows only evidence of a pertinent trait of character of the accused to be offered in evidence by the defense. This is a significant change from Para. 138 f of the 1969 Manual which also allows evidence of “general good character” of the accused to be received in order to demonstrate that the accused is less likely to have committed a criminal act. Under the new rule, evidence of general good character is inadmissible because only evidence of a specific trait is acceptable. It is the intention of the Committee, however, to allow the defense to introduce evidence of good military character when that specific trait is pertinent. Evidence of good military character would be admissible, for example, in a prosecution for disobedience of orders. The prose- cution may present evidence of a character trait only in rebuttal to receipt in evidence of defense character evidence. This is consis- tent with prior military law. Rule 404(a)(2) is taken from the Federal Rule with minor changes. The Federal Rule allows the prosecution to present evi- dence of the character trait of peacefulness of the victim “in a homicide case to rebut evidence that the victim was the first aggressor.” Thus, the Federal Rule allows prosecutorial use of character evidence in a homicide case in which self-defense has been raised. The limitation to homicide cases appeared to be inappropriate and impracticable in the military environment. All too often, assaults involving claims of self-defense take place in the densely populated living quarters common to military life. Whether aboard ship or within barracks, it is considered essential to allow evidence of the character trait of peacefulness of the victim. Otherwise, a substantial risk would exist of allowing un- lawful assaults to go undeterred. The Federal Rule’s use of the expression “first aggressor” was modified to read “an aggressor,” as substantive military law recognizes that even an individual who is properly exercising the right of self-defense may overstep and become an aggressor. The remainder of Rule 404(a)(2) allows the defense to offer evidence of a pertinent trait of character of the victim of a crime and restricts the prosecution to rebuttal of that trait. Rule 404(a)(3) allows character evidence to be used to impeach or support the credibility of a witness pursuant to Rules 607–609. 2004 Amendment: Subdivision (a) was modified based on the amendment to Fed. R. Evid. 404(a), effective 1 December 2000, and is virtually identical to its Federal Rule counterpart. It is intended to provide a more balanced presentation of character evidence when an accused attacks the victim’s character. The accused opens the door to an attack on the same trait of his own character when he attacks an alleged victim’s character, giving the members an opportunity to consider relevant evidence about the accused’s propensity to act in a certain manner. The words “if relevant” are added to subdivision (a)(1) to clarify that evidence of an accused’s character under this rule must meet the require- ments of Mil. R. Evid. 401 and Mil. R. Evid. 403. The drafters believe this addition addresses the unique use of character evi- dence in courts-martial. The amendment does not permit proof of the accused’s character when the accused attacks the alleged victim’s character as a witness under Rule 608 or 609, nor does it affect the standards for proof of character by evidence of other sexual behavior or sexual offenses under Rules 412-415. (b) Other crimes, wrongs, or acts. Rule 404(b) is taken without change from the Federal Rule, and is substantially similar to the 1969 Manual rule found in Para. 138 g. While providing that evidence of other crimes, wrongs, or acts is not admissible to prove a predisposition to commit a crime, the Rule expressly permits use of such evidence on the merits when relevant to another specific purpose. Rule 404(b) provides examples rather than a list of justifications for admission of evidence of other misconduct. Other justifications, such as the tendency of such evidence to show the accused’s consciousness of guilt of the offense charged, expressly permitted in Manual Para. 138 g(4), remain effective. Such a purpose would, for example, be an ac- ceptable one. Rule 404(b), like Manual Para. 138 g, expressly allows use of evidence of misconduct not amounting to convic- tion. Like Para. 138 g, the Rule does not, however, deal with use of evidence of other misconduct for purposes of impeachment. See Rules 608-609. Evidence offered under Rule 404(b) is subject to Rule 403. 1994 Amendment. The amendment to Mil. R. Evid. 404(b) was based on the 1991 amendment to Fed. R. Evid. 404(b). The previous version of Mil. R. Evid. 404(b) was based on the now superseded version of the Federal Rule. This amendment adds the requirement that the prosecution, upon request by the accused, provide reasonable notice in advance of trial, or during trial if the military judge excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Minor technical changes were made to the language of the Fed- eral Rule so that it conforms to military practice. 2013 Amendment. The word “alleged” was added to references to the victim throughout this rule. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. 2015 Amendment : This rule was revised to implement Section A22-39 App. 22, M.R.E. 404(b)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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536 of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 405 Methods of proving character (a) Reputation or opinion. Rule 405(a) is taken without change from the Federal Rule. The first portion of the Rule is identical in effect with the prior military rule found in Para. 138 f(1) of the 1969 Manual. An individual testifying under the Rule must have an adequate relationship with the community ( see Rule 405(c)), in the case of reputation, or with the given individual in the case of opinion, in order to testify. The remainder of Rule 405(a) ex- pressly permits inquiry or cross-examination “into relevant spe- cific instances of conduct.” This is at variance with prior military practice under which such an inquiry was prohibited. See Para. 138 f(2), MCM, 1969 (Rev.) (character of the accused). Reputa- tion evidence is exempted from the hearsay rule, Rule 803(21). (b) Specific instances of conduct. Rule 405(b) is taken without significant change from the Federal Rule. Reference to “charge, claim, or defense” has been replaced with “offense or defense” in order to adapt the rule to military procedure and terminology. (c) Affidavits. Rule 405(c) is not found within the Federal Rules and is taken verbatim from material found in Para. 146 b of the 1969 Manual. Use of affidavits or other written statements is required due to the world wide disposition of the armed forces which makes it difficult if not impossible to obtain witnesses— particularly when the sole testimony of a witness is to be a brief statement relating to the character of the accused. This is particu- larly important for offenses committed abroad or in a combat zone, in which case the only witnesses likely to be necessary from the United States are those likely to be character witnesses. The Rule exempts statements used under it from the hearsay rule insofar as the mere use of an affidavit or other written statement is subject to that rule. (d) Definitions. Rule 405(d) is not found within the Federal Rules of Evidence and has been included because of the unique nature of the armed forces. The definition of “reputation” is taken gener- ally from 1969 Manual Para. 138 f(1) and the definition of “com- munity” is an expansion of that now found in the same paragraph. T h e d e f i n i t i o n o f “ c o m m u n i t y ” h a s b e e n b r o a d e n e d t o a d d “regardless of size” to indicate that a party may proffer evidence of reputation within any specific military organization, whether a squad, company, division, ship, fleet, group, or wing, branch, or staff corps, for example. Rule 405(d) makes it clear that evidence may be offered of an individual’s reputation in either the civilian or military community or both. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 406 Habit; routine practice Rule 406 is taken without change from the Federal Rule. It is similar in effect to Para. 138 h of the 1969 Manual. It is the intent of the Committee to include within Rule 406’s use of the word, “organization,” military organizations regardless of size. See Rule 405 and the Analysis to that Rule. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 407 Subsequent remedial measures Rule 407 is taken from the Federal Rules without change, and has no express equivalent in the 1969 Manual. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 408 Compromise offers and negotiations Rule 408 is taken from the Federal Rules without change, and has no express equivalent in the 1969 Manual. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 409 Offers to pay medical and similar expenses Rule 409 is taken from the Federal Rules without change. It has no present military equivalent and is intended to be applicable to courts-martial to the same extent that is applicable to civilian criminal cases. Unlike Rules 407 and 408 which although prima- rily applicable to civil cases are clearly applicable to criminal cases, it is arguable that Rule 409 may not apply to criminal cases as it deals only with questions of “liability”—normally only a civil matter. The Rule has been included in the Military Rules to ensure its availability should it, in fact, apply to criminal cases. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 410 Pleas, plea discussions, and related statements Rule 410 as modified effective 1 August 1981 is generally taken from the Federal Rule as modified on 1 December 1980. It extends to plea bargaining as well as to statements made during a providency inquiry, civilian or military. E.g., United States v. Care, 18 C.M.A. 535 (1969). Subsection (b) was added to the Rule in recognition of the unique possibility of administrative disposition, usually separation, in lieu of court-martial. Denomi- nated differently within the various armed forces, this administra- tive procedure often requires a confession as a prerequisite. As modified, Rule 410 protects an individual against later use of a statement submitted in furtherance of such a request for adminis- trative disposition. The definition of “on the record” was required because no “record” in the judicial sense exists insofar as request for administrative disposition is concerned. It is the belief of the Committee that a copy of the written statement of the accused in such a case is, however, the functional equivalent of such a record. Although the expression “false statement” was retained in the Rule, it is the Committee’s intent that it be construed to include all related or similar military offenses. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. A22-40 App. 22, M.R.E. 404(b) APPENDIX 22
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Rule 411 Liability Insurance Rule 411 is taken from the Federal Rule without change. Al- though it would appear to have potential impact upon some crimi- n a l c a s e s , e . g . , s o m e n e g l i g e n t h o m i c i d e c a s e s , i t s a c t u a l application to criminal cases is uncertain. It is the Committee’s intent that Rule 411 be applicable to courts-martial only to the extent that it is applicable to criminal cases. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 412 Nonconsensual sexual offenses; relevance of victim’s past behavior Rule 412 is taken from the Federal Rules. Although substan- tially similar in substantive scope to Federal Rule of Evidence 412, the application of the Rule has been somewhat broadened and the procedural aspects of the Federal Rule have been modi- fied to adapt them to military practice. Rule 412 is intended to shield victims of sexual assaults from the often embarrassing and degrading cross-examination and evi- dence presentations common to prosecutions of such offenses. In so doing, it recognizes that the prior rule, which it replaces, often yields evidence of at best minimal probative value with great potential for distraction and incidentally discourages both the reporting and prosecution of many sexual assaults. In replacing the unusually extensive rule found in Para. 153 b (2)(b), MCM, 1969 (Rev.), which permits evidence of the victim’s “unchaste” character regardless of whether he or she has testified, the Rule will significantly change prior military practice and will restrict d e f e n s e e v i d e n c e . T h e R u l e r e c o g n i z e s , h o w e v e r , i n R u l e 412(b)(1), the fundamental right of the defense under the Fifth Amendment of the Constitution of the United States to present relevant defense evidence by admitting evidence that is “constitu- tionally required to be admitted.” Further, it is the Committee’s intent that the Rule not be interpreted as a rule of absolute privilege. Evidence that is constitutionally required to be admitted on behalf of the defense remains admissible notwithstanding the absence of express authorization in Rule 412(a). It is unclear whether reputation or opinion evidence in this area will rise to a level of constitutional magnitude, and great care should be taken with respect to such evidence. Rule 412 applies to a “nonconsensual sexual offense” rather than only to “rape or assault with intent to commit rape” as prescribed by the Federal Rule. The definition of “nonconsensual sexual offense” is set forth in Rule 412(e) and “includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempts to commit such offenses.” This modification to the Federal Rule resulted from a desire to apply the social policies behind the Federal Rule to the unique military environment. Military life requires that large numbers of young men and women live and work together in close quarters which are often highly isolated. The deterrence of sexual offenses in such circumstances is critical to military efficiency. There is thus no justification for limiting the scope of the Rule, intended to protect human dignity and to ultimately encourage the reporting and prosecution of sexual offenses, only to rape and/or assault with intent to commit rape. Rule 412(a) generally prohibits reputation or opinion evidence of an alleged victim of a nonconsensual sexual offense. Rule 412(b)(1) recognizes that evidence of a victim’s past sexual behavior may be constitutionally required to be admitted. Although there are a number of circumstances in which this language may be applicable, see, S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 92–93 (2d ed. Supp. 1979) (giving example of potential constitutional problems offered by the American Civil Liberties Union during the House hearings on Rule 412), one may be of particular interest. If an individual has contracted for the sexual services of a prostitute a n d s u b s e q u e n t t o t h e p e r f o r m a n c e o f t h e a c t t h e p r o s t i t u t e demands increased payment on pain of claiming rape, for exam- ple, the past history of that person will likely be constitutionally required to be admitted in a subsequent prosecution in which the defense claims consent to the extent that such history is relevant and otherwise admissible to corroborate the defense position. Ab- sent such peculiar circumstances, however, the past sexual behav- ior of the alleged victim, not within the scope of Rule 412(b)(2), is unlikely to be admissible regardless of the past sexual history. The mere fact that an individual is a prostitute is not normally admissible under Rule 412. Evidence of past false complaints of sexual offenses by an alleged victim of a sexual offense is not within the scope of this rule and is not objectionable when otherwise admissible. Rule 412(c) provides the procedural mechanism by which evi- dence of past sexual behavior of a victim may be offered. The Rule has been substantially modified from the Federal Rule in order to adapt it to military practice. The requirement that notice be given not later than fifteen days before trial has been deleted as being impracticable in view of the necessity for speedy dispo- sition of military cases. For similar reasons, the requirement for a written motion has been omitted in favor of an offer of proof, which could, of course, be made in writing, at the discretion of the military judge. Reference to hearings in chambers has been deleted as inapplicable; a hearing under Article 39(a), which may be without spectators, has been substituted. The propriety of hold- ing a hearing without spectators is dependent upon its constitu- tionality which is in turn dependent upon the facts of any specific case. Although Rule 412 is not per se applicable to such pretrial procedures as Article 32 and Court of Inquiry hearings, it may be applicable via Rule 303 and Article 31(c). See the Analysis to Rule 303. It should be noted as a matter related to Rule 412 that the 1969 Manual’s prohibition in Para. 153 a of convictions for sexual offenses that rest on the uncorroborated testimony of the alleged victim has been deleted. Similarly, an express hearsay exception for fresh complaint has been deleted as being unnecessary. Conse- quently, evidence of fresh complaint will be admissible under the Military Rule only to the extent that it is either nonhearsay, see Rule 801(d)(1)(B), or fits within an exception to the hearsay rule. See subdivisions (1), (2), (3), (4), and (24) of Rule 803. 1993 Amendment. R.C.M. 405(i) and Mil. R. Evid. 1101(d) were amended to make the provisions of Rule 412 applicable at pretrial investigations. Congress intended to protect the victims of nonconsensual sex crimes at preliminary hearings as well as at A22-41 App. 22, M.R.E. 412ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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trial when it passed Fed. R. Evid. 412. See Criminal Justice Subcommittee of the House Judiciary Committee Report, 94th Cong., 2d Session, July 1976. 1998 Amendment. The revisions to Rule 412 reflect changes made to Federal Rule of Evidence 412 by section 40141 of the Violent Crime Control and Law Enforcement Act of 1994, Pub L. No. 103-322, 108 Stat. 1796, 1918-19 (1994). The purpose of the amendments is to safeguard the alleged victim against the inva- sion of privacy and potential embarrassment that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process. The terminology “alleged victim” is used because there will frequently be a factual dispute as to whether the sexual miscon- duct occurred. Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a “victim of alleged sexual misconduct.” The term “sexual predisposition” is added to Rule 412 to con- form military practice to changes made to the Federal Rule. The purpose of this change is to exclude all other evidence relating to an alleged victim of sexual misconduct that is offered to prove a sexual predisposition. It is designed to exclude evidence that does not directly refer to sexual activities or thoughts but that the accused believes may have a sexual connotation for the factfinder. Admission of such evidence would contravene Rule 412’s objec- tives of shielding the alleged victim from potential embarrassment and safeguarding the victim against stereotypical thinking. Conse- quently, unless an exception under (b)(1) is satisfied, evidence s u c h a s t h a t r e l a t i n g t o t h e a l l e g e d v i c t i m ’ s m o d e o f d r e s s , speech, or lifestyle is inadmissible. In drafting Rule 412, references to civil proceedings were de- leted, as these are irrelevant to courts-martial practice. Otherwise, changes in procedure made to the Federal Rule were incorporated, but tailored to military practice. The Military Rule adopts a 5-day notice period, instead of the 14-day period specified in the Fed- eral Rule. Additionally, the military judge, for good cause shown, may require a different time for such notice or permit notice during trial. The 5-day period preserves the intent of the Federal Rule that an alleged victim receive timely notice of any attempt to offer evidence protected by Rule 412, however, given the relatively short time period between referral and trial, the 5-day period is deemed more compatible with courts-martial practice. Similarly, a closed hearing was substituted for the in camera hearing required by the Federal Rule. Given the nature of the in camera procedure used in Military Rule of Evidence 505(i)(4), and that an in camera hearing in the district courts more closely resembles a closed hearing conducted pursuant to Article 39(a), the latter was adopted as better suited to trial by courts-martial. Any alleged victim is afforded a reasonable opportunity to attend and be heard at the closed Article 39(a) hearing. The closed hearing, combined with the new requirement to seal the motion, related papers, and the record of the hearing, fully protects an alleged victim against invasion of privacy and potential embar- rassment. 2007 Amendment : This amendment is intended to aid practi- t i o n e r s i n a p p l y i n g t h e b a l a n c i n g t e s t o f M i l . R . E v i d . 4 1 2 . Specifically, the amendment clarifies: (1) that under Mil. R. Evid. 412, the evidence must be relevant for one of the purposes high- lighted in subdivision (b); (2) that in conducting the balancing test, the inquiry is whether the probative value of the evidence outweighs the danger of unfair prejudice to the victim’s privacy; and (3) that even if the evidence is admissible under Mil. R. Evid. 412, it may still be excluded under Mil. R. Evid. 403. The proposed changes highlight current practice. See U.S. v. Banker , 60 M.J. 216, 223 (2004) (“It would be illogical if the judge were to evaluate evidence ‘offered by the accused’ for unfair prejudice to the accused. Rather, in the context of this rape shield statute, the prejudice in question is, in part, that to the privacy interests of the alleged victim). See also Sanchez , 44 M.J. at 178 (“[I]n determining admissibility there must be a weighing of the proba- tive value of the evidence against the interest of shielding the victim’s privacy”). Moreover, the amendment clarifies that Mil. R. Evid. 412 ap- plies in all cases involving a sexual offense wherein the person against whom the evidence is offered can reasonably be charac- terized as a “victim of the alleged sexual offense.” Thus, the rule applies to: “consensual sexual offense,” “nonconsensual sexual o f f e n s e s ; ” s e x u a l o f f e n s e s s p e c i f i c a l l y p r o s c r i b e d u n d e r t h e U.C.M.J., e.g., rape, aggravated sexual assault, etc.; those federal sexual offenses DoD is able to prosecute under clause 3 of Article 134, U.C.M.J., e.g., 18 U.S.C. § 2252A (possession of child pornography); and state sexual offenses DoD is able to assimilate under the Federal Assimilative Crimes Act (18 U.S.C. § 13). In 2011, the Court of Appeals for the Armed Forces expressed concern with the constitutionality of the balancing test from Rule 412(c)(3) as amended in 2007. See United States v. Gaddis , 70 M.J. 248 (C.A.A.F. 2011), United States v. Ellerbrock , 70 M.J. 314 (C.A.A.F. 2011). 2015 Amendment : Rule 412(c)(2) was revised in accordance with L.R.M. v. Kastenberg , 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 413 Similar crimes in sexual offense cases 1998 Amendment. This amendment is intended to provide for more liberal admissibility of character evidence in criminal cases of sexual assault where the accused has committed a prior act of sexual assault. Rule 413 is nearly identical to its Federal Rule counterpart. A number of changes were made, however, to tailor the Rule to military practice. First, all references to Federal Rule 415 were deleted, as it applies only to civil proceedings. Second, military justice terminology was substituted where appropriate (e.g. ac- cused for defendant, court-martial for case). Third, the 5-day notice requirement in Rule 413(b) replaced a 15-day notice re- quirement in the Federal Rule. A 5-day requirement is better suited to military discovery practice. This 5-day notice require- ment, however, is not intended to restrict a military judge’s au- thority to grant a continuance under R.C.M. 906(b)(1). Fourth, Rule 413(d) has been modified to include violations of the Uni- form Code of Military Justice. Also, the phrase “without consent” was added to Rule 413(d)(1) to specifically exclude the introduc- tion of evidence concerning adultery or consensual sodomy. Last, all incorporation by way of reference was removed by adding subsections (e), (f), and (g). The definitions in those subsections were taken from title 18, United States Code §§ 2246(2)–2246(3), and 513(c)(5), respectively. Although the Rule states that the evidence “is admissible,” the drafters intend that the courts apply Rule 403 balancing to such A22-42 App. 22, M.R.E. 412 APPENDIX 22
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evidence. Apparently, this also was the intent of Congress. The legislative history reveals that “the general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the court’s authority under evidence rule 40 3 to exclude evidence whose probative value is substantially out- weighed by its prejudicial effect.” 140 Cong. Rec. S. 12,990 (daily ed. Sept. 20, 1994) (Floor Statement of the Principal Senate Sponsor, Senator Bob Dole, Concerning the Prior Crimes Evi- dence Rules for Sexual Assault and Child Molestation Cases). When “weighing the probative value of such evidence, the court may, as part of its rule 403 determination, consider proxim- ity in time to the charged or predicate misconduct; similarity to the charged or predicate misconduct; frequency of the other acts; surrounding circumstances; relevant intervening events; and other relevant similarities or differences.” Report of the Judicial Con- ference of the United States on the Admission of Character Evi- dence in Certain Sexual Misconduct Cases. 2 0 0 2 A m e n d m e n t : F e d e r a l R u l e o f E v i d e n c e 4 1 5 , w h i c h created a similar character evidence rule for civil cases, became applicable to the Military Rules of Evidence on January 6, 1996, pursuant to Rule 1102. Federal Rule 415, however, is no longer applicable to the Military Rules of Evidence, as stated in Section 1 o f E x e c u t i v e O r d e r , 2 0 0 2 A m e n d m e n t s t o t h e M a n u a l f o r Court-Martial, United States, (2000). Rule 415 was deleted be- cause it applies only to federal civil proceedings. 2013 Amendment. The time requirement in subsection (b) was changed and aligns with the time requirements in Mil. R. Evid. 412 and the Federal Rules of Evidence. This change is also in conformity with military practice in which the military judge may accept pleas shortly after referral and sufficiently in advance of trial. Additionally, subsection (d) was revised and aligns with the Federal Rules of Evidence. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 414 Similar crimes in child-molestation cases 1998 Amendment. This amendment is intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation. Rule 414 is nearly identical to its Federal Rule counterpart. A number of changes were made, however, to tailor the Rule to military practice. First, all references to Federal Rule 415 were deleted, as it applies only to civil proceedings. Second, military justice terminology was substituted where appropriate (e.g. ac- cused for defendant, court-martial for case). Third, the 5-day notice requirement in Rule 414(b) replaced a 15-day notice re- quirement in the Federal Rule. A 5-day requirement is better suited to military discovery practice. This 5-day notice require- ment, however, is not intended to restrict a military judge’s au- thority to grant a continuance under R.C.M. 906(b)(1). Fourth, Rule 414(d) has been modified to include violations of the Uni- form Code of Military Justice. Last, all incorporation by way of reference was removed by adding subsections (e), (f), (g), and (h). The definitions in those subsections were taken from title 18, United States Code §§ 2246(2), 2246(3), 2256(2), and 513(c)(5), respectively. Although the Rule states that the evidence “is admissible,” the drafters intend that the courts apply Rule 403 balancing to such evidence. Apparently, this was also the intent of Congress. The legislative history reveals that “the general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the court’s authority under evidence rule 40 3 to exclude evidence whose probative value is substantially out- weighed by its prejudicial effect.” 140 Cong. Rec. S. 12,990 (daily ed. Sept. 20, 1994) (Floor Statement of the Principal Senate Sponsor, Senator Bob Dole, Concerning the Prior Crimes Evi- dence Rules for Sexual Assault and Child Molestation Cases). When “weighing the probative value of such evidence, the court may, as part of its rule 403 determination, consider proxim- ity in time to the charged or predicate misconduct; similarity to the charged or predicate misconduct; frequency of the other acts; surrounding circumstances; relevant intervening events; and other relevant similarities or differences.” Report of the Judicial Con- ference of the United States on the Admission of Character Evi- dence in Certain Sexual Misconduct Cases. 2 0 0 2 A m e n d m e n t : F e d e r a l R u l e o f E v i d e n c e 4 1 5 , w h i c h created a similar character evidence rule for civil cases, became applicable to the Military Rules of Evidence on January 6, 1996, pursuant to Rule 1102. Federal Rule 415, however, is no longer applicable to the Military Rules of Evidence, as stated in Section 1 o f E x e c u t i v e O r d e r , 2 0 0 2 A m e n d m e n t s t o t h e M a n u a l f o r Court-Martial, United States, (2000). Rule 415 was deleted be- cause it applies only to federal civil proceedings. 2013 Amendment. The time requirement in subsection (b) was changed and aligns with the time requirements in Mil. R. Evid. 412 and the Federal Rules of Evidence. This change is also in conformity with military practice in which the military judge may accept pleas shortly after referral and sufficiently in advance of trial. Additionally, subsection (d) was revised and aligns with the Federal Rules of Evidence. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility. SECTION V PRIVILEGES Rule 501 Privilege in general Section V contains all of the privileges applicable to military criminal law except for those privileges which are found within Rules 301, Privilege Concerning Compulsory Self-Incrimination; Rule 302, Privilege Concerning Mental Examination of an Ac- cused; and Rule 303, Degrading Questions. Privilege rules, unlike other Military Rules of Evidence, apply in “investigative hearings pursuant to Article 32; proceedings for vacation of suspension of sentence under Article 72; proceedings for search authorization; proceedings involving pretrial restraint; and in other proceedings authorized under the Uniform Code of Military Justice of this Manual and not listed in rule 1101(a).” See Rule 1101(c); see also Rule 1101(b). In contrast to the general acceptance of the proposed Federal Rules of Evidence by Congress, Congress did not accept the proposed privilege rules because a consensus as to the desirability of a number of specific privileges could not be achieved. See generally, S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 200–201 (2d ed. 1977). In an effort to A22-43 App. 22, M.R.E. 501ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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expedite the Federal Rules generally, Congress adopted a general rule, Rule 501, which basically provides for the continuation of common law in the privilege area. The Committee deemed the approach taken by Congress in the Federal Rules impracticable within the armed forces. Unlike the Article III court system, which is conducted almost entirely by attorneys functioning in conjunction with permanent courts in fixed locations, the military criminal legal system is characterized by its dependence upon large numbers of laymen, temporary courts, and inherent geo- graphical and personnel instability due to the worldwide deploy- ment of military personnel. Consequently, military law requires far more stability than civilian law. This is particularly true be- cause of the significant number of non-lawyers involved in the military criminal legal system. Commanders, convening authori- ties, non-lawyer investigating officers, summary court-martial of- ficers, or law enforcement personnel need specific guidance as to what material is privileged and what is not. Section V combines the flexible approach taken by Congress with respect to privileges with that provided in the 1969 Manual. Rules 502–509 set forth specific rules of privilege to provide the certainty and stability necessary for military justice. Rule 501, on the other hand, adopts those privileges recognized in common law pursuant to Federal Rules of Evidence 501 with some limitations. Specific privileges are generally taken from those proposed Fed- eral Rules of Evidence which although not adopted by Congress were non-controversial, or from the 1969 Manual. Rule 501 is the basic rule of privilege. In addition to recogniz- ing privileges required by or provided for in the Constitution, an applicable Act of Congress, the Military Rules of Evidence, and the Manual for Courts-Martial, Rule 501(a) also recognizes privi- leges “generally recognized in the trial of criminal cases in the United States district courts pursuant to Rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by court-martial is practicable and not contrary to or incon- sistent with the Uniform Code of Military Justice, these rules, or this Manual.” The latter language is taken from 1969 Manual Para. 137. As a result of Rule 501(a)(4), the common law of privileges as recognized in the Article III courts will be applicable to the armed forces except as otherwise provided by the limitation indicated above. Rule 501(d) prevents the application of a doctor- patient privilege. Such a privilege was considered to be totally incompatible with the clear interest of the armed forces in ensur- ing the health and fitness for duty of personnel. See 1969 Manual Para. 151 c It should be noted that the law of the forum determines the application of privilege. Consequently, even if a servicemember should consult with a doctor in a jurisdiction with a doctor-patient privilege for example, such a privilege is inapplicable should the doctor be called as a witness before the court-martial. Subdivision (b) is a non-exhaustive list of actions which consti- tute an invocation of a privilege. The subdivision is derived from F e d e r a l R u l e o f E v i d e n c e 5 0 1 a s o r i g i n a l l y p r o p o s e d b y t h e Supreme Court, and the four specific actions listed are also found in the Uniform Rules of Evidence. The list is intentionally non- exclusive as a privilege might be claimed in a fashion distinct from those listed. Subdivision (c) is derived from Federal Rule of Evidence 501 and makes it clear that an appropriate representative of a political jurisdiction or other organizational entity may claim an applicable privilege. The definition is intentionally non-exhaustive. 1999 Amendment: The privileges expressed in Rule 513 and Rule 302 and the conforming Manual change in R.C.M. 706, are not physician-patient privileges and are not affected by Rule 50 1(d). 2013 Amendment. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 502 Lawyer-client privilege (a) General rule of privilege. Rule 502(a) continues the substance of the attorney-client privilege found in Para. 151 b(2) of the 1969 Manual. The Rule does, however, provide additional detail. Subdivision (a) is taken verbatim from subdivision (a) of Federal Rule of Evidence 503 as proposed by the Supreme Court. The privilege is only applicable when there are “confidential commu- nications made for the purpose of facilitating the rendition of professional legal services to the client.” A mere discussion with an attorney does not invoke the privilege when the discussion is not made for the purpose of obtaining professional legal services. (b) Definitions— (1) Client. Rule 502(b)(1) defines a “client” as an individual or entity who receives professional legal services from a lawyer or consults a lawyer with a view to obtaining such services. The definition is taken from proposed Federal Rule 503(a)(1) as Para. 151b(2) of the 1969 Manual lacked any general definition of a client. (2) Lawyer. Rule 502(b)(2) defines a “lawyer.” The first por- tion of the paragraph is taken from proposed Federal Rule of E v i d e n c e 5 0 3 ( a ) ( 2 ) a n d e x p l i c i t l y i n c l u d e s a n y p e r s o n “reasonably believed by the client to be authorized” to practice law. The second clause is taken from 1969 Manual Para. 151 b(2) and recognizes that a “lawyer” includes “a member of the armed forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding” regardless of whether that person is in fact a lawyer. See Article 27. Thus an accused is fully protected by the privilege even if defense counsel is not an attorney. The second sentence of the subdivision recognizes the fact, particularly true during times of mobilization, that attorneys may serve in the armed forces in a nonlegal capacity. In such a case, the individual is not treated as an attorney under the Rule unless the individual fits within one of the three specific categories recognized by the subdivision. Subdivision (b)(2)(B) recognizes that a servicemember who knows that an individual is a lawyer in civilian life may not know that the lawyer is not functioning as such in the armed forces and may seek professional legal assist- ance. In such a case the privilege will be applicable so long as the individual was “reasonably believed by the client to be authorized to render professional legal services to members of the armed forces.” (3) Representative of a lawyer. Rule 502(b)(3) is taken from proposed Federal Rule of Evidence 503(a)(3) but has been modi- fied to recognize that personnel are “assigned” within the armed forces as well as employed. Depending upon the particular situa- tion, a paraprofessional or secretary may be a “representative of a lawyer.” See Para. 151 b(2) of the 1969 Manual. ( 4 ) C o n f i d e n t i a l c o m m u n i c a t i o n . R u l e 5 0 2 ( b ) ( 4 ) d e f i n e s a A22-44 App. 22, M.R.E. 501 APPENDIX 22
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“confidential” communication in terms of the intention of the party making the communication. The Rule is similar to the substance of 1969 Manual Para. 151 b(2) which omitted certain communications from privileged status. The new Rule is some- what broader than the 1969 Manual’s provision in that it protects information which is obtained by a third party through accident or design when the person claiming the privilege was not aware that a third party had access to the communication. Compare Rule Para. 151 a of the 1969 Manual. The broader rule has been adopted for the reasons set forth in the Advisory Committee’s notes on proposed Federal Rule 504(a)(4). The provision permit- ting disclosure to persons in furtherance of legal services or reasonably necessary for the transmission of the communication is similar to the provision in the 1969 Manual for communica- tions through agents. Although Para. 151 c of the 1969 Manual precluded a claim of the privilege when there is transmission through wire or radio communications, the new Rules protect statements made via tele- phone, or, “if use of such means of communication is necessary and in furtherance of the communication,” by other “electronic means of communication.” Rule 511(b). (c) Who may claim the privilege. Rule 502(c) is taken from proposed Federal Rule 503(b) and expresses who may claim the lawyer-client privilege. The Rule is similar to but slightly broader than Para. 151 b(2) of the 1969 Manual. The last sentence of the subdivision states that “the authority of the lawyer to claim the privilege is presumed in the absence of evidence to the contrary.” The lawyer may claim the privilege on behalf of the client unless authority to do so has been withheld from the lawyer or evidence otherwise exists to show that the lawyer lacks the au- thority to claim the privilege. (d) Exceptions. Rule 502(d) sets forth the circumstances in which the lawyer-client privilege will not apply notwithstanding the gen- eral application of the privilege. Subdivision (d)(1) excludes statements contemplating the future commission of crime or fraud and combines the substance of 1969 Manual Para. 151 b(2) with proposed Federal Rule of Evi- dence 503(d). Under the exception a lawyer may disclose infor- mation given by a client when it was part of a “communication (which) clearly contemplated the future commission of a crime of fraud,” and a lawyer may also disclose information when it can be objectively said that the lawyer’s services “were sought or obtained to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” The latter portion of the exception is likely to be applicable only after the commission of the offense while the former is applicable when the communication is made. S u b d i v i s i o n s ( d ) ( 2 ) t h r o u g h ( d ) ( 5 ) p r o v i d e e x c e p t i o n s w i t h respect to claims through the same deceased client, breach of duty by lawyer of client, documents attested by lawyers, and commu- nications to an attorney in a matter of common interest among joint clients. There were no parallel provisions in the 1969 Man- ual for these rules which are taken from proposed Federal Rule 503(d). The provisions are included in the event that the circum- stances described therein arise in the military practice. 2013 Amendment. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 503 Communications to clergy (a) General rule of privilege. Rule 503(a) states the basic rule of privilege for communications to clergy and is taken from pro- posed Federal Rule of Evidence 506(b) and 1969 Manual Para. 151b(2). Like the 1969 Manual, the Rule protects communica- tions to a clergyman’s assistant in specific recognition of the nature of the military chaplaincy, and deals only with communi- cations “made either as a formal act of religion or as a matter of conscience.” (b) Definitions. (1) Clergyman. Rule 503(b)(1) is taken from proposed Federal Rule of Evidence 506(a)(1) but has been modified to include specific reference to a chaplain. The Rule does not define “a religious organization” and leaves resolution of that question to precedent and the circumstances of the case. “Clergyman” in- cludes individuals of either sex. (2) Confidential. Rule 503(b)(2) is taken generally from pro- posed Federal Rule of Evidence 506(a)(2) but has been expanded to include communications to a clergyman’s assistant and to ex- plicitly protect disclosure of a privileged communication when “disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the com- munication.” The Rule is thus consistent with the definition of “confidential” used in the lawyer-client privilege, Rule 502(b)(4), and recognizes that military life often requires transmission of c o m m u n i c a t i o n s t h r o u g h t h i r d p a r t i e s . T h e p r o p o s e d F e d e r a l R u l e ’ s l i m i t a t i o n o f t h e p r i v i l e g e t o c o m m u n i c a t i o n s m a d e “privately” was deleted in favor of the language used in the actual Military Rule for the reasons indicated. The Rule is somewhat more protective than the 1969 Manual because of its application to statements which although intended to be confidential are over- heard by others. See Rule 502(b)(4) and 510(a) and the Analysis thereto. 2007 Amendment: The previous subsection (2) of Mil. R. Evid. 503(b) was renumbered subsection (3) and the new subsection (2) was inserted to define the term “clergyman’s assistant.” (c) Who may claim the privilege. Rule 503(c) is derived from proposed Federal Rule of Evidence 506(c) and includes the sub- stance of 1969 Manual Para. 151 b(2) which provided that the privilege may be claimed by the “penitent.” The Rule supplies additional guidance as to who may actually claim the privilege and is consistent with the other Military Rules of Evidence relat- ing to privileges. See Rule 502(c); 504(b)(3); 505(c); 506(c). 2013 Amendment. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 504 Husband-wife privilege ( a ) S p o u s a l i n c a p a c i t y . R u l e 5 0 4 ( a ) i s t a k e n g e n e r a l l y f r o m Trammel v. United States , 445 U.S. 40 (1980) and significantly changes military law in this area. Under prior law, see 1969 Manual Para. 148 e, each spouse had a privilege to prevent the use of the other spouse as an adverse witness. Under the new rule, the witness’ spouse is the holder of the privilege and may choose to testify or not to testify as the witness’ spouse sees fit. But see Rule 504(c) (exceptions to the privilege). Implicit in the rule is the presumption that when a spouse chooses to testify against the other spouse the marriage no longer needs the protec- A22-45 App. 22, M.R.E. 504(a)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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tion of the privilege. Rule 504(a) must be distinguished from Rule 5 0 4 ( b ) , C o n f i d e n t i a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e , which deals with communications rather than the ability to testify generally at trial. Although the witness’ spouse ordinarily has a privilege to re- fuse to testify against the accused spouse, under certain circum- stances no privilege may exists, and the spouse may be compelled to testify. See Rule 504(c). (b) Confidential communication made during marriage. Rule 50 4(b) deals with communications made during a marriage and is distinct from a spouse’s privilege to refuse to testify pursuant to Rule 504(a). See 1969 Manual Para. 151 b(2). (1) General rule of privilege. Rule 504(b)(1) sets forth the general rule of privilege for confidential spousal communications and provides that a spouse may prevent disclosure of any confi- d e n t i a l s p o u s a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e e v e n though the parties are no longer married at the time that disclo- sure is desired. The accused may always require that the confi- dential spousal communication be disclosed. Rule 504(b)(3). No privilege exists under subdivision (b) if the communication was made when the spouses were legally separated. (2) Definition. Rule 504(b)(2) defines “confidential” in a fash- ion similar to the definition utilized in Rules 502(b)(4) and 50 3(b)(2). The word “privately” has been added to emphasize that the presence of third parties is not consistent with the spousal privilege, and the reference to third parties found in Rules 502 and 503 has been omitted for the same reason. Rule 504(b)(2) extends the definition of “confidential” to statements disclosed to third parties who are “reasonably necessary for transmission of t h e c o m m u n i c a t i o n . ” T h i s r e c o g n i z e s t h a t c i r c u m s t a n c e s m a y arise, especially in military life, where spouses may be separated by great distances or by operational activities, in which transmis- sion of a communication via third parties may be reasonably necessary. (3) Who may claim the privilege. Rule 504(b)(3) is consistent with 1969 Manual Para. 151 b(2) and gives the privilege to the spouse who made the communication. The accused may, howev- er, disclose the communication even though the communication was made to the accused. (c) Exceptions. (1) Spouse incapacity only. Rule 504(c)(1) provides exceptions to the spousal incapacity rule of Rule 504(a). The rule is taken from 1969 Manual Para. 148 e and declares that a spouse may not refuse to testify against the other spouse when the marriage has been terminated by divorce or annulment. Annulment has been added to the present military rule as being consistent with its purpose. Separation of spouses via legal separation or otherwise does not affect the privilege of a spouse to refuse to testify against the other spouse. For other circumstances in which a spouse may be compelled to testify against the other spouse, see Rule 504(c)(2). Confidential communications are not affected by the termina- tion of a marriage. (2) Spousal incapacity and confidential communications. Rule 504(c)(2) prohibits application of the spousal privilege, whether in the form of spousal incapacity or in the form of a confidential communication, when the circumstances specified in paragraph (2) are applicable. Subparagraphs (A) and (C) deal with anti- marital acts, e.g., acts which are against the spouse and thus the marriage. The Rule expressly provides that when such an act is involved a spouse may not refuse to testify. This provision is taken from proposed Federal Rule 505(c)(1) and reflects in part the Supreme Court’s decision in Wyatt v. United States , 362 U.S. 525 (1960). See also Trammel v. United States , 445 U.S. 40, 46 n.7 (1980). The Rule thus recognizes society’s overriding interest in prosecution of anti-marital offenses and the probability that a spouse may exercise sufficient control, psychological or other- wise, to be able to prevent the other spouse from testifying volun- tarily. The Rule is similar to 1969 Manual Para. 148 e but has deleted the Manual’s limitation of the exceptions to the privilege to matters occurring after marriage or otherwise unknown to the spouse as being inconsistent with the intent of the exceptions. Rule 504(c)(2)(B) is derived from Para. 148 e and 151 b(2) of the 1969 Manual. The provision prevents application of the privi- leges as to privileged communications if the marriage was a sham at the time of the communication, and prohibits application of the spousal incapacity privilege if the marriage was begun as a sham and is a sham at the time the testimony of the witness is to be offered. Consequently, the Rule recognizes for purposes of subdi- vision (a) that a marriage that began as a sham may have ripened into a valid marriage at a later time. The intent of the provision is to prevent individuals from marrying witnesses in order to effec- tively silence them. 2012 Amendment : Subdivision (c)(2)(D) was added by Execu- tive Order 13593 to create an exception to the privilege when both parties have been substantial participants in illegal activity. 2007 Amendment: (d) Definition. Rule 504(d) modifies the rule a n d i s i n t e n d e d t o a f f o r d a d d i t i o n a l p r o t e c t i o n t o c h i l d r e n . Previously, the term “a child of either,” referenced in Rule 50 4(c)(2)(A), did not include a “de facto” child or a child who is under the physical custody of one of the spouses but lacks a formal legal parent-child relationship with at least one of the spouses. See U.S. v. McCollum , 58 M.J. 323 (C.A.A.F. 2003). Prior to this amendment, an accused could not invoke the spousal p r i v i l e g e t o p r e v e n t d i s c l o s u r e o f c o m m u n i c a t i o n s r e g a r d i n g crimes committed against a child with whom he or his spouse had a formal, legal parent-child relationship; however, the accused could invoke the privilege to prevent disclosure of communica- tions where there was not a formal, legal parent-child relation- s h i p . T h i s d i s t i n c t i o n b e t w e e n l e g a l a n d “ d e f a c t o ” c h i l d r e n resulted in unwarranted discrimination among child victims and ran counter to the public policy of protecting children. Rule 50 4(d) recognizes the public policy of protecting children by addres- sing disparate treatment among child victims entrusted to another. T h e “ m a r i t a l c o m m u n i c a t i o n s p r i v i l e g e s h o u l d n o t p r e v e n t ‘ a properly outraged spouse with knowledge from testifying against a p e r p e t r a t o r ’ o f c h i l d a b u s e w i t h i n t h e h o m e r e g a r d l e s s o f whether the child is part of that family.” U.S. v. McCollum , 58 M.J. 323, 342 n.6 (C.A.A.F. 2003) (citing U.S. v. Bahe , 128 F.3d 1440, 1446 (10th Cir. 1997)). 2011 Amendment. Subsection (c)(2)(D) was added pursuant to Executive Order 13593 of December 13, 2011. 2013 Amendment. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibili- ty. 2016 Amendment: References to gender were removed through- out the rule. Rule 504(c)(1), as amended, makes clear that the A22-46 App. 22, M.R.E. 504(a) APPENDIX 22
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exception only applies to confidential communications. The defi- nition of “confidential communications” was moved to Rule 504(d). Rule 505 Classified information Rule 505 is based upon H.R. 4745, 96th Cong., 1st Sess. (1979), which was proposed by the Executive Branch as a re- sponse to what is known as the “graymail” problem in which the defendant in a criminal case seeks disclosure of sensitive national security information, the release of which may force the govern- ment to discontinue the prosecution. The Rule is also based upon the Supreme Court’s discussion of executive privilege in United States v. Reynolds, 345 U.S. 1 (1953), and United States v. Nixon , 418 U.S. 683 (1974). The rule attempts to balance the interests of an accused who desires classified information for his or her de- f e n s e a n d t h e i n t e r e s t s o f t h e g o v e r n m e n t i n p r o t e c t i n g t h a t information. (a) General rule of privilege. Rule 505(a) is derived from United States v. Reynolds , supra and 1969 Manual Para. 151. Classified information is only privileged when its “disclosure would be detrimental to the national security.” 1993 Amendment: The second sentence was added to clarify that this rule, like other rules of privilege, applies at all stages of all actions and is not relaxed during the sentencing hearing under Mil. R. Evid. 1101(c). (b) Definitions. (1) Classified information. Rule 505(b)(1) is derived from sec- tion 2 of H.R. 4745. The definition of “classified information” is a limited one and includes only that information protected “pur- suant to an executive order, statute, or regulation,” and that mate- rial which constitutes restricted data pursuant to 42 U.S.C. § 2014(y) (1976). (2) National security. Rule 505(b)(2) is derived from section 2 of H.R. 4745. (c) Who may claim the privilege. Rule 505(c) is derived from Para. 151 of the 1969 Manual and is consistent with similar provisions in the other privilege rules. See Rule 501(c). The privilege may be claimed only “by the head of the executive or military department or government agency concerned” and then only upon “a finding that the information is properly classified and that disclosure would be detrimental to the national security.” Although the authority of a witness or trial counsel to claim the privilege is presumed in the absence of evidence to the contrary, neither a witness nor a trial counsel may claim the privilege without prior direction to do so by the appropriate department or agency head. Consequently, expedited coordination with senior headquarters is advised in any situation in which Rule 505 ap- pears to be applicable. (d) Action prior to referral of charges. Rule 505(d) is taken from section 4(b)(1) of H.R. 4745. The provision has been modified to reflect the fact that pretrial discovery in the armed forces, prior to referral, is officially conducted through the convening authority. The convening authority should disclose the maximum amount of r e q u e s t e d i n f o r m a t i o n a s a p p e a r s r e a s o n a b l e u n d e r t h e circumstances. (e) Pretrial session. Rule 505(e) is derived from section 3 of H.R. 4745. (f) Action after referral of charges. Rule 505(f) provides the basic procedure under which the government should respond to a determination by the military judge that classified information “apparently contains evidence that is relevant and material to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence.” See generally the Analysis to Rule 507(d). It should be noted that the government may submit information to the military judge for in camera inspection pursuant to subdivi- sion (i). If the defense requests classified information that it alleges is “relevant and material” and the government refuses to disclose the information to the military judge for inspection, the m i l i t a r y j u d g e m a y p r e s u m e t h a t t h e i n f o r m a t i o n i s i n f a c t “relevant and material.” (g) Disclosure of classified information to the accused. Para- graphs (1) and (2) of Rule 505(g) are derived from section 4 of H.R. 4745. Paragraph (3) is taken from section 10 of H.R. 4745 but has been modified in view of the different application of the Jencks Act, 18 U.S.C. § 3500 (1976) in the armed forces. Para- graph (4) is taken from sections 4(b)(2) and 10 of H.R. 4745. The reference in H.R. 4745 to a recess has been deleted as being unnecessary in view of the military judge’s inherent authority to call a recess. 1993 Amendment: Subsection (g)(1)(D) was amended to make clear that the military judge’s authority to require security clear- ances extends to persons involved in the conduct of the trial as well as pretrial preparation for it. The amendment requires per- sons needing security clearances to submit to investigations nec- essary to obtain the clearance. (h) Notice of the accused’s intention to disclose classified infor- mation. Rule 505(h) is derived from section 5 of H.R. 4745. The intent of the provision is to prevent disclosure of classified infor- mation by the defense until the government has had an opportu- nity to determine what position to take concerning the possible disclosure of that information. Pursuant to Rule 505(h)(5), failure to comply with subdivision (h) may result in a prohibition on the use of the information involved. 1993 Amendment: Subsection (h)(3) was amended to require specificity in detailing the items of classified information ex- pected to be introduced. The amendment is based on United States v. Collins , 720 F.2d. 1195 (11th Cir. 1983). (i) In camera proceedings for cases involving classified informa- tion. Rule 505(i) is derived generally from section 5 of H.R. 4745. The “ in camera ” procedure utilized in subdivision (i) is generally new to military law. Neither the accused nor defense counsel may be excluded from the in camera proceeding. Howev- er, nothing within the Rule requires that the defense be provided with a copy of the classified material in question when the gov- ernment submits such information to the military judge pursuant to Rule 505(i)(3) in an effort to obtain an in camera proceeding u n d e r t h i s R u l e . I f s u c h i n f o r m a t i o n h a s n o t b e e n d i s c l o s e d previously, the government may describe the information by ge- neric category, rather than by identifying the information. Such description is subject to approval by the military judge, and if not sufficiently specific to enable the defense to proceed during the in camera session, the military judge may order the government to release the information for use during the proceeding or face the sanctions under subdivision (i)(4)(E). 1993 Amendment: Subsection (i)(3) was amended to clarify that A22-47 App. 22, M.R.E. 505(i)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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the classified material and the government’s affidavit are submit- ted only to the military judge. The word “only” was placed at the end of the sentence to make it clear that it refers to “military judge” rather than to “examination.” The military judge is to examine the affidavit and the classified information without dis- closing it before determining to hold an in camera proceeding as defined in subsection (i)(1). The second sentence of subsection (i)(4)(B) was added to pro- vide a standard for admission of classified information in sentenc- ing proceedings. (j) Introduction of classified information. Rule 505(j) is derived from section 8 of H.R. 4745 and United States v. Grunden , 2 M.J. 116 (C.M.A. 1977). 1993 Amendment: Subsection (j)(5) was amended to provide that the military judge’s authority to exclude the public extends to the presentation of any evidence that discloses classified information, and not merely to the testimony of witnesses. See generally, United States v. Hershey , 20 M.J. 433 (C.M.A. 1985), cert. de- nied, 474 U.S. 1062 (1986) (specifies factors to be considered in the trial judge’s determination to close the proceedings). (k) Security procedures to safeguard against compromise of clas- sified information disclosed to courts-martial. Rule 505(k) is de- rived from section 9 of H.R. 4745. 2 0 1 3 A m e n d m e n t . T h i s r u l e w a s s i g n i f i c a n t l y r e s t r u c t u r e d . These changes bring greater clarity and regularity to military practice. The changes focus primarily on expanding the military judge’s explicit authority to conduct ex parte pretrial conferences in connection with classified information and detailing when the military judge is required to do so, limiting the disclosure of classified information per order of the military judge, specifically outlining the process by which the accused gains access to and may request disclosure of classified information, and the proce- dures for using classified material at trial. The drafters intended that the changes ensure classified information is not needlessly disclosed while at the same time ensure that the accused’s right to a fair trial is maintained. The drafters adopted some of the lan- guage from the Military Commissions Rules of Evidence and the Classified Information Procedures Act. Rule 506 Government information other than classified information (a) General rule of privilege. Rule 506(a) states the general rule of privilege for nonclassified government information. The Rule recognizes that in certain extraordinary cases the government should be able to prohibit release of government information which is detrimental to the public interest. The Rule is modeled on Rule 505 but is more limited in its scope in view of the greater l i m i t a t i o n s a p p l i c a b l e t o n o n c l a s s i f i e d i n f o r m a t i o n . C o m p a r e United States v. Nixon , 418 U.S. 683 (1974) with United States v. Reynolds, 345 U.S. 1 (1953). Rule 506 addresses those similar matters found in 1969 Manual Para. 151 b(1) and 151 b(3). Under Rule 506(a) information is privileged only if its disclosure would be “detrimental to the public interest.” It is important to note that pursuant to Rule 506(c) the privilege may be claimed only “by the head of the executive or military department or government agency concerned” unless investigations of the Inspectors General are concerned. Under Rule 506(a) there is no privilege if disclosure of the information concerned is required by an Act of Congress such as the Freedom of Information Act, 5 U.S.C. § 552 (1976). Disclo- sure of information will thus be broader under the Rule than under the 1969 Manual. See United States v. Nixon , supra. (b) Scope. Rule 506(b) defines “Government information” in a nonexclusive fashion, and expressly states that classified informa- tion and information relating to the identity of informants are solely within the scope of other Rules. (c) Who may claim the privilege. Rule 506(c) distinguishes be- tween government information in general and investigations of the Inspectors General. While the privilege for the latter may be claimed “by the authority ordering the investigation or any supe- rior authority,” the privilege for other government information may be claimed only “by the head of the executive or military department or government agency concerned.” See generally the Analysis to Rule 505(c). 1990 Amendment: Subsection (c) was amended by substituting the words “records and information” for “investigations”, which is a term of art vis-a-vis Inspector General functions. Inspectors General also conduct “inspections” and “inquiries,” and use of the word “records and information” is intended to cover all docu- ments and information generated by or related to the activities of Inspectors General. “Records” includes reports of inspection, in- quiry, and investigation conducted by an Inspector General and extracts, summaries, exhibits, memoranda, notes, internal corre- spondence, handwritten working materials, untranscribed short- hand or stenotype notes of unrecorded testimony, tape recordings and other supportive records such as automated data extracts. In conjunction with this change, the language identifying the official entitled to claim the privilege for Inspector General records was changed to maintain the previous provision which allowed the superiors of Inspector General officers, rather than the officers themselves, to claim the privilege. (d) Action prior to referral of charges. Rule 506(d) specifies action to be taken prior to referral of charges in the event of a claim of privilege under the Rule. See generally Rule 505(d) and its Analysis. Note that disclosures can be withheld only if action u n d e r p a r a g r a p h ( 1 ) – ( 4 ) o f s u b d i v i s i o n ( d ) c a n n o t b e m a d e “without causing identifiable damage to the public interest” (em- phasis added). (e) Action after referral of charges. See generally Rule 505(f) and its Analysis. Note that unlike Rule 505(f), however, Rule 50 6(e) does not require a finding that failure to disclose the infor- mation in question “would materially prejudice a substantial right of the accused.” Dismissal is required when the relevant informa- tion is not disclosed in a “reasonable period of time.” 1995 Amendment: It is the intent of the Committee that if classified information arises during a proceeding under Rule 506, the procedures of Rule 505 will be used. The new subsection (e) was formerly subsection (f). The mat- ters in the former subsection (f) were adopted without change. The former subsection (e) was amended and redesignated as sub- section (f) (see below). (f) Pretrial session. Rule 506(f) is taken from Rule 505(e). It is the intent of the Committee that if classified information arises during a proceeding under Rule 506, the procedures of Rule 505 will be used. 1995 Amendment: See generally Rule 505(f) and its accompa- nying Analysis. Note that unlike Rule 505(f), however, Rule 50 6(f) does not require a finding that failure to disclose the informa- A22-48 App. 22, M.R.E. 505(i) APPENDIX 22
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tion in question “would materially prejudice a substantial right of the accused.” Dismissal is not required when the relevant infor- mation is not disclosed in a “reasonable period of time.” Subsection (f) was formerly subsection (e). The subsection was amended to cover action after a defense motion for discovery, rather than action after referral of charges. The qualification that the government claim of privilege pertains to information “that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in a court-martial proceeding” was deleted as unnecessary. Action by the convening authority is required if, after referral, the defense moves for disclosure and the Government claims the information is privileged from disclosure. (g) Disclosure of government information to the accused. Rule 50 6(g) is taken from Rule 505(g) but deletes references to classified information and clearances due to their inapplicability. (h) Prohibition against disclosure. Rule 506(h) is derived from Rule 505(h)(4). The remainder of Rule 505(h)(4) and Rule 505(h) generally has been omitted as being unnecessary. No sanction for violation of the requirement has been included. 1995 Amendment: Subsection (h) was amended to provide that government information may not be disclosed by the accused unless authorized by the military judge. (i) In camera proceedings. Rule 506(i) is taken generally from Rule 505(i), but the standard involved reflects 1969 Manual Para. 151 and the Supreme Court’s decision in United States v. Nixon , supra. In line with Nixon, the burden is on the party claiming the privilege to demonstrate why the information involved should not be disclosed. References to classified material have been deleted as being inapplicable. 1995 Amendment: Subsection (i) was amended to clarify the procedure for in camera proceedings. The definition in subsection (i)(1) was amended to conform to the definition of in camera proceedings in Mil. R. Evid. 505(i)(1). Subsections (i)(2) and ( i ) ( 3 ) w e r e u n c h a n g e d . S u b s e c t i o n ( i ) ( 4 ) ( B ) , r e d e s i g n a t e d a s (i)(4)(C), was amended to include admissible evidence relevant to punishment of the accused, consistent with Brady v. Maryland , 373 U.S. 83, 87 (1963). Subsection (i)(4)(C) was redesignated as (i)(4)(D), but was otherwise unchanged. The amended procedures provide for full disclosure of the government information in ques- tion to the accused for purposes of litigating the admissibility of the information in the protected environment of the in camera proceeding; i.e., the Article 39(a) session is closed to the public and neither side may disclose the information outside the in camera proceeding until the military judge admits the information as evidence in the trial. Under subsection (i)(4)(E), the military judge may authorize alternatives to disclosure, consistent with a military judge’s authority concerning classified information under Mil. R. Evid. 505. Subsection (i)(4)(F) allows the Government to determine whether the information ultimately will be disclosed to the accused. However, the Government’s continued objection to disclosure may be at the price of letting the accused go free, in that subsection (i)(4)(F) adopts the sanctions available to the military judge under Mil. R. Evid. 505(i)(4)(E). See United States v. Reynolds , 345 U.S. 1, 12 (1953). (k) Introduction of government information subject to a claim of privilege. Rule 506(k) is derived from Rule 505(j) with appropri- ate modifications being made to reflect the nonclassified nature of the information involved. 1995 Amendment: Subsection (j) was added to recognize the G o v e r n m e n t ’ s r i g h t t o a p p e a l c e r t a i n r u l i n g s a n d o r d e r s . S e e R.C.M. 908. The former subsection (j) was redesignated as sub- section (k). The subsection speaks only to government appeals; the defense still may seek extraordinary relief through interlocu- tory appeal of the military judge’s orders and rulings. See gener- ally, 28 U.S.C. § 1651(a); Waller v. Swift , 30 M.J. 139 (C.M.A. 1990); Dettinger v. United States , 7 M.J. 216 (C.M.A. 1979). (l) Procedures to safeguard against compromise of government information disclosed to courts-martial. Rule 506(k) is derived from Rule 505(k). Such procedures should reflect the fact that material privileged under Rule 506 is not classified. 2013 Amendment. This rule was significantly revised. These changes bring greater clarity to the rule and align it with changes made to Mil. R. Evid. 505. Rule 507 Identity of informants (a) Rule of privilege. Rule 507(a) sets forth the basic rule of privilege for informants and contains the substance of 1969 Man- ual Para. 151 b(1). The new Rule, however, provides greater detail as to the application of the privilege than did the 1969 manual. The privilege is that of the United States or political subdivi- sion thereof and applies only to information relevant to the iden- tity of an informant. An “informant” is simply an individual who has supplied “information resulting in an investigation of a possi- ble violation of law” to a proper person and thus includes good citizen reports to command or police as well as the traditional “ c o n f i d e n t i a l i n f o r m a n t s ” w h o m a y b e c o n s i s t e n t s o u r c e s o f information. (b) Who may claim the privilege. Rule 507(b) provides for claim- ing the privilege and distinguishes between representatives of the United States and representatives of a state or subdivision thereof. Although an appropriate representative of the United States may always claim the privilege when applicable, a representative of a state or subdivision may do so only if the information in question was supplied to an officer of the state or subdivision. The Rule is taken from proposed Federal Rule of Evidence 510(b), with ap- propriate modifications, and is similar in substances to Para. 151 b(1) of the 1969 Manual which permitted “appropriate govern- mental authorities” to claim the privilege. The Rule does not specify who an “appropriate representative” is. Normally, the trial counsel is an appropriate representative of the United States. The Rule leaves the question open, however, for case by case resolution. Regulations could be promulgated which could specify who could be an appropriate representative. (c) Exceptions. Rule 507(c) sets forth the circumstances in which the privilege is inapplicable. (1) Voluntary disclosures; informant as witness. Rule 507(c)(1) makes it clear that the privilege is inapplicable if circumstances have nullified its justification for existence. Thus, there is no reason for the privilege, and the privilege is consequently inappli- cable, if the individual who would have cause to resent the in- formant has been made aware of the informant’s identity by a holder of the privilege or by the informant’s own action or when the witness testifies for the prosecution thus allowing that person to ascertain the informant’s identity. This is in accord with the A22-49 App. 22, M.R.E. 507(c)(1)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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intent of the privilege which is to protect informants from repris- als. The Rule is taken from Para. 151 b(1) of the 1969 Manual. (2) Testimony on the issue of guilt or innocence. Rule 50 7(c)(2) is taken from 1969 Manual Para. 151 b (1) and recognizes that in certain circumstances the accused may have a due process right under the Fifth Amendment, as well as a similar right under the Uniform Code of Military Justice, to call the informant as a witness. The subdivision intentionally does not specify what cir- cumstances would require calling the informant and leaves resolu- tion of the issue to each individual case. (3) Legality of obtaining evidence. Rule 507(c)(3) is new. The Rule recognizes that circumstances may exist in which the Con- stitution may require disclosure of the identity of an informant in the context of determining the legality of obtaining evidence under Rule 311; see, e.g., Franks v. Delaware , 438 U.S. 154, 170 (1978); McCray v. Illinois , 386 U.S. 300 (1976) (both cases indicate that disclosure may be required in certain unspecified circumstances but do not in fact require such disclosure). In view of the highly unsettled nature of the issue, the Rule does not specify whether or when such disclosure is mandated and leaves the determination to the military judge in light of prevailing case law utilized in the trial of criminal cases in the Federal district courts. (d) Procedures. Rule 507(d) sets forth the procedures to be fol- lowed in the event of a claim of privilege under Rule 507. If the prosecution elects not to disclose the identity of an informant when the judge has determined that disclosure is required, that matter shall be reported to the convening authority. Such a report is required so that the convening authority may determine what action, if any, should be taken. Such actions could include disclo- sure of the informant’s identity, withdrawal of charges, or some appropriate appellate action. 2013 Amendment. Subsection (b) was added to define terms that are used throughout the rule and adding subsection (e)(1) to permit the military judge to hold an in camera review upon request by the prosecution. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 508 Political vote Rule 508 is taken from proposed Federal Rule of Evidence 507 and expresses the substance of 18 U.S.C. § 596, which is applica- ble to the armed forces. The privilege is considered essential for the armed forces because of the unique nature of military life. Rule 509 Deliberation of courts and juries Rule 509 is taken from 1969 Manual Para. 151 but has been modified to ensure conformity with Rule 606(b) which deals specifically with disclosure of deliberations in certain cases. 2 0 1 3 A m e n d m e n t . T h e l a n g u a g e “ c o u r t s - m a r t i a l , m i l i t a r y judges” was added to this rule, which now conforms to CAAF’s holding in United States v. Matthews , 68 M.J. 29 (C.A.A.F. 2009). In that case, CAAF held that this rule as it was previously written created an implied privilege that protected the deliberative process of a military judge from disclosure and that testimony t h a t r e v e a l e d t h e d e l i b e r a t i v e t h o u g h t p r o c e s s o f t h e m i l i t a r y judge is inadmissible. Matthews, 68 M.J. at 38-43. The changes simply express what the court found had previously been implied. Rule 510 Waiver of privilege by voluntary disclosure Rule 510 is derived from proposed Federal Rule of Evidence 511 and is similar in substance to 1969 Manual Para. 151 a which notes that privileges may be waived. Rule 510(a) simply provides that “disclosure of any significant part of the matter or communi- cation under such circumstances that it would be inappropriate to claim the privilege” will defeat and waive the privilege. Disclo- sure of privileged matter may be, however, itself privileged; see Rules 502(b)(4); 503(b)(2); 504(b)(2). Information disclosed in the form of an otherwise privileged telephone call ( e.g., informa- tion overheard by an operator) is privileged, Rule 511(b), and information disclosed via transmission using other forms of com- munication may be privileged; Rule 511(b). Disclosure under certain circumstances may not be “inappropriate” and the infor- mation will retain its privileged character. Thus, disclosure of an informant’s identity by one law enforcement agency to another may well be appropriate and not render Rule 507 inapplicable. Rule 510(b) is taken from Para. 151 b(1) of the 1969 Manual and makes it clear that testimony pursuant to a grant of immunity does not waive the privilege. Similarly, an accused who testifies in his or her own behalf does not waive the privilege unless the a c c u s e d t e s t i f i e s v o l u n t a r i l y t o t h e p r i v i l e g e d m a t t e r o f communication. Rule 511 Privileged matter disclosed under compulsion or without opportunity to claim privilege Rule 511(a) is similar to proposed Federal Rule of Evidence 512. Placed in the context of the definition of “confidential” utilized in the privilege rules, see, Rule 502(b)(4), the Rule is substantially different from prior military law inasmuch as prior law permitted utilization of privileged information which had been gained by a third party through accident or design. See Para. 151 b (1), MCM, 1969 (Rev.). Such disclosures are generally safeguarded against via the definition “confidential” used in the new Rules. Generally, the Rules are more protective of privileged information than was the 1969 Manual. Rule 511(b) is new and deals with electronic transmission of information. It recognizes that the nature of the armed forces today often requires such information transmission. Like 1969 Manual Para. 151 b(1), the new Rule does not make a non- privileged communication privileged; rather, it simply safeguards already privileged information under certain circumstances. The first portion of subdivision (b) expressly provides that o t h e r w i s e p r i v i l e g e d i n f o r m a t i o n t r a n s m i t t e d b y t e l e p h o n e remains privileged. This is in recognition of the role played by the telephone in modern life and particularly in the armed forces where geographical separations are common. The Committee was of the opinion that legal business cannot be transacted in the 20th century without customary use of the telephone. Consequently, privileged communications transmitted by telephone are protected even though those telephone conversations are known to be moni- tored for whatever purpose. Unlike telephonic communications, Rule 511(b) protects other forms of electronic communication only when such means “is A22-50 App. 22, M.R.E. 507(c)(1) APPENDIX 22
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necessary and in furtherance of the communication.” It is irrele- vant under the Rule as to whether the communication in question was in fact necessary. The only relevant question is whether, once the individual decided to communicate, the means of communica- tion was necessary and in furtherance of the communication. Transmission of information by radio is a means of communica- tion that must be tested under this standard. 2013 Amendment. Titles were added to the subsections of this rule, improving the rule’s clarity and ease of use. Rule 512 Comment upon or inference from claim of privilege; instruction (a) Comment or inference not permitted. Rule 512(a) is derived from proposed Federal Rule 513. The Rule is new to military law but is generally in accord with the Analysis of Contents of the 1969 Manual; United States Department of the Army, Pamphlet No. 27–2, Analysis of Contents, Manual for Courts-Martial 1969, Revised Edition, 27–33, 27–38 (1970). Rule 512(a)(1) prohibits any inference or comment upon the exercise of a privilege by the accused and is taken generally from proposed Federal Rule of Evidence 513(a). Rule 512(a)(2) creates a qualified prohibition with respect to any inference or comment upon the exercise of a privilege by a person not the accused. The Rule recognizes that in certain cir- cumstances the interests of justice may require such an inference and comment. Such a situation could result, for example, when the government’s exercise of a privilege has been sustained, and an inference adverse to the government is necessary to preserve the fairness of the proceeding. ( b ) C l a i m i n g p r i v i l e g e w i t h o u t k n o w l e d g e o f m e m b e r s . R u l e 512(b) is intended to implement subdivision (a). Where possible, claims of privilege should be raised at an Article 39(a) session or, if practicable, at sidebar. (c) Instruction. Rule 512(c) requires that relevant instructions be given “upon request.” Cf. Rule 105. The military judge does not have a duty to instruct sua sponte. Rule 513 Psychotherapist-patient privilege 1999 Amendment: Military Rule of Evidence 513 establishes a psychotherapist-patient privilege for investigations or proceedings authorized under the Uniform Code of Military Justice. Rule 513 clarifies military law in light of the Supreme Court decision in Jaffee v. Redmond , 518 U.S. 1, 116 S. Ct. 1923, 135 L.Ed.2d 337 (1996). Jaffee interpreted Federal Rule of Evidence 501 to create a federal psychotherapist-patient privilege in civil proceedings and refers federal courts to state laws to determine the extent of privileges. In deciding to adopt this privilege for courts-martial, the committee balanced the policy of following federal law and rules, when practicable and not inconsistent with the UCMJ or MCM, with the needs of commanders for knowledge of certain types of information affecting the military. The exceptions to the rule have been developed to address the specialized society of the military and separate concerns that must be met to ensure military readiness and national security. See Parker v. Levy , 417 U.S. 733, 743 (1974); U.S. ex rel. Toth v. Quarles , 350 U.S. 11, 17 (1955); Dept. of the Navy v. Egan , 484 U.S. 518, 530 (1988). There is no intent to apply Rule 513 in any proceeding other than those authorized under the UCMJ. Rule 513 was based in part on proposed Fed. R. Evid. 504 (not adopted) and state rules of evidence. Rule 513 is not a physician-patient privilege. It is a separate rule based on the social benefit of confidential counsel- ing recognized by Jaffee, and similar to the clergy-penitent privi- lege. In keeping with American military law since its inception, there is still no physician-patient privilege for members of the Armed Forces. See the analyses for Rule 302 and Rule 501. (a) General rule of privilege. The words “under the UCMJ” in this rule mean Rule 513 applies only to UCMJ proceedings, and do not limit the availability of such information internally to the services, for appropriate purposes. (d) Exceptions These exceptions are intended to emphasize that military commanders are to have access to all information that is necessary for the safety and security of military personnel, opera- tions, installations, and equipment. Therefore, psychotherapists are to provide such information despite a claim of privilege. 2012 Amendment: Executive Order 13593 removed communi- cations about spouse abuse as an exception to the privilege by deleting the words “spouse abuse” and “the person of the other spouse or” from Rule 513(d)(2), thus expanding the overall scope of the privilege. In removing the spouse abuse exception to Rule 513, the privilege is now consistent with Rule 514 in that spouse victim communications to a provider who qualifies as both a psychotherapist for purposes of Rule 513 and victim advocate for purposes of Mil. R. Evid. 514 are covered by the privilege. 2011 Amendment. In Executive Order 13593 of December 13, 2011, the President removed communications about spouse abuse as an exception to the spousal privilege by deleting the words “spouse abuse” and “the person of the other spouse or” from Mil. R. Evid. 513(d)(2), thus expanding the overall scope of the privi- lege. The privilege is now consistent with Mil. R. Evid. 514 in that spouse victim communications to a provider who qualifies as both a psychotherapist for purposes of Mil. R. Evid. 513 or as a victim advocate for purposes of Mil. R. Evid. 514 are covered. 2013 Amendment. The amendment to subsection (e)(3) further expands the military judge’s authority and discretion to conduct in camera reviews. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibili- ty. 2015 Amendment : Rule 513(e)(2) was revised in accordance with L.R.M. v. Kastenberg , 72 M.J. 364 (C.A.A.F. 2013), and Sections 534(c) and 537 of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 514 Victim advocate-victim privilege 2012 Amendment: Like the psychotherapist-patient privilege created by Rule 513, Rule 514 establishes a victim advocate- v i c t i m p r i v i l e g e f o r i n v e s t i g a t i o n s o r p r o c e e d i n g s a u t h o r i z e d under the Uniform Code of Military Justice. Implemented as another approach to improving the military’s overall effectiveness in addressing the crime of sexual assault, facilitating candor be- tween victims and victim advocates, and mitigating the impact of the court-martial process on victims, the rule specifically emerged in response to concerns raised by members of Congress, commu- nity groups, and The Defense Task Force on Sexual Assault in the Military Services (DTFSAMS). In its 2009 report, DTFSAMS noted the following: 35 states had a privilege for communications between victim advocates and victims of sexual assault; victims did not believe they could communicate confidentially with medi- A22-51 App. 22, M.R.E. 514ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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cal and psychological support services provided by DoD; victims perceived interference with the victim-victim advocate relation- ship and continuing victim advocate services when the victim advocate was identified as a potential witness in a court-martial; and service members reported being “re-victimized” when their prior statements to victim advocates were used to cross-examine them in court-martial proceedings. DTFSAMS recommended that Congress “enact a comprehensive military justice privilege for communications between a Victim Advocate and a victim of sexual assault.” Both the DoD Joint Service Committee on Mili- tary Justice and Congress began considering a privilege. The Committee modeled proposed Rule 514 after Rule 513, including its various exceptions, in an effort to balance the privacy of the victim’s communications with a victim advocate against the ac- cused’s legitimate needs. Differing proposals for a victim advo- cate privilege were suggested as part of the National Defense Authorization Act for 2011 (NDAA), but were not enacted. A victim advocate privilege passed the House of Representatives as part of the NDAA for 2012, while the Senate version required the President to issue a Military Rule of Evidence providing a privi- lege. Congress removed both provisions because Rule 514 was pending the President’s signature and Congress was satisfied that once implemented, this Rule accomplished the objective of ensur- ing privileged communications for sexual assault victims. (a) General rule of privilege. The words “under the UCMJ” in Rule 514 mean that the privilege only applies to UCMJ proceed- ings. It does not apply in situations in which the offender cannot be prosecuted under the UCMJ. Furthermore, this Rule only ap- plies to communications between a victim advocate and the vic- tim of a sexual or violent offense. (b) Definitions. The Committee intended the definition of “victim advocate” from Rule 514 to include, but not be limited to, person- nel performing victim advocate duties within the DoD Sexual Assault Prevention and Response Office (such as a Sexual As- sault Response Coordinator), and the DoD Family Advocacy Pro- g r a m ( s u c h a s a d o m e s t i c a b u s e v i c t i m a d v o c a t e ) . A v i c t i m liaison appointed pursuant to the Victim and Witness Assistance Program is not a “victim advocate” for purposes of this Rule, nor are personnel working within an Equal Opportunity or Inspector General office. For purposes of this Rule, the Committee intended “violent offense” to mean an actual or attempted murder, man- slaughter, rape, sexual assault, aggravated assault, robbery, assault consummated by a battery and similar offenses. A simple assault may be a violent offense where the violence has been physically attempted or menaced. A mere threatening in words is not a violent offense. The Committee recognizes that this Rule will be applicable in situations where there is a factual dispute as to whether a sexual or violent offense occurred and whether a per- son actually suffered direct physical or emotional harm of such an offense. The fact that such findings have not been judicially established shall not prevent application of this Rule to alleged victims reasonably intended to be covered by this Rule. (d) Exceptions. The exceptions to Rule 514 are similar to the exceptions found in Rule 513, and are intended to be applied in the same manner. Rule 514 does not include comparable excep- tions found within Rule 513(d)(2) and 513(d)(7). In drafting the “constitutionally required” exception, the Committee intended that communication covered by the privilege would be released only in the narrow circumstances where the accused could show harm of constitutional magnitude if such communication was not dis- closed. In practice, this relatively high standard of release is not intended to invite a fishing expedition for possible statements made by the victim, nor is it intended to be an exception that effectively renders the privilege meaningless. If a military judge finds that an exception to this privilege applies, special care should be taken to narrowly tailor the release of privileged com- m u n i c a t i o n s t o o n l y t h o s e s t a t e m e n t s w h i c h a r e r e l e v a n t a n d whose probative value outweighs unfair prejudice. The fact that otherwise privileged communications are admissible pursuant to an exception of Rule 514 does not prohibit a military judge from imposing reasonable limitations on cross-examination. See Dela- ware v. Van Arsdall , 475 U.S. 673, 679 (1986); United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011); United States v. El- lerbrock, 70 M.J. 314 (C.A.A.F. 2011). See also Rule 611. 2 0 1 3 A m e n d m e n t . L i k e t h e p s y c h o t h e r a p i s t - p a t i e n t p r i v i l e g e created by Mil. R. Evid. 513, Mil. R. Evid. 514 establishes a victim advocate-victim privilege for investigations or proceedings authorized under the Uniform Code of Military Justice. Imple- mented as another approach to improving the military’s overall effectiveness in addressing the crime of sexual assault, facilitating candor between victims and victim advocates, and mitigating the i m p a c t o f t h e c o u r t - m a r t i a l p r o c e s s o n v i c t i m s , t h e r u l e w a s developed in response to concerns raised by members of Con- gress, community groups, and the Defense Task Force on Sexual Assault in the Military Services (DTFSAMS). In its 2009 report, DTFSAMS noted that: 35 states had a privilege for communica- tions between victim advocates and victims of sexual assault; victims did not believe they could communicate confidentially with medical and psychological support service personnel pro- vided by DoD; there was interference with the victim-victim a d v o c a t e r e l a t i o n s h i p a n d c o n t i n u i n g v i c t i m a d v o c a t e s e r v i c e s when the victim advocate was identified as a potential witness in a court-martial; and service members reported being “re-victim- ized” when their prior statements to victim advocates were used to cross-examine them in court-martial proceedings. Report of the Defense Task Force on Sexual Assault in the Military Services , at 69 (Dec. 2009). DTFSAMS recommended that Congress “enact a comprehensive military justice privilege for communications be- tween a Victim Advocate and a victim of sexual assault.” Id. at ES-4. The JSC chose to model a proposed Mil. R. Evid. 514 on Mil. R. Evid. 513, including its various exceptions, in an effort to balance the privacy of the victim’s communications with a victim advocate against the accused’s legitimate needs. Under subsection (a) of Mil. R. Evid. 514, the words “under the Uniform Code of Military Justice” mean that the privilege only applies to alleged misconduct that could result in UCMJ proceedings. It does not apply in situations in which the alleged offender is not subject to UCMJ jurisdiction. The drafters did not intend Mil. R. Evid. 514 to apply in any proceeding other than those authorized under the UCMJ. However, service regulations dictate how the privilege is applied to non-UCMJ proceedings. Furthermore, this rule only applies to communications between a victim advocate and the victim of an alleged sexual or violent offense. Under subsection (b), the definition of “victim advocate” in- cludes, but is not limited to, personnel performing victim advo- c a t e d u t i e s w i t h i n t h e D o D S e x u a l A s s a u l t P r e v e n t i o n a n d Response Office (such as a Sexual Assault Response Coordina- A22-52 App. 22, M.R.E. 514 APPENDIX 22
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tor), and the DoD Family Advocacy Program (such as a domestic abuse victim advocate). To determine whether an official’s duties encompass victim advocate responsibilities, DoD and military service regulations should be consulted. A victim liaison ap- pointed pursuant to the Victim and Witness Assistance Program is not a “victim advocate” for purposes of this rule, nor are person- nel working within an Equal Opportunity or Inspector General office. For purposes of this rule, “violent offense” means an actual or attempted murder, manslaughter, rape, sexual assault, aggravated assault, robbery, assault consummated by a battery, or similar offense. A simple assault may be a violent offense where v i o l e n c e h a s b e e n p h y s i c a l l y a t t e m p t e d o r m e n a c e d . A m e r e threatening in words is not a violent offense. This rule will apply in situations where there is a factual dispute as to whether a sexual or violent offense occurred and whether a person actually suffered direct physical or emotional harm from such an offense. The fact that such findings have not been judicially established shall not prevent application of this rule to alleged victims reason- ably intended to be covered by this rule. Under subsection (d), the exceptions to Mil. R. Evid. 514 are similar to the exceptions found in Mil. R. Evid. 513, and the drafters intended them to be applied in the same manner. Mil. R. Evid. 514 does not include comparable exceptions found within Mil. R. Evid. 513(d)(2) and 513(d)(7). Under the “constitutionally required” exception, communications covered by the privilege would be released only in the narrow circumstances where the accused could show harm of constitutional magnitude if such communication was not disclosed. The drafters intended this rela- tively high standard of release to preclude fishing expeditions for possible statements made by the victim; the drafters did not in- tend it to be an exception that effectively renders the privilege meaningless. If a military judge finds that an exception to this privilege applies, special care should be taken to narrowly tailor the release of privileged communications to only those statements that are relevant and whose probative value outweighs unfair prejudice. The fact that otherwise privileged communications are admissible pursuant to an exception of Mil. R. Evid. 514 does not prohibit a military judge from imposing reasonable limitations on cross-examination. See Delaware v. Van Arsdall , 475 U.S. 673, 6 7 9 ( 1 9 8 6 ) ; U n i t e d S t a t e s v . G a d d i s , 7 0 M . J . 2 4 8 , 2 5 6 - 5 7 (C.A.A.F. 2011); United States v. Ellerbrock , 70 M.J. 314, 318 (C.A.A.F. 2011). 2015 Amendment : Rule 514(e)(2) was revised in accordance with L.R.M. v. Kastenberg , 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 514 was also revised to protect communications made to the Depart- ment of Defense Safe Helpline, which is a crisis support service for victims of sexual assault in the Department of Defense. The Department of Defense Safe Helpline was established in 2011 under a contract with the Rape, Abuse & Incest National Net- work. Rule 514(e) was amended to adopt a legal threshold that must be satisfied before a military judge may order an in camera review of records or communications falling within the privilege. While not required by Section 537 of the National Defense Au- thorization Act for Fiscal Year 2015, the Rule 514 threshold was modeled after the Rule 513 threshold required by that Section. SECTION VI WITNESSES Rule 601 Competency to testify in general Rule 601 is taken without change from the first portion of Federal Rule of Evidence 601. The remainder of the Federal Rule was deleted due to its sole application to civil cases. In declaring that subject to any other Rule, all persons are competent to be witnesses, Rule 601 supersedes Para. 148 of the 1969 Manual which required, among other factors, that an indi- vidual know the difference between truth and falsehood and un- derstand the moral importance of telling the truth in order to testify. Under Rule 601 such matters will go only to the weight of the testimony and not to its competency. The Rule’s reference to other rules includes Rules 603 (Oath or Affirmation), 605 (Com- petency of Military Judge as Witness), 606 (Competency of Court Member as Witness), and the rules of privilege. The plain meaning of the Rule appears to deprive the trial j u d g e o f a n y d i s c r e t i o n w h a t s o e v e r t o e x c l u d e t e s t i m o n y o n grounds of competency unless the testimony is incompetent under those specific rules already cited supra; see, United States v. Fowler, 605 F.2d 181 (5th Cir. 1979), a conclusion bolstered by the Federal Rules of Evidence Advisory Committee’s Note, S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 270 (2d ed. 1977). Whether this conclusion is accu- rate, especially in the light of Rule 403, is unclear. Id. at 269; see a l s o U n i t e d S t a t e s v . C a l a h a n , 4 4 2 F . S u p p . 1 2 1 3 ( D . M i n n . 1978). 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 602 Need for personal knowledge Rule 602 is taken without significant change from the Federal Rule and is similar in content to Para. 138 d, MCM, 1969 (Rev.). Although the 1969 Manual expressly allowed an individual to testify to his or her own age or date of birth, the Rule is silent of the issue. Notwithstanding that silence, however, it appears that it is within the meaning of the Rule to allow such testimony. Rule 80 4(b)(4) (Hearsay Exceptions; Declarant Unavailable—Statement of Personal or Family History) expressly permits a hearsay state- ment “concerning the declarant’s own birth . . . or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated.” It seems evident that if such a hearsay statement is admissible, in- court testimony by the declarant should be no less admissible. It is probable that the expression “personal knowledge” in Rule 80 4(b)(4) is being used in the sense of “first hand knowledge” while the expression is being used in Rule 602 in a somewhat broader sense to include those matters which an individual could be con- sidered to reliably know about his or her personal history. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 603 Oath or affirmation to testify truthfully Rule 603 is taken from the Federal Rule without change. The A22-53 App. 22, M.R.E. 603ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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oaths found within Chapter XXII of the Manual satisfy the re- quirements of Rule 603. Pursuant to Rule 1101(c), this Rule is inapplicable to the accused when he or she makes an unsworn statement. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 604 Interpreter Rule 604 is taken from the Federal Rule without change and is consistent with Para. 141, MCM, 1969 (Rev.). The oath found in Paras. 114 e, MCM, 1969 (Rev.) (now R.C.M. 807(b)(2) (Discus- sion), MCM, 1984), satisfies the oath requirements of Rule 604. 2013 Amendment. This rule was revised to match the Federal Rules of Evidence. However, the word “qualified” is undefined both in these rules and in the Federal Rules of Evidence. R.C.M. 502(e)(1) states that the Secretary concerned may prescribe quali- fications for interpreters. Practitioners should therefore refer to the Secretary’s guidance to determine if an interpreter is qualified under this rule. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 605 Military judge’s competency as a witness R u l e 6 0 5 ( a ) r e s t a t e s t h e F e d e r a l R u l e w i t h o u t s i g n i f i c a n t change. Although Article 26(d) of the Uniform Code of Military Justice states in relevant part that “no person is eligible to act as a military judge if he is a witness for the prosecution ...” and is silent on whether a witness for the defense is eligible to sit, the Committee believes that the specific reference in the code was not intended to create a right and was the result only of an attempt to highlight the more grievous case. In any event, Rule 605, unlike Article 26(d), does not deal with the question of eligibility to sit as a military judge, but deals solely with the military judge’s competency as a witness. The rule does not affect voir dire. Rule 605(b) is new and is not found within the Federal Rules of Evidence. It was added because of the unique nature of the military judiciary in which military judges often control their own dockets without clerical assistance. In view of the military’s strin- g e n t s p e e d y t r i a l r o l e s , s e e , U n i t e d S t a t e s v . B u r t o n , 2 1 U.S.C.M.A 112, 44 C.M.R. 166 (1971), it was necessary to pre- clude expressly any interpretation of Rule 605 that would prohibit the military judge from placing on the record details relating to docketing in order to avoid prejudice to a party. Rule 605(b) is consistent with present military law. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 606 Member’s competency as a witness (a) At the court-martial. Rule 606(a) is taken from the Federal Rule without substantive change. The Rule alters prior military law only to the extent that a member of the court could testify as a defense witness under prior precedent. Rule 606(a) deals only with the competency of court members as witnesses and does not affect other Manual provisions governing the eligibility of the individuals to sit as members due to their potential status as witnesses.See, e.g., Paras. 62 f and 63, MCM, 1969 (Rev.). The Rule does not affect voir dire. (b) Inquiry into validity of findings or sentence. Rule 606(b) is taken from the Federal Rule with only one significant change. The rule, retitled to reflect the sentencing function of members, recognizes unlawful command influence as a legitimate subject of inquiry and permits testimony by a member on that subject. The addition is required by the need to keep proceedings free from any taint of unlawful command influence and further implements Article 37(a) of the Uniform Code of Military Justice. Use of superior rank or grade by one member of a court to sway other members would constitute unlawful command influence for pur- poses of this Rule under Para. 74 d(1), MCM, 1969 (Rev.). Rule 606 does not itself prevent otherwise lawful polling of members of the court, see generally, United States v. Hendon , 6 M.J. 171, 174 (C.M.A. 1979), and does not prohibit attempted lawful clari- fication of an ambiguous or inconsistent verdict. Rule 606(b) is in general accord with prior military law. 2013 Amendment. The amendment to subsection (b) aligns this rule with the Federal Rules of Evidence. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 607 Who may impeach a witness Rule 607 is taken without significant change from the Federal Rule. It supersedes Para. 153 b(1), MCM, 1969 (Rev.), which restricted impeachment of one’s own witness to those situations in which the witness is indispensable or the testimony of the witness proves to be unexpectedly adverse. Rule 607 thus allows a party to impeach its own witness. Indeed, when relevant, it permits a party to call a witness for the sole purpose of impeachment. It should be noted, however, that an apparent inconsistency exists when Rule 607 is compared with Rules 608(b) and 609(a). Although Rule 607 allows impeachment on direct examination, Rules 608(b) and 609(a) would by their explicit language restrict the methods of impeachment to cross- examination. The use of the expression “cross-examination” in these rules appears to be accidental and to have been intended to be synonymous with impeachment while on direct examination. See generally S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 298–99 (2d ed. 1977). It is the intent of the Committee that the Rules be so interpreted unless the Article III courts should interpret the Rules in a different fashion. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 608 A witness’s character for truthfulness or untruthfulness (a) Opinion and reputation evidence of character. Rule 608(a) is taken verbatim from the Federal Rule. The Rule, which is consis- tent with the philosophy behind Rule 404(a), limits use of charac- ter evidence in the form of opinion or reputation evidence on the issue of credibility by restricting such evidence to matters relating to the character for truthfulness or untruthfulness of the witness. General good character is not admissible under the Rule. Rule 60 8(a) prohibits presenting evidence of good character until the character of the witness for truthfulness has been attacked. The A22-54 App. 22, M.R.E. 603 APPENDIX 22
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Rule is similar to Para. 153 b of the 1969 Manual except that the Rule, unlike Para. 153 b, applies to all witnesses and does not distinguish between the accused and other witnesses. (b) Specific instances of conduct. Rule 608(b) is taken from the Federal Rule without significant change. The Rule is somewhat similar in effect to the military practice found in Para. 153 b(2) of the 1969 Manual in that it allows use of specific instances of conduct of a witness to be brought out on cross-examination but prohibits use of extrinsic evidence. Unlike Para. 153 b(2), Rule 608(b) does not distinguish between an accused and other wit- nesses. The fact that the accused is subject to impeachment by prior acts of misconduct is a significant factor to be considered by the military judge when he or she is determining whether to exercise the discretion granted by the Rule. Although the Rule expressly limits this form of impeachment to inquiry on cross-examination, it is likely that the intent of the Federal Rule was to permit inquiry on direct as well, see Rule 607, and the use of the term “cross-examination” was an accidental substitute for “impeach- ment.” See S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 312–13 (2d ed. 1977). It is the intent of the Committee to allow use of this form of evidence on direct examination to the same extent, if any, it is so permitted in the Article III courts. The Rule does not prohibit receipt of extrinsic evidence in the form of prior convictions, Rule 609, or to show bias. Rule 608(c). See also Rule 613 (Prior statements of witnesses). When the witness has testified as to the character of another witness, the witness may be cross-examined as to the character of that wit- ness. The remainder of Rule 608(b) indicates that testimony relat- ing only to credibility does not waive the privilege against self- incrimination. See generally Rule 301. Although 608(b) allows examination into specific acts, counsel should not, as a matter of ethics, attempt to elicit evidence of misconduct unless there is a reasonable basis for the question. See generally ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO THE PROSECUTION F U N C T I O N A N D T H E D E F E N S E F U N C T I O N , P r o s e c u t i o n Function 5.7(d); Defense Functions 7.6(d) (Approved draft 1971). (c) Evidence of bias. Rule 608(c) is taken from 1969 Manual Para. 153 d and is not found within the Federal Rule. Impeach- ment by bias was apparently accidentally omitted from the Fed- eral Rule, see S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 313–14 (2d ed. 1977), but is acceptable under the Federal Rules; see, e.g., United States v. Leja , 568 F.2d 493 (6th Cir. 1977); United States v. Alvarez-Lopez , 559 F.2d 1155 (9th Cir. 1977). Because of the critical nature of this form of impeachment and the fact that extrinsic evidence may be used to show it, the Committee believed that its omission would be impracticable. It should be noted that the Federal Rules are not exhaustive, and that a number of different types of techniques of impeach- ment are not explicitly codified. The failure to so codify them does not mean that they are no longer permissible. See, e.g., United states v. Alvarez-Lopez , supra 155; Rule 412. Thus, impeachment by contradiction, see also Rule 304(a)(2); 311(j), and impeachment via prior inconsis- tent statements, Rule 613, remain appropriate. To the extent that the Military Rules do not acknowledge a particular form of im- peachment, it is the intent of the Committee to allow that method to the same extent it is permissible in the Article III courts. See, e.g., Rules 402; 403. Impeachment of an alleged victim of a sexual offense through evidence of the victim’s past sexual history and character is dealt with in Rule 412, and evidence of fresh complaint is admissible to the extent permitted by Rules 801 and 803. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 609 Impeachment by evidence of a criminal conviction (a) General Rules. Rule 609(a) is taken from the Federal Rule but has been slightly modified to adopt it to military law. For example, an offense for which a dishonorable discharge may be adjudged may be used for impeachment. This continues the rule as found in Para. 153 b(2)(b)(1) of the 1969 Manual. In determin- ing whether a military offense may be used for purposes of impeachment under Rule 609(a)(1), recourse must be made to the maximum punishment imposable if the offense had been tried by general court-martial. Rule 609(a) differs slightly from the prior military rule. Under Rule 609(a)(1), a civilian conviction’s availability for impeach- ment is solely a function of its maximum punishment under “the law in which the witness was convicted.” This is different from Para. 153 b(2)(b)(3) of the 1969 Manual which allowed use of a non-federal conviction analogous to a federal felony or character- ized by the jurisdiction as a felony or “as an offense of compara- ble gravity.” Under the new rule, comparisons and determinations of relative gravity will be unnecessary and improper. Convictions that “involve moral turpitude or otherwise affect . . . credibility” were admissible for impeachment under Para. 153 b(2)(b) of the 1969 Manual. The list of potential convictions expressed in Para. 153 b(2)(b) was illustrative only and non- exhaustive. Unlike the 1969 Manual rule, Rule 609(a) is exhaus- tive. Although a conviction technically fits within Rule 609(a)(1), its admissibility remains subject to finding by the military judge that its probative value outweighs its prejudicial effect to the accused. R u l e 6 0 9 ( a ) ( 2 ) m a k e s a d m i s s i b l e c o n v i c t i o n s i n v o l v i n g “dishonesty or false statement, regardless of punishment.” This is similar to intent in Para. 153 b(2)(b)(4) of the 1969 Manual which makes admissible “a conviction of any offense involving fraud, deceit, larceny, wrongful appropriation, or the making of false statement.” The exact meaning of “dishonesty” within the mean- ing of Rule 609 is unclear and has already been the subject of substantial litigation. The Congressional intent appears, however, to have been extremely restrictive with “dishonesty” being used in the sense of untruthfulness. See generally S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 336–45 (2d ed. 1977). Thus, a conviction for fraud, perjury, or embezzle- ment would come within the definition, but a conviction for simple larceny would not. Pending further case development in the Article III courts, caution would suggest close adherence to this highly limited definition. It should be noted that admissibility of evidence within the A22-55 App. 22, M.R.E. 609(a)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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scope of Rule 609(a)(2) is not explicitly subject to the discretion of the military judge. The application of Rule 403 is unclear. While the language of Rule 609(a) refers only to cross-exami- nation, it would appear that the Rule does refer to direct examina- tion as well. See the Analysis to Rules 607 and 608(b). As defined in Rule 609(f), a court-martial conviction occurs when a sentence has been adjudged. 1993 Amendment. The amendment to Mil. R. Evid. 609(a) is based on the 1990 amendment to Fed. R. Evid. 609(a). The previous version of Mil. R. Evid. 609(a) was based on the now superseded version of the Federal Rule. This amendment removes from the rule the limitation that the conviction may only be elicited during cross-examination. Additionally, the amendment clarifies the relationship between Rules 403 and 609. The amend- ment clarifies that the special balancing test found in Mil. R. Evid. 609(a)(1) applies to the accused’s convictions. The convic- tions of all other witnesses are only subject to the Mil. R. Evid. 403 balancing test. See Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989). 2012 Amendment: Rule 609(a) was amended to conform to the Federal Rule by replacing the word “credibility” with the words “character for truthfulness.” Rule 609(a)(2) was amended to con- form to the Federal Rule. (b) Time limit. Rule 609(b) is taken verbatim from the Federal Rule. As it has already been made applicable to the armed forces, United States v. Weaver , 1 M.J. 111 (C.M.A. 1975), it is consis- tent with the present military practice. (c) Effect of pardon, annulment, or certificate of rehabilitation. Rule 609(c) is taken verbatim from the Federal Rule except that convictions punishable by dishonorable discharge have been ad- ded. Rule 609(c) has no equivalent in present military practice and represents a substantial change as it will prohibit use of convictions due to evidence of rehabilitation. In the absence of a certificate of rehabilitation, the extent to which the various Armed Forces post-conviction programs, such as the Air Force’s 3320th Correction and Rehabilitation Squadron and the Army’s Retrain- ing Brigade, come within Rule 609(c) is unclear, although it is probable that successful completion of such a program is “an equivalent procedure based on the finding of the rehabilitation of the persons convicted” within the meaning of the Rule. 2012 Amendment: Rule 609(c) was amended to conform to the Federal Rule. (d) Juvenile adjudications. Rule 609(d) is taken from the Federal Rule without significant change. The general prohibition in the Rule is substantially different from Para. 153 b(2)(b) of the 1969 Manual which allowed use of juvenile adjudications other than those involving an accused. The discretionary authority vested in the military judge to admit such evidence comports with the accused’s constitutional right to a fair trial. Davis v. Alaska, 415 U.S. 308 (1974). (e) Pendency of appeal. The first portion of Rule 609(e) is taken from the Federal Rule and is substantially different from Para. 153 b(2)(b) of the 1969 Manual which prohibited use of convic- tions for impeachment purposes while they were undergoing ap- pellate review. Under the Rule, the fact of review may be shown but does not affect admissibility. A different rule applies, howev- er, for convictions by summary court-martial or by special court- martial without a military judge. The Committee believed that because a legally trained presiding officer is not required in these proceedings, a conviction should not be used for impeachment until review has been completed. February 1986 Amendment: The reference in subsection (e) to “Article 65(c)” was changed to “Article 64” to correct an error in MCM, 1984. (f) Definition. This definition of conviction has been added be- cause of the unique nature of the court-martial. Because of its recognition that a conviction cannot result until at least sentenc- ing, cf. Frederic Lederer, Reappraising the Legality of Post-trial Interviews, 1977 Army Law. 1, 12, the Rule may modify United States v. Mathews, 6 M.J. 357 (C.M.A. 1979). 2011 Amendment. Executive Order 13593 of December 13, 2011, amended this rule to conform the rule with the Federal Rules of Evidence. 2013 Amendment. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 610 Religious beliefs or opinions Rule 610 is taken without significant change from the Federal Rules and had no equivalent in the 1969 Manual for Courts- Martial. The Rule makes religious beliefs or opinions inadmissi- ble for the purpose of impeaching or bolstering credibility. To the extent that such opinions may be critical to the defense of a case, however, there may be constitutional justification for overcoming the Rule’s exclusion. Cf.Davis v. Alaska , 415 U.S. 308 (1974). 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 611 Mode and order of examining witnesses and presenting evidence (a) Control by the military judge. Rule 611(a) is taken from the Federal Rule without change. It is a basic source of the military judge’s power to control proceedings and replaces 1969 Manual Para. 149 a and that part of Para. 137 dealing with cumulative evidence. It is within the military judge’s discretion to control methods of interrogation of witnesses. The Rule does not change prior law. Although a witness may be required to limit an answer to the question asked, it will normally be improper to require that a “yes” or “no” answer be given unless it is clear that such an answer will be a complete response to the question. A witness will ordinarily be entitled to explain his or her testimony at some time before completing this testimony. The Manual requirement that questions be asked through the military judge is now found in Rule 614. Although the military judge has the discretion to alter the sequence of proof to the extent that the burden of proof is not affected, the usual sequence for examination of witnesses is: pros- ecution witnesses, defense witnesses, prosecution rebuttal wit- nesses, defense rebuttal witnesses, and witnesses for the court. The usual order of examination of a witness is: direct examina- t i o n , c r o s s - e x a m i n a t i o n , r e d i r e c t e x a m i n a t i o n , r e c r o s s - e x a m i n a - tion, and examination by the court. Para. 54 a, MCM, 1969 (Rev.). 1995 Amendment: When a child witness is unable to testify due to intimidation by the proceedings, fear of the accused, emotional trauma, or mental or other infirmity, alternative to live in-court testimony may be appropriate. See Maryland v. Craig , 497 U.S. A22-56 App. 22, M.R.E. 609(a) APPENDIX 22
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836 (1990); United States v. Romey , 32 M.J. 180 (C.M.A.), cert. denied, 502 U.S. 924 (1991); United States v. Batten , 31 M.J. 205 (C.M.A. 1990); United States v. Thompson , 31 M.J. 168 (C.M.A. 1990), cert. denied , 111 S. Ct. 956 (1991). This is an evolving area of law with guidance available in case law. The drafters, after specifically considering adoption of 18 U.S.C. § 3509, deter- mined it more appropriate to allow the case law evolutionary process to continue. (b) Scope of cross-examination. Rule 611(b) is taken from the Federal Rule without change and replaces Para. 149 b(1) of the 1969 Manual which was similar in scope. Under the Rule the military judge may allow a party to adopt a witness and proceed as if on direct examination. See Rule 301(b)(2) (judicial advice as to the privilege against self-incrimination for an apparently unin- formed witness); Rule 301(f)(2) (effect of claiming the privilege against self-incrimination on cross-examination); Rule 303 (De- g r a d i n g Q u e s t i o n s ) ; a n d R u l e 6 0 8 ( b ) ( E v i d e n c e o f C h a r a c t e r , Conduct, and Bias of Witness). (c) Leading questions. Rule 611(c) is taken from the Federal Rule without significant change and is similar to Para. 149 c of the 1969 Manual. The reference in the third sentence of the Federal Rule to an “adverse party” has been deleted as being applicable to civil cases only. A leading question is one which suggests the answer it is desired that the witness give. Generally, a question that is suscep- tible to being answered by “yes” or “no” is a leading question. The use of leading questions is discretionary with the military judge. Use of leading questions may be appropriate with respect to the following witnesses, among others: children, persons with mental or physical disabilities, the extremely elderly, hostile wit- nesses, and witnesses identified with the adverse party. It is also appropriate with the military judge’s consent to utilize leading questions to direct a witness’s attention to a relevant area of inquiry. 1999 Amendment: Rule 611(d) is new. This amendment to Rule 611 gives substantive guidance to military judges regarding the use of alternative examination methods for child victims and witnesses in light of the U.S. Supreme Court’s decision in Mary- land v. Craig , 497 U.S. 836 (1990) and the change in Federal law in 18 U.S.C. § 3509. Although Maryland v. Craig dealt with child witnesses who were themselves the victims of abuse, it should be noted that 18 U.S.C. § 3509, as construed by Federal courts, has been applied to allow non-victim child witnesses to testify re- motely. See, e.g., United States v. Moses , 137 F.3d 894 (6th Cir. 1998) (applying § 3509 to a non-victim child witness, but revers- ing a child sexual assault conviction on other grounds) and United States v. Quintero , 21 F.3d 885 (9th Cir. 1994) (affirming convic- tion based on remote testimony of non-victim child witness, but r e m a n d i n g f o r r e s e n t e n c i n g ) . T h i s a m e n d m e n t r e c o g n i z e s t h a t child witnesses may be particularly traumatized, even if they are not themselves the direct victims, in cases involving the abuse of other children or domestic violence. This amendment also gives the accused an election to absent himself from the courtroom to prevent remote testimony. Such a provision gives the accused a greater role in determining how this issue will be resolved. 2013 Amendment. The amendment to subsection (d)(3) con- forms the rule with the United States Supreme Court’s holding in Maryland v. Craig , 497 U.S. 836 (1990), and the Court of Ap- peals for the Armed Forces’ holding in United States v. Pack , 65 M.J. 381 (C.A.A.F. 2007). In Craig, the Supreme Court held that, in order for a child witness to be permitted to testify via closed- circuit one-way video, three factors must be met: (1) the trial court must determine that it “is necessary to protect the welfare of the particular child witness”; (2) the trial court must find “that the child witness would be traumatized, not by the courtroom gener- ally, but by the presence of the defendant”; and (3) the trial court must find “that the emotional distress suffered by the child wit- ness in the presence of the defendant is more than de minimis .” Craig, 497 U.S. at 855-56. In Pack, CAAF held that, despite the S u p r e m e C o u r t ’ s d e c i s i o n i n C r a w f o r d v . W a s h i n g t o n , t h e Supreme Court did not implicitly overrule Craig and that all three factors must be present in order to permit a child witness to testify remotely. Pack, 65 M.J. at 384-85. This rule as previously written contradicted these cases because it stated that any one of four factors, rather than all three of those identified in Craig, would be sufficient to allow a child to testify remotely. The changes ensured that this subsection aligned with the relevant case law. The drafters took the language for the change to subsection (5) from 18 U.S.C. § 3509(b)(1)(C), which covers child victims’ and child witnesses’ rights. There is no comparable Federal Rule of Evidence but a military judge may find that an Article 39(a) session outside the presence of the accused is necessary to make a decision regarding remote testimony. The drafters of the change intended to limit the number of people present at the Article 39(a) session in order to make the child feel more at ease, which is why they recommended adding language limiting those present to “a representative” of the defense and prosecution, rather than multi- ple representatives. This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 612 Writing used to refresh a witness’s memory Rule 612 is taken generally from the Federal Rule but a num- ber of modifications have been made to adapt the Rule to military practice. Language in the Federal Rule relating to the Jencks Act, 18 U.S.C. § 3500, which would have shielded material from disclosure to the defense under Rule 612 was discarded. Such shielding was considered to be inappropriate in view of the gen- eral military practice and policy which utilizes and encourages broad discovery on behalf of the defense. The decision of the president of a special court-martial without a military judge under this rule is an interlocutory ruling not subject to objection by the members, Para. 57 a, MCM, 1969 (Rev.). Rule 612 codifies the doctrine of past recollection refreshed and replaces that portion of Para. 146 a of the 1969 Manual which dealt with the issue. Although the 1969 Manual rule was similar, in that it authorized inspection by the opposing party of a memo- randum used to refresh recollection and permitted it to be offered i n t o e v i d e n c e b y t h a t p a r t y t o s h o w t h e i m p r o b a b i l i t y o f i t refreshing recollection, the Rule is somewhat more extensive as it also deals with writings used before testifying. Rule 612 does not affect in any way information required to be disclosed under any other rule or portion of the Manual. See, Rule 304(c)(1). 2013 Amendment. The revision to Subsection (b) of this rule is A22-57 App. 22, M.R.E. 612ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 613 Witness’s prior statement (a) Examining witness concerning prior statement. Rule 613(a) is taken from the Federal Rule without change. It alters military practice inasmuch as it eliminates the foundation requirements found in Para. 153 b(2)(c) of the 1969 Manual. While it will no longer be a condition precedent to admissibility to acquaint a witness with the prior statement and to give the witness an oppor- tunity to either change his or her testimony or to reaffirm it, such a procedure may be appropriate as a matter of trial tactics. It appears that the drafters of Federal Rule 613 may have inadvertently omitted the word “inconsistent” from both its cap- tion and the text of Rule 613(a). The effect of that omission, if any, is unclear. (b) Extrinsic evidence of prior inconsistent statement of witness. Rule 613(b) is taken from the Federal Rule without change. It requires that the witness be given an opportunity to explain or deny a prior inconsistent statement when the party proffers extrin- sic evidence of the statement. Although this foundation is not required under Rule 613(a), it is required under Rule 613(b) if a party wishes to utilize more than the witness’ own testimony as brought out on cross-examination. The Rule does not specify any particular timing for the opportunity for the witness to explain or deny the statement nor does it specify any particular method. The Rule is inapplicable to introduction of prior inconsistent state- ments on the merits under Rule 801. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 614 Court-martial’s calling or examining a witness ( a ) C a l l i n g b y t h e c o u r t - m a r t i a l . T h e f i r s t s e n t e n c e o f R u l e 614(a) is taken from the Federal Rule but has been modified to recognize the power of the court members to call and examine witnesses. The second sentence of the subdivision is new and reflects the members’ power to call or recall witnesses. Although recognizing that power, the Rule makes it clear that the calling of such witnesses is contingent upon compliance with these Rules and this Manual. Consequently, the testimony of such witnesses must be relevant and not barred by any Rule or Manual provision. (b) Interrogation by the court-martial. The first sentence of Rule 614(b) is taken from the Federal Rule but modified to reflect the power under these Rules and Manual of the court-members to interrogate witnesses. The second sentence of the subdivision is new and modifies Para. 54 a and Para. 149 a of the present manual by requiring that questions of members be submitted to the mili- tary judge in writing. This change in current practice was made in order to improve efficiency and to prevent prejudice to either party. Although the Rule states that its intent is to ensure that the questions will “be in a form acceptable to the military judge,” it is not the intent of the Committee to grant carte blanche to the military judge in this matter. It is the Committee’s intent that the president will utilize the same procedure. (c) Objections. Rule 614(c) is taken from the Federal Rule but modified to reflect the powers of the members to call and interro- gate witnesses. This provision generally restates prior law but recognizes counsel’s right to request an Article 39(a) session to enter an objection. 2013 Amendment. In subsection (a), the word “relevant” was s u b s t i t u t e d f o r “ a p p r o p r i a t e . ” R e l e v a n c e i s t h e m o s t a c c u r a t e threshold for admissibility throughout these rules. Additionally, the phrase “Following the opportunity for review by both parties” was added to subsection (b); this change aligns it with the stand- ard military practice to allow the counsel for both sides to review a question posed by the members and to voice objections before the military judge rules on the propriety of the question. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 615 Excluding witnesses Rule 615 is taken from the Federal Rule with only minor changes of terminology. The first portion of the Rule is in con- formity with prior practice, e.g., Para. 53 f, MCM, 1969 (Rev.). The second portion, consisting of subdivisions (2) and (3), repre- sents a substantial departure from prior practice and will authorize the prosecution to designate another individual to sit with the trial counsel. Rule 615 thus modifies Para. 53 f. Under the Rule, the military judge lacks any discretion to exclude potential witnesses who come within the scope of Rule 615(2) and (3) unless the accused’s constitutional right to a fair trial would be violated. Developing Article III practice recognizes the defense right, upon request, to have a prosecution witness, not excluded because of Rule 615, testify before other prosecution witnesses. Rule 615 does not prohibit exclusion of either accused or counsel due to misbehavior when such exclusion is not prohibited by the Constitution of the United States, the Uniform Code of Military Justice, this Manual, or these Rules. 2002 Amendment: These changes are intended to extend to victims at courts-martial the same rights granted to victims by the Victims’ Rights and Restitution Act of 1990, 42 U.S.C. § 1060 6(b)(4), giving crime victims “[t]he right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially af- fected if the victim heard other testimony at trial,” and the Victim Rights Clarification Act of 1997, 18 U.S.C. § 3510, which is restated in subsection (5). For the purposes of this rule, the term “victim” includes all persons defined as victims in 42 U.S.C. § 10 607(e)(2), which means “a person that has suffered direct physi- cal, emotional, or pecuniary harm as a result of the commission of a crime, including”—(A) in the case of a victim that is an institutional entity, an authorized representative of the entity; and (B) in the case of a victim who is under 18 years of age, incom- petent, incapacitated, or deceased, one of the following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v) a sibling; (vi) another family member; or (vii) another person designated by the court. The victim’s right to remain in the courtroom remains subject to other rules, such as those regarding classified information, witness deportment, and conduct in the courtroom. Subsection (4) is intended to capture only those statutes applicable to courts-martial. 2013 Amendment. This revision is stylistic. The drafters had no A22-58 App. 22, M.R.E. 612 APPENDIX 22
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intent to change any result in any ruling on evidence admissibili- ty. 2015 Amendment : Rule 615(e) was revised to implement Sec- tion 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013. SECTION VII OPINIONS AND EXPERT TESTIMONY Rule 701 Opinion testimony by lay witnesses Rule 701 is taken from the Federal Rule without change and supersedes that portion of Para. 138 e, MCM, 1969 (Rev.), which dealt with opinion evidence by lay witnesses. Unlike the prior Manual rule which prohibited lay opinion testimony except when the opinion was of a “kind which is commonly drawn and which cannot, or ordinarily cannot, be conveyed to the court by a mere recitation of the observed facts,” the Rule permits opinions or inferences whenever rationally based on the perception of the witness and helpful to either a clear understanding of the testi- mony or the determination of a fact in issue. Consequently, the Rule is broader in scope than the Manual provision it replaces. The specific examples listed in the Manual, “the speed of an automobile, whether a voice heard was that of a man, woman or child, and whether or not a person was drunk” are all within the potential scope of Rule 701. 2004 Amendment: Rule 701 was modified based on the amend- ment to Fed. R. Evid. 701, effective 1 December 2000, and is taken from the Federal Rule without change. It prevents parties from proffering an expert as a lay witness in an attempt to evade the gatekeeper and reliability requirements of Rule 702 by provid- ing that testimony cannot qualify under Rule 701 if it is based on “scientific, technical, or other special knowledge within the scope of Rule 702.” 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 702 Testimony by expert witnesses Rule 702 is taken from the Federal Rule verbatim, and replaces that portion of Para. 138 e, MCM, 1969 (Rev.), dealing with expert testimony. Although the Rule is similar to the prior Man- ual rule, it may be broader and may supersede Frye v. United States, 293 F.1013 (C.D. Cir. 1923), an issue now being exten- sively litigated in the Article III courts. The Rule’s sole explicit test is whether the evidence in question “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Whether any particular piece of evidence comes within the test is normally a matter within the military judge’s discretion. Under Rule 103(a) any objection to an expert on the basis that the individual is not in fact adequately qualified under the Rule will be waived by a failure to so object. Para. 142 e of the 1969 Manual, “Polygraph tests and drug- induced or hypnosis-induced interviews,” has been deleted as a result of the adoption of Rule 702. Para. 142 e states, “The conclusions based upon or graphically represented by a polygraph test and conclusions based upon, and the statements of the person interviewed made during a drug-induced or hypnosis-induced in- terview are inadmissible in evidence.” The deletion of the explicit prohibition on such evidence is not intended to make such evi- dence per se admissible, and is not an express authorization for such procedures. Clearly, such evidence must be approached with great care. Considerations surrounding the nature of such evi- dence, any possible prejudicial effect on a fact finder, and the degree of acceptance of such evidence in the Article III courts are factors to consider in determining whether it can in fact “assist the trier of fact.” As of late 1979, the Committee was unaware of any significant decision by a United States Court of Appeals sustaining the admissibility of polygraph evidence in a criminal case, see e.g., United States v. Masri , 547 F.2d 932 (5th Cir. 1977); United States v. Cardarella , 570 F.2d 264 (8th Cir. 1978), although the Seventh Circuit, see e.g., United States v. Bursten , 560 F.2d 779 (7th Cir. 1977) (holding that polygraph admissibil- ity is within the sound discretion of the trial judge) and perhaps the Ninth Circuit, United States v. Benveniste , 564 F.2d 335, 339 n.3 (9th Cir. 1977), at least recognize the possible admissibility of such evidence. There is reason to believe that evidence obtained via hypnosis may be treated somewhat more liberally than is polygraph evidence. See, e.g., Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975). 2004 Amendment: Rule 702 was modified based on the amend- ment to Fed. R. Evid. 702, effective 1 December 2000, and is taken from the Federal Rule without change. It provides guidance for courts and parties as to the factors to consider in determining whether an expert’s testimony is reliable in light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (holding that gatekeeper function applies to all expert testimony, not just testi- mony based on science). 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 703 Bases of an expert’s opinion testimony Rule 703 is taken from the Federal Rule without change. The Rule is similar in scope to Para. 138 e of the 1969 Manual, but is potentially broader as it allows reliance upon “facts or data” whereas the 1969 Manual’s limitation was phrased in terms of the personal observation, personal examination or study, or examina- tion or study “of reports of others of a kind customarily consid- e r e d i n t h e p r a c t i c e o f t h e e x p e r t ’ s s p e c i a l t y . ” H y p o t h e t i c a l questions of the expert are not required by the Rule. A limiting instruction may be appropriate if the expert while expressing the basis for an opinion states facts or data that are not themselves admissible. See Rule 105. Whether Rule 703 has modified or superseded the Frye test for scientific evidence, Frye v. United States , 293 F.1013 (D.C. Cir. 1923), is unclear and is now being litigated within the Article III courts. 2004 Amendment: Rule 703 was modified based on the amend- ment to Fed. R. Evid. 703, effective 1 December 2000, and is virtually identical to its Federal Rule counterpart. It limits the disclosure to the members of inadmissible information that is used as the basis of an expert’s opinion. Compare Mil. R. Evid. 705. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to A22-59 App. 22, M.R.E. 703ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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change any result in any ruling on evidence admissibility. Rule 704 Opinion on ultimate issue Rule 704 is taken from the Federal Rule verbatim. The 1969 Manual for Courts-Martial was silent on the issue. The Rule does not permit the witness to testify as to his or her opinion as to the guilt or innocence of the accused or to state legal opinions. Rather it simply allows testimony involving an issue which must be decided by the trier of fact. Although the two may be closely related, they are distinct as a matter of law. February 1986 Amendment: Fed. R. Evid. 704(b), by opera- tion of Mil. R. Evid. 1102, became effective in the military as Mil. R. Evid. 704(b) on 10 April 1985. The Joint-Service Com- mittee on Military Justice considers Fed. R. Evid. 704(b) an integral part of the Insanity Defense Reform Act, ch. IV, Pub.L. No. 98–473, 98 Stat. 2067–68 (1984), (hereafter the Act). Be- cause proposed legislation to implement these provisions of the Act relating to insanity as an affirmative defense had not yet been enacted in the UCMJ by the date of this Executive Order, the Committee recommended that the President rescind the applica- tion of Fed. R. Evid. 704(b) to the military. Even though in effect since 10 April 1985, this change was never published in the Manual. 1986 Amendment: While writing the Manual provisions to im- plement the enactment of Article 50a, UCMJ (“Military Justice Amendments of 1986,” National Defense Authorization Act for fiscal year 1987, Pub.L. No. 99–661, 100 Stat. 3905 (1986)), the drafters rejected adoption of Fed. R. Evid. 704(b). The statutory qualifications for military court members reduce the risk that military court members will be unduly influenced by the presenta- tion of ultimate opinion testimony from psychiatric experts. 2013 Amendment. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 705 Disclosing the facts or data underlying an expert’s opinion Rule 705 is taken from the Federal Rule without change and is similar in result to the requirement in Para. 138 e of the 1969 Manual that the “expert may be required, on direct or cross- examination, to specify the data upon which his opinion was based and to relate the details of his observation, examination, or study.” Unlike the 1969 Manual, Rule 705 requires disclosure on direct examination only when the military judge so requires. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 706 Court-appointed expert witnesses (a) Appointment and compensation. Rule 706(a) is the result of a complete redraft of subdivision (a) of the Federal Rule that was required to be consistent with Article 46 of the Uniform Code of Military Justice which was implemented in Paras. 115 and 116, MCM, 1969 (Rev.). Rule 706(a) states the basic rule that prosecu- tion, defense, military judge, and the court members all have equal opportunity under Article 46 to obtain expert witnesses. The second sentence of the subdivision replaces subdivision (b) of the Federal Rule which is inapplicable to the armed forces in light of Para. 116, MCM, 1969 (Rev.). (b) Disclosure of employment. Rule 706(b) is taken from Fed. R. Evid. 706(c) without change. The 1969 Manual was silent on the issue, but the subdivision should not change military practice. (c) Accused’s expert of own selection. Rule 706(c) is similar in intent to subdivision (d) of the Federal Rule and adapts that Rule to military practice. The subdivision makes it clear that the de- fense may call its own expert witnesses at its own expense with- out the necessity of recourse to Para. 116. 2013 Amendment. Former subsection (b) was removed. The authority of the military judge to tell members that he or she has called an expert witness is implicit in his or her authority to obtain the expert, and therefore the language was unnecessary. Although the language has been removed, the military judge may, in the exercise of discretion, notify the members that he or she called the expert. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 707 Polygraph Examinations Rule 707 is new and is similar to Cal. Evid. Code 351.1 (West 1988 Supp.). The Rule prohibits the use of polygraph evidence in courts-martial and is based on several policy grounds. There is a real danger that court members will be misled by polygraph evidence that “is likely to be shrouded with an aura of near infallibility.” United States v. Alexander , 526 F.2d 161, 168-69 (8th Cir. 1975). To the extent that the members accept polygraph evidence as unimpeachable or conclusive, despite cautionary in- structions from the military judge, the members “traditional re- sponsibility to collectively ascertain the facts and adjudge guilt or innocence is preempted.” Id. There is also a danger of confusion of the issues, especially when conflicting polygraph evidence diverts the members’ attention from a determination of guilt or innocence to a judgment of the validity and limitations of poly- graphs. This could result in the court-martial degenerating into a trial of the polygraph machine. State v. Grier , 300 S.E.2d 351 (N.C. 1983). Polygraph evidence also can result in a substantial waste of time when the collateral issues regarding the reliability of the particular test and qualifications of the specific polygraph examiner must be litigated in every case. Polygraph evidence places a burden on the administration of justice that outweighs the probative value of the evidence. The reliability of polygraph evi- dence has not been sufficiently established and its use at trial impinges upon the integrity of the judicial system. See People v. Kegler, 242 Cal. Rptr. 897 (Cal. Ct. App. 1987). Thus, this amendment adopts a bright-line rule that polygraph evidence is not admissible by any party to a court-martial even if stipulated to by the parties. This amendment is not intended to accept or reject United States v. Gipson , 24 M.J. 343 (C.M.A. 1987), concerning the standard for admissibility of other scientific evidence under Mil. R. Evid. 702 or the continued vitality of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Finally, subsection (b) of the rule ensures that any statements which are otherwise admissi- ble are not rendered inadmissible solely because the statements were made during a polygraph examination. 2013 Amendment. This revision is stylistic. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. A22-60 App. 22, M.R.E. 703 APPENDIX 22
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SECTION VIII HEARSAY Rule 801 Definitions that apply to this section; exclusions from hearsay (a) Statement. Rule 801(a) is taken from the Federal Rule without change and is similar to Para. 139 a of the 1969 Manual. (b) Declarant. Rule 801(b) is taken from the Federal Rule verba- tim and is the same definition used in prior military practice. (c) Hearsay. Rule 801(c) is taken from the Federal Rule verba- tim. It is similar to the 1969 Manual definition, found in Para. 139 a, which stated: “A statement which is offered in evidence to prove the truth of the matters stated therein, but which was not made by the author when a witness before the court at a hearing in which it is so offered, is hearsay.” Although the two definitions are basically identical, they actually differ sharply as a result of the Rule’s exceptions which are discussed infra. (d) Statements which are not hearsay. Rule 801(d) is taken from the Federal Rule without change and removes certain categories of evidence from the definition of hearsay. In all cases, those categories represent hearsay within the meaning of the 1969 Man- ual definition. (1) Prior statement by witness. Rule 801(d)(1) is taken from the Federal Rule without change and removes certain prior state- ments by the witness from the definition of hearsay. Under the 1969 Manual rule, an out-of-court statement not within an excep- tion to the hearsay rule and unadopted by the testifying witness, is inadmissible hearsay notwithstanding the fact that the declarant is now on the stand and able to be cross-examined, Para. 139 a; United States v. Burge , 1 M.J. 408 (C.M.A. 1976) (Cook, J., c o n c u r r i n g ) . T h e j u s t i f i c a t i o n f o r t h e 1 9 6 9 M a n u a l r u l e i s presumably the traditional view that out-of-court statements can- not be adequately tested by cross-examination because of the time differential between the making of the statement and the giving of the in-court testimony. The Federal Rules of Evidence Advisory Committee rejected this view in part believing both that later cross-examination is sufficient to ensure reliability and that earlier statements are usually preferable to later ones because of the possibility of memory loss. See generally, 4 J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE Para. 801(d)(1)(01) (1978). Rule 801(d)(1) thus not only makes an important shift in the military theory of hearsay, but also makes an important change in law by making admissible a number of types of statements that were either inadmissible or likely to be inadmissible under prior military law. Rule 801(d)(1)(A) makes admissible on the merits a statement inconsistent with the in-court testimony of the witness when the prior statement “was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” The Rule does not require that the witness have been subject to cross-examination at the earlier proceeding, but requires that the witness must have been under oath and subject to penalty of p e r j u r y . A l t h o u g h t h e d e f i n i t i o n o f “ t r i a l , h e a r i n g , o r o t h e r proceeding” is uncertain, it is apparent that the Rule was intended to include grand jury testimony and may be extremely broad in scope. See United States v. Castro-Ayon , 537 F.2d 1055 (9th Cir.), cert. denied, 429 U.S. 983 (1976) (tape recorded statements given under oath at a Border Patrol station found to be within the Rule). It should clearly apply to Article 32 hearings. The Rule does not require as a prerequisite a statement “given under oath subject to the penalty of perjury.” The mere fact that a statement was given under oath may not be sufficient. No foundation other than that indicated as a condition precedent in the Rule is ap- parently necessary to admit the statement under the Rule. But see WEINSTEIN’S EVIDENCE 801–74 (1978). Rule 801(d)(1)(B) makes admissible as substantive evidence on the merits a statement consistent with the in-court testimony of the witness and “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Unlike Rule 801(d)(1)(A), the earlier consistent state- ment need not have been made under oath or at any type of proceeding. On its face, the Rule does not require that the consis- tent statement offered have been made prior to the time the improper influence or motive arose or prior to the alleged recent fabrication. Notwithstanding this, the Supreme Court has read such a requirement into the rule. Tome v. United States , 513 U.S. 1 5 0 ( 1 9 9 5 ) ; s e e a l s o U n i t e d S t a t e s v . A l l i s o n , 4 9 M . J . 5 4 (C.A.A.F. 1998). The limitation does not, however, prevent ad- mission of a consistent statement made after an inconsistent state- m e n t b u t b e f o r e t h e i m p r o p e r i n f l u e n c e o r m o t i v e a r o s e . United States v. Scholle , 553 F.2d 1109 (8th Cir. 1977). Rule 801(d)(1)(B) provides a possible means to admit evidence of fresh complaint in prosecution of sexual offenses. Although lim- ited to circumstances in which there is a charge, for example, of recent fabrication, the Rule, when applicable, would permit not only fact of fresh complaint, as is presently possible, but also the entire portion of the consistent statement. 2016 Amendment : Rule 801(d)(1)(B)(ii) was added in accord- ance with an identical change to Federal Rule of Evidence 801(d)(1)(B). The amendment retains the requirement set forth in Tome v. United States , 513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication of improper influence or motive must have been made before the alleged fabrication or improper inference or motive arose. The amendment extends substantive effect to con- sistent statements that rebut other attacks on a witness – such as the charges of inconsistency or faulty memory. The amendment does not change the traditional and well-accepted limits on bring- ing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make a n y c o n s i s t e n t s t a t e m e n t a d m i s s i b l e t h a t w a s n o t a d m i s s i b l e previously – the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible sub- stantively as well. Under Rule 801(d)(1)(C) a statement of identification is not hearsay. The content of the statement as well as the fact of identification is admissible. The Rule must be read in conjunction A22-61 App. 22, M.R.E. 801(d)(1)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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with Rule 321 which governs the admissibility of statements of pretrial identification. (2) Admission by party opponent. Rule 801(d)(2) eliminates a number of categories of statements from the scope of the hearsay rule. Unlike those statements within the purview of Rule 80 1(d)(1), statements within the purview of Rule 801(d)(2) would have come within the exceptions to the hearsay rule as recognized in the 1969 Manual. Consequently, their “reclassification” is a matter of academic interest only. No practical differences result. The reclassification results from a belief that the adversary system impels admissibility and that reliability is not a significant factor. Rule 801(d)(2)(A) makes admissible against a party a statement made in either the party’s individual or representative capacity. This was treated as an admission or confession under Para. 140 a of the 1969 Manual, and is an exception of the prior hearsay rule. Rule 801(d)(2)(B) makes admissible “a statement of which the party has manifested the party’s adoption or belief in its truth.” This is an adoptive admission and was an exception to the prior hearsay rule. Cf. Para. 140 a(4) of the 1969 Manual. While silence may be treated as an admission on the facts of a given case, see Rule 304(h)(3) and the analysis thereto, under Rule 80 1(d)(2) that silence must have been intended by the declarant to have been an assertion. Otherwise, the statement will not be h e a r s a y w i t h i n t h e m e a n i n g o f R u l e 8 0 1 ( d ) ( 2 ) a n d w i l l presumably be admissible, if at all, as circumstantial evidence. Rule 801(d)(2)(C) makes admissible “a statement by a person authorized by the party to make a statement concerning the sub- ject.” While this was not expressly dealt with by the 1969 Manu- al, it would be admissible under prior law as an admission; Cf. Para. 140 b, utilizing agency theory. Rule 801(d)(2)(D) makes admissible “a statement by the par- ty’s agent or servant concerning a matter within the scope of the agency or employment of the agent or servant, made during the existence of the relationship.” These statements would appear to be admissible under prior law. Statements made by interpreters, as by an individual serving as a translator for a service member in a foreign nation who is, for example, attempting to consummate a drug transaction with a non-English speaking person, should be admissible under Rule 801(d)(2)(D) or Rule 801(d)(2)(C). Rule 801(d)(2)(E) makes admissible “a statement by a co- conspirator of a party during the course and in furtherance of the conspiracy.” This is similar to the military hearsay exception found in Para. 140 b of the 1969 Manual. Whether a conspiracy existed for purposes of this Rule is solely a matter for the military judge. Although this is the prevailing Article III rule, it is also the consequence of the Military Rules’ modification to Federal Rule of Evidence 104(b). Rule 801(d)(2)(E) does not address many critical procedural matters associated with the use of co-conspira- tor evidence. See generally Comment, Restructuring the Inde- p e n d e n t E v i d e n c e R e q u i r e m e n t o f t h e C o c o n s p i r a t o r H e a r s a y Exception, 127 U. Pa. L. Rev. 1439 (1979). For example, the burden of proof placed on the proponent is unclear although a preponderance appears to be the developing Article III trend. Similarly, there is substantial confusion surrounding the question of whether statements of an alleged co-conspirator may them- selves be considered by the military judge when determining whether the declarant was in fact a co-conspirator. This process, known as bootstrapping, was not permitted under prior military l a w . S e e , e . g . , U n i t e d S t a t e s v . D u f f y , 4 9 C . M . R . 2 0 8 , 2 1 0 (A.F.C.M.R. 1974); United States v. LaBossiere , 13 C.M.A. 337, 339, 32 C.M.R. 337, 339 (1962). A number of circuits have suggested that Rule 104(a) allows the use of such statements, but a t l e a s t t w o c i r c u i t s h a v e h e l d t h a t o t h e r f a c t o r s p r o h i b i t bootstrapping. United States v. James , 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979); United States v. Valen- cia, 609 F.2d 603 (2d Cir. 1979). Until such time as the Article III practice is settled, discretion would dictate that prior military law be followed and that bootstrapping not be allowed. Other procedural factors may also prove troublesome although not to the same extent as bootstrapping. For example, it appears to be appropriate for the military judge to determine the co-conspirator question in a preliminary Article 39(a) session. Although receipt of evidence “subject to later connection” or proof is legally possi- ble, the probability of serious error, likely requiring a mistrial, is apparent. Rule 801(d)(2)(E) does not appear to change what may be termed the “substantive law” relating to statements made by co- conspirators. Thus, whether a statement was made by a co-con- spirator in furtherance of a conspiracy is a question for the mili- tary judge, and a statement made by an individual after he or she was withdrawn from a conspiracy is not made “in furtherance of the conspiracy.” Official statements made by an officer—as by the commanding officer of a battalion, squadron, or ship, or by a staff officer, in an endorsement of other communication—are not excepted from the operation of the hearsay rule merely by reason of the official character of the communication or the rank or position of the officer making it. The following examples of admissibility under this Rule may be helpful: (1) A is being tried for assaulting B. The defense presents the testimony of C that just before the assault C heard B say to A that B was about to kill A with B’s knife. The testimony of C is not hearsay, for it is offered to show that A acted in self-defense because B made the statement and not to prove the truth of B’s statement. (2) A is being tried for rape of B. If B testifies at trial, the testimony of B that she had previously identified A as her atta- cker at an identification lineup would be admissible under Rule 801(d)(1)(C) to prove that it was A who raped B. (3) Private A is being tried for disobedience of a certain order given him orally by Lieutenant B. C is able to testify that he heard Lieutenant B give the order to A. This testimony, including testimony of C as to the terms of the order, would not be hearsay. (4) The accused is being tried for the larceny of clothes from a locker. A is able to testify that B told A that B saw the accused leave the quarters in which the locker was located with a bundle resembling clothes about the same time the clothes were stolen. This testimony from A would not be admissible to prove that facts stated by B. (5) The accused is being tried for wrongfully selling govern- ment clothing. A policeman is able to testify that while on duty he saw the accused go into a shop with a bundle under his arm; that he entered the shop and the accused ran away; that he was unable to catch the accused; and that thereafter the policeman asked the proprietor of the shop what the accused was doing there; and that the proprietor replied that the accused sold him some uniforms for which he paid the accused $30. Testimony by A22-62 App. 22, M.R.E. 801(d)(1) APPENDIX 22
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the policeman as to the reply of the proprietor would be hearsay if it was offered to prove the facts stated by the proprietor. The fact that the policeman was acting in the line of duty at the time the proprietor made the statement would not render the evidence admissible to prove the truth of the statement. (6) A defense witness in an assault case testifies on direct examination that the accused did not strike the alleged victim. On cross-examination by the prosecution, the witness admits that at a preliminary investigation he stated that the accused had struck the alleged victim. The testimony of the witness as to this statement will be admissible if he was under oath at the time and subject to a prosecution for perjury. 2013 Amendment. The title of subsection (d)(2) was changed from “Admission by party-opponent” to “An Opposing Party’s Statement.” This change conforms the rule with the Federal Rules of Evidence. The term “admission” is misleading because a state- ment falling under this exception need not be an admission and also need not be against the party’s interest when spoken. In recommending this change, the drafters did not intend to change any result in any ruling on evidence admissibility. Rule 802 The rule against hearsay Rule 802 is taken generally from the Federal Rule but has been modified to recognize the application of any applicable Act of Congress. Although the basic rule of inadmissibility for hearsay is identi- cal with that found in Para. 139 a of the 1969 Manual, there is a substantial change in military practice as a result of Rule 103(a). Under the 1969 Manual, hearsay was incompetent evidence and did not require an objection to be inadmissible. Under the new Rules, however, admission of hearsay will not be error unless there is an objection to the hearsay. See Rule 103(a). 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no intent to change any result in any ruling on evidence admissibility. Rule 803 Exceptions to the rule against hearsay – regardless of whether the declarant is available as a witness Rule 803 is taken generally from the Federal Rule with modifi- cations as needed for adaptation to military practice. Overall, the Rule is similar to practice under Manual Paras. 142 and 144 of the 1969 Manual. The Rule is, however, substantially more de- tailed and broader in scope than the 1969 Manual. (1) Present sense impression. Rule 803(1) is taken from the Fed- eral Rule verbatim. The exception it establishes was not recog- nized in the 1969 Manual for Courts-Martial. It is somewhat similar to a spontaneous exclamation, but does not require a startling event. A fresh complaint by a victim of a sexual offense m a y c o m e w i t h i n t h i s e x c e p t i o n d e p e n d i n g u p o n t h e circumstances. (2) Excited utterance. Rule 803(2) is taken from the Federal Rule verbatim. Although similar to Para. 142 b of the 1969 Manual with respect to spontaneous exclamations, the Rule would appear to be more lenient as it does not seem to require independent evidence that the startling event occurred. An examination of the Federal Rules of Evidence Advisory Committee Note indicates some uncertainty, however. S. Saltzburg & K. Redden, FED- ERAL RULES OF EVIDENCE MANUAL 540 (2d ed. 1977). A fresh complaint of a sexual offense may come within this excep- tion depending on the circumstances. (3) Then existing mental, emotional, or physical condition. Rule 803(3) is taken from the Federal Rule verbatim. The Rule is similar to that found in 1969 Manual Para. 142d but may be slightly more limited in that it may not permit statements by an individual to be offered to disclose the intent of another person. Fresh complaint by a victim of a sexual offense may come within this exception. (4) Statements for purposes of medical diagnosis or treatment. Rule 803(4) is taken from the Federal Rule verbatim. It is sub- stantially broader than the state of mind or body exception found in Para. 142 d of the 1969 Manual. It allows, among other matters, statements as to the cause of the medical problem pres- ented for diagnosis or treatment. Potentially, the Rule is ex- tremely broad and will permit statements made even to non- medical personnel ( e.g., members of one’s family) and on behalf of others so long as the statements are made for the purpose of diagnosis or treatment. The basis for the exception is the pre- sumption that an individual seeking relief from a medical problem has incentive to make accurate statements. See generally , 4 J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE Para. 80 4(4)(01) (1978). The admissibility under this exception of those portions of a statement not relevant to diagnosis or treatment is uncertain. Although statements made to a physician, for example, merely to enable the physician to testify, do not appear to come within the Rule, statements solicited in good faith by others in order to ensure the health of the declarant would appear to come within the Rule. Rule 803(4) may be used in an appropriate case to present evidence of fresh complaint in a sexual case. (5) Recorded recollection. Rule 803(5) is taken from the Federal Rule without change, and is similar to the present exception for past recollection recorded found in Paras. 146 a and 149 c(1)(b) of the 1969 Manual except that under the Rule the memorandum may be read but not presented to the fact finder unless offered by the adverse party. (6) Record of regularly conducted activity. Rule 803(6) is taken generally from the Federal Rule. Two modifications have been made, however, to adapt the rule to military practice. The defini- tion of “business” has been expanded to explicitly include the armed forces to ensure the continued application of this hearsay exception, and a descriptive list of documents, taken generally from 1969 Manual Para. 144 d, has been included. Although the activities of the armed forces do not constitute a profit making business, they do constitute a business within the meaning of the hearsay exception, see Para. 144 c, of the 1969 Manual, as well as a “regularly conducted activity.” The specific types of records included within the Rule are those which are normally records of regularly conducted activity within the armed forces. They are included because of their importance and because their omission from the Rule would be impracticable. The fact that a record is of a type described within subdivision does not eliminate the need for its proponent to show that the particular record comes within the Rule when the record is chal- lenged; the Rule does establish that the types of records listed are normally business records. Chain of custody receipts or documents have been included to emphasize their administrative nature. Such documents perform A22-63 App. 22, M.R.E. 803(6)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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the critical function of accounting for property obtained by the United States Government. Although they may be used as prose- cution evidence, their primary purpose is simply one of property accountability. In view of the primary administrative purpose of these matters, it was necessary to provide expressly for their admissibility as an exception to the hearsay rule in order to clearly reject the interpretation of Para. 144 d of the 1969 Manual with respect to chain of custody forms as set forth in United States v. Porter , 7 M.J. 32 (C.M.A. 1979) and United States v. Nault, 4 M.J. 318 (C.M.A. 1978) insofar as they concerned chain of custody forms. Laboratory reports have been included in recognition of the function of forensic laboratories as impartial examining centers. The report is simply a record of “regularly conducted” activity of the laboratory. See, e.g., United States v. Strangstalien , 7 M.J. 225 (C.M.A. 1979); United States v. Evans , 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972). Paragraph 144 d prevented a record “made principally with a view to prosecution, or other disciplinary or legal action” from being admitted as a business record. The fact that a record may fit within another exception, e.g., Rule 803(8), does not generally prevent it from being admissible under this subdivision although it would appear that the exclusion found in Rule 803(8)(B) for “matters observed by police officers and other personnel acting in a law enforcement capacity” prevent any such record from being admissible as a record of regularly conducted activity. Otherwise the limitation in subdivision (8) would serve no useful purpose. See also Analysis to Rule 80 3(8)(B). Rule 803(6) is generally similar to the 1969 Manual rule but is potentially broader because of its use of the expression “regularly conducted” activity in addition to “business.” It also permits re- cords of opinion which were prohibited by Para. 144 d of the 1969 Manual. Offsetting these factors is the fact that the Rule requires that the memorandum was “made at or near the time by, or from information transmitted by a person with knowledge . . ., ” but Para. 144 c of the 1969 Manual rule expressly did not require such knowledge as a condition of admissibility. 2004 Amendment: Rule 803(6) was modified based on the amendment to Fed. R. Evid. 803(6), effective 1 December 2000. It permits a foundation for business records to be made through certification to save the parties the expense and inconvenience of producing live witnesses for what is often perfunctory testimony. The Rule incorporates federal statutes that allow certification in a criminal proceeding in a court of the United States. See, e.g. , 18 U.S.C. § 3505 (Foreign records of regularly conducted activity.) The Rule does not include foreign records of regularly conducted business activity in civil cases as provided in its Federal Rule counterpart. This Rule works together with Mil. R. Evid. 902(11). 2016 Amendment : Rule 803(6)(E) was modified following the amendment to Fed. R. Evid. 803(6), effective 1 December 2014. It clarifies that if the proponent of a record has established the requirements of the exception, then the burden is on the opponent to show a lack of trustworthiness. In meeting its burden, the opponent is not necessarily required to introduce affirmative evi- dence of untrustworthiness. It is appropriate to impose the burden of proving untrustworthiness on the opponent, as the basic admis- sibility requirements are sufficient to establish a presumption that the record is reliable. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Rule 803(7) is taken verbatim from the Federal Rule. The Rule is similar to Paras. 143 a(2)(h) and 143 b(3) of the 1969 Manual. 2016 Amendment : Rule 803(7)(C) was modified following the amendment to Fed. R. Evid. 803(7), effective 1 December 2014. It clarifies that if the proponent has established the stated require- ments of the exception then the burden is on the opponent to show a lack of trustworthiness. (8) Public records and reports. Rule 803(8) has been taken gen- erally from the Federal Rule but has been slightly modified to adapt it to the military environment. Rule 803(8)(B) has been redrafted to apply to “police officers and other personnel acting in a law enforcement capacity” rather the Federal Rule’s “police officers and other law enforcement personnel.” The change was necessitated by the fact that all military personnel may act in a disciplinary capacity. Any officer, for example, regardless of as- signment, may potentially act as a military policeman. The capac- ity within which a member of the armed forces acts may be critical. The Federal Rule was also modified to include a list of records that, when made pursuant to a duty required by law, will be admissible notwithstanding the fact that they may have been made as “matters observed by police officers and other personnel acting in a law enforcement capacity.” Their inclusion is a direct result of the fact, discussed above, that military personnel may all function within a law enforcement capacity. The Committee de- termined it would be impracticable and contrary to the intent of the Rule to allow the admissibility of records which are truly administrative in nature and unrelated to the problems inherent in records prepared only for purposes of prosecution to depend upon whether the maker was at that given instant acting in a law enforcement capacity. The language involved is taken generally from Para. 144 b of the 1969 Manual. Admissibility depends upon whether the record is “a record of a fact or event if made by a person within the scope of his official duties and those duties included a duty to know or ascertain through appropriate and trustworthy channels of information the truth of the fact or event . . .” Whether any given record was obtained in such a trustworthy fashion is a question for the military judge. The explicit limitation on admissibility of records made “principally with a view to prosecution” found in Para. 144 d has been deleted. The fact that a document may be admissible under another exception to the hearsay rule, e.g., Rule 803(6), does not make it inadmissible under this subdivision. Military Rule of Evidence 803(8) raises numerous significant q u e s t i o n s . R u l e 8 0 3 ( 8 ) ( A ) e x t e n d s t o “ r e c o r d s , r e p o r t s , s t a t e - ments, or data compilations” of public offices or agencies, setting forth (A) the activities of the office or agency. The term “public office or agency” within this subdivision is defined to include any government office or agency including those of the armed forces. Within the civilian context, the definition of “public offices or agencies” is fairly clear and the line of demarcation between governmental and private action can be clearly drawn in most cases. The same may not be true within the armed forces. It is unlikely that every action taken by a servicemember is an “ac- t i v i t y ” o f t h e d e p a r t m e n t o f w h i c h h e o r s h e i s a m e m b e r . Presumably, Rule 803(8) should be restricted to activities of for- mally sanctioned instrumentalities roughly similar to civilian enti- A22-64 App. 22, M.R.E. 803(6) APPENDIX 22
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ties. For example, the activities of a squadron headquarters or a staff section would come within the definition of “office or agen- cy.” Pursuant to this rationale, there is no need to have a military regulation or directive to make a statement of a “public office or agency” under Rule 803(8)(A). However, such regulations or di- rectives might well be highly useful in establishing that a given a d m i n i s t r a t i v e m e c h a n i s m w a s i n d e e d a n “ o f f i c e o r a g e n c y ” within the meaning of the Rule. R u l e 8 0 3 ( 8 ) ( B ) e n c o m p a s s e s “ m a t t e r s o b s e r v e d p u r s u a n t t o duty imposed by law as to which matters there was a duty to report. . ..” This portion of Rule 803(8) is broader than subdivi- sion (8)(A) as it extends to far more than just the normal proce- dures of an office or agency. Perhaps because of this extent, it requires that there be a specific duty to observe and report. This duty could take the form of a statement, general order, regulation, or any competent order. The exclusion in the Federal Rule for “matters observed by police officers” was intended to prevent use of the exception for evaluative reports as the House Committee believed them to be unreliable. Because of the explicit language of the exclusion, normal statutory construction leads to the conclusion that reports which would be within Federal or Military Rule 803(8) but for the exclusion in (8)(B) are not otherwise admissible under Rule 803(6). Otherwise the inclusion of the limitation would serve virtually no purpose whatsoever. There is no contradiction be- tween the exclusion in Rule 803(8)(B) and the specific documents made admissible in Rule 803(8) (and Rule 803(6)) because those documents are not matters “observed by police officers and other personnel acting in a law enforcement capacity.” To the extent that they might be so considered, the specific language included by the Committee is expressly intended to reject the subdivision (8)(B) limitation. Note, however, that all forms of evidence not within the specific item listing of the Rule but within the (8)(B) exclusion will be admissible insofar as Rule 803(8) is concerned, whether the evidence is military or civilian in origin. A question not answered by Rule 803(8) is the extent to which a regulation or directive may circumscribe Rule 803(8). Thus, if a regulation establishes a given format or procedure for a report which is not followed, is an otherwise admissible piece of evi- dence inadmissible for lack of conformity with the regulation or directive? The Committee did not address this issue in the context of adopting the Rule. However, it would be at least logical to argue that a record not made in substantial conformity with an implementing directive is not sufficiently reliable to be admissi- ble. See Rule 403. Certainly, military case law predating the Military Rules may resolve this matter to the extent to which it is not based purely on now obsolete Manual provisions. As the modifications to subdivision (8) dealing with specific records retains the present Manual language, it is particularly likely that present case law will survive in this area. 2016 Amendment : Rule 803(8)(B) was modified following the amendment to Fed. R. Evid. 803(8)(B), effective 1 December 20 14. The amendment clarifies that if the proponent has established that the record meets the stated requirements of the exception then the burden is on the opponent to show a lack of trustworthi- ness as public records have justifiably carried a presumption of reliability. The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. A determination of untrustworthiness necessarily depends on the circumstances. (9) Records of vital statistics. Rule 803(9) is taken verbatim from the Federal Rule and had no express equivalent in the 1969 Manual. (10) Absence of public record or entry. Rule 803(10) is taken verbatim from the Federal Rules and is similar to 1969 Manual Para. 143 a(2)(g). 2016 Amendment : Rule 803(10) was modified following the amendment to Fed. R. Evid. 803(10), effective 1 December 2013. The amendment of the Federal Rules was in response to Melen- dez-Diaz v. Massachusetts , 557 U.S. 305 (2009). The Melendez- Diaz Court declared that a testimonial certificate could be admit- ted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment to Rule 803(10) is largely identical to the amend- ment to the Fed. R. Evid. 803(10) but has been modified in a manner that reflects differences in the military environment. (11-13) Records of religious organizations: Marriage, baptismal, and similar certificates: Family records. Rule 802(11)–(13) are all taken verbatim from the Federal Rules and had no express equivalents in the 1969 Manual. (14-16) Records of documents affecting an interest in property: Statements in documents affecting an interest in property; State- ments in ancient documents. Rules 803(14)–(16) are taken verba- tim from the Federal Rules and had no express equivalents in the 1969 Manual. Although intended primarily for civil cases, they all have potential importance to courts-martial. (17) Market reports, commercial publications. Rule 803(17) is taken generally from the Federal Rule. Government price lists have been added because of the degree of reliance placed upon them in military life. Although included within the general Rule, the Committee believed it inappropriate and impracticable not to clarify the matter by specific reference. The Rule is similar in scope and effect to the 1969 Manual Para. 144 f except that it lacks the Manual’s specific reference to an absence of entries. The effect, if any, of the difference is unclear. (18) Learned treatise. Rule 803(18) is taken from the Federal Rule without change. Unlike Para. 138 e of the 1969 Manual, which allowed use of such statements only for impeachment, this Rule allows substantive use on the merits of statements within treaties if relied upon in direct testimony or called to the expert’s attention on cross-examination. Such statements may not, howev- er, be given to the fact finder as exhibits. (19-20) Reputation concerning personal or family history; repu- t a t i o n c o n c e r n i n g b o u n d a r i e s o r g e n e r a l h i s t o r y . R u l e s 8 0 3(19)–(20) are taken without change from the Federal Rules and had no express equivalents in the 1969 Manual. (21) Reputation as to character. Rule 803(21) is taken from the Federal Rule without change. It is similar to Para. 138 f of the 1969 Manual in that it creates an exception to the hearsay rule for reputation evidence. “Reputation” and “community” are defined in Rule 405(d), and “community” includes a “military organiza- tion regardless of size.” Affidavits and other written statements are admissible to show character under Rule 405(c), and, when offered pursuant to that Rule, are an exception to the hearsay rule. ( 2 2 ) J u d g m e n t o r p r e v i o u s c o n v i c t i o n . R u l e 8 0 3 ( 2 2 ) i s t a k e n from the Federal Rule but has been modified to recognize convic- A22-65 App. 22, M.R.E. 803(22)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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tions of a crime punishable by a dishonorable discharge, a unique punishment not present in civilian life. See also Rule 609 and its Analysis. There is no equivalent to this Rule in military law. Although the Federal Rule is clearly applicable to criminal cases, its origi- nal intent was to allow use of a prior criminal conviction in a subsequent civil action. To the extent that it is used for criminal cases, significant constitutional issues are raised, especially if the prior conviction is a foreign one, a question almost certainly not anticipated by the Federal Rules Advisory Committee. ( 2 3 ) J u d g m e n t a s t o p e r s o n a l , f a m i l y o r g e n e r a l h i s t o r y , o r boundaries. Rule 803(23) is taken verbatim from the Federal Rule, and had no express equivalent in the 1969 Manual. Al- though intended for civil cases, it clearly has potential use in courts-martial for such matters as proof of jurisdiction. 2013 Amendment. Subsection (24), which stated: “Other Excep- tions: [Transferred to Mil. R. Evid. 807]” was removed. Practi- t i o n e r s a r e g e n e r a l l y a w a r e t h a t M i l . R . E v i d . 8 0 7 c o v e r s statements not specifically covered in this rule, and therefore the subsection was unnecessary. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters had no i n t e n t t o c h a n g e a n y r e s u l t i n a n y r u l i n g o n e v i d e n c e admissibility. Rule 804 Exceptions to the rule against hearsay – when the declarant is unavailable as a witness (a) Definition of unavailability. Subdivisions (a)(1)–(a)(5) of Rule 804 are taken from the Federal Rule without change and are generally similar to the relevant portions of Paras. 145 a and 145 b of the 1969 Manual, except that Rule 804(a)(3) provides that a witness who “testifies as to a lack of memory of the subject matter of the declarant’s statement” is unavailable. The Rule also does not distinguish between capital and non-capital cases. F e b r u a r y 1 9 8 6 A m e n d m e n t : T h e p h r a s e “ c l a i m o r l a c k o f memory” was changed to “claim of lack of memory” to correct an error in MCM, 1984. Rule 804(a)(6) is new and has been added in recognition of certain problems, such as combat operations, that are unique to the armed forces. Thus, Rule 804(a)(6) will make unavailable a witness who is unable to appear and testify in person for reason of military necessity within the meaning of Article 49(d)(2). The meaning of “military necessity” must be determined by reference to the cases construing Article 49. The expression is not intended to be a general escape clause, but must be restricted to the limited circumstances that would permit use of a deposition. (b) Hearsay exceptions (1) Former testimony. The first portion of Rule 804(b)(1) is taken from the Federal Rule with omission of the language relat- ing to civil cases. The second portion is new and has been included to clarify the extent to which those military tribunals in which a verbatim record normally is not kept come within the Rule. The first portion of Rule 804(b)(1) makes admissible former testimony when “the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Unlike Para. 145 b of the 1969 Manual, the Rule does not explicitly require that the accused, when the evidence is offered against him or her, have been “afforded at the former trial an opportunity, to be adequately represented by counsel.” Such a requirement should be read into the Rule’s condition that the party have had “oppor- tunity and similar motive.” In contrast to the 1969 Manual, the Rule does not distinguish between capital and non-capital cases. The second portion of Rule 804(b)(1) has been included to ensure that testimony from military tribunals, many of which ordinarily do not have verbatim records, will not be admissible unless such testimony is presented in the form of a verbatim record. The Committee believed substantive use of former testi- mony to be too important to be presented in the form of an incomplete statement. Investigations under Article 32 of the Uniform Code of Mili- tary Justice present a special problem. Rule 804(b)(1) requires that “the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony” at the first hearing. The “similar motive” requirement was intended pri- marily to ensure sufficient identity of issues between the two proceedings and thus to ensure an adequate interest in examina- t i o n o f t h e w i t n e s s . S e e , e . g . , J . W e i n s t e i n & M . B e r g e r , W E I N S T E I N ’ S E V I D E N C E P a r a . 8 0 4 ( b ) ( 1 ) ( ( 0 4 ) ) ( 1 9 7 8 ) . B e - cause Article 32 hearings represent a unique hybrid of prelimi- nary hearings and grand juries with features dissimilar to both, it was particularly difficult for the Committee to determine exactly how subdivision (b)(1) of the Federal Rule would apply to Article 32 hearings. The specific difficulty stems from the fact that Arti- cle 32 hearings were intended by Congress to function as discov- e r y d e v i c e s f o r t h e d e f e n s e a s w e l l a s t o r e c o m m e n d a n appropriate disposition of charges to the convening authority. Hutson v. United States , 19 U.S.C.M.A. 437, 42 C.M.R. 39 (1970 ); United States v. Samuels , 10 U.S.C.M.A. 206, 212, 27 C.M.R. 280, 286 (1959). See generally Hearing on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services , 81st Cong., 1st Sess., 997 (1949). It is thus permissible, for example, for a defense counsel to limit cross-examination of an adverse witness at an Article 32 hearing using the opportunity for discovery alone, for example, rather than impeachment. In such a case, the defense would not have the requisite “similar motive” found within Rule 804(b)(1). Notwithstanding the inherent difficulty of determining the de- fense counsel’s motive at an Article 32 hearing, the Rule is explicitly intended to prohibit use of testimony given at an Article 32 hearing unless the requisite “similar motive” was present dur- ing that hearing. It is clear that some Article 32 testimony is admissible under the Rule notwithstanding the Congressionally sanctioned discovery purpose of the Article 32 hearing. Conse- quently, one is left with the question of the extent to which the Rule actually does apply to Article 32 testimony. The only appar- ent practical solution to what is otherwise an irresolvable di- lemma is to read the Rule as permitting only Article 32 testimony preserved via a verbatim record that is not objected to as having been obtained without the requisite “similar motive.” While de- fense counsel’s assertion of his or her intent in not examining one or more witnesses or in not fully examining a specific witness is not binding upon the military judge, clearly the burden of es- tablishing admissibility under the Rule is on the prosecution and the burden so placed may be impossible to meet should the defense counsel adequately raise the issue. As a matter of good trial practice, a defense counsel who is limiting cross-examination at the Article 32 hearing because of discovery should announce A22-66 App. 22, M.R.E. 803(22) APPENDIX 22
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that intent sometime during the Article 32 hearing so that the announcement may provide early notice to all concerned and hopefully avoid the necessity for counsel to testify at the later trial. The Federal Rule was modified by the Committee to require that testimony offered under Rule 804(b)(1) which was originally “given before courts-martial, courts of inquiry, military commis- sions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32” and which is other- wise admissible under the Rule be offered in the form of a verbatim record. The modification was intended to ensure ac- curacy in view of the fact that only summarized or minimal records are required of some types of military proceedings. An Article 32 hearing is a “military tribunal.” The Rule distin- guishes between Article 32 hearings and other military tribunals in order to recognize that there are other proceedings which are considered the equivalent of Article 32 hearings for purposes of former testimony under Rule 804(b)(1). (2) Statement under belief of impending death. Rule 804(b)(2) is taken from the Federal Rule except that the language, “for any offense resulting in the death of the alleged victim,” has been added and reference to civil proceedings has been omitted. The new language has been added because there is no justification for limiting the exception only to those cases in which a homicide charge has actually been preferred. Due to the violent nature of military operations, it may be appropriate to charge a lesser in- cluded offense rather than homicide. The same justifications for the exception are applicable to lesser included offenses which are also, of course, of lesser severity. The additional language, taken from Para. 142 a, thus retains the 1969 Manual rule, modification of which was viewed as being impracticable. Rule 804(b)(2) is similar to the dying declaration exception found in Para. 142 a of the 1969 Manual, except that the Military Rule does not require that the declarant be dead. So long as the declarant is unavailable and the offense is one for homicide or other offense resulting in the death of the alleged victim, the hearsay exception may be applicable. This could, for example, result from a situation in which the accused, intending to shoot A, shoots both A and B; uttering the hearsay statement, under a belief of impending death, B dies, and although A recovers, A is unavailable to testify at trial. In a trial of the accused for killing B, A’s statement will be admissible. There is no requirement that death immediately follow the declaration, but the declaration is not admissible under this excep- tion if the declarant had a hope of recovery. The declaration may be made by spoken words or intelligible signs or may be in writing. It may be spontaneous or in response to solicitation, including leading questions. The utmost care should be exercised in weighing statements offered under this exception since they are often made under circumstances of mental and physical debility and are not subject to the usual tests of veracity. The military judge may exclude those declarations which are viewed as being unreliable. See Rule 403. A dying declaration and its maker may be contradicted and impeached in the same manner as other testimony and witnesses. Under the prior law, the fact that the deceased did not believe in a deity or in future rewards or punishments may be offered to affect the weight of a declaration offered under this Rule but does not defeat admissibility. Whether such evidence is now admissible in the light of Rule 610 is unclear. (3) Statement against interest. Rule 804(b) is taken from the Federal Rule without change, and has no express equivalent in the 1969 Manual. It has, however, been made applicable by case law, United States v. Johnson , 3 M.J. 143 (C.M.A. 1977). It makes admissible statements against a declarant’s interest, whether pecu- niary, proprietary, or penal when a reasonable person in the posi- tion of the declarant would not have made the statement unless such a person would have believed it to be true. The Rule expressly recognizes the penal interest exception and permits a statement tending to expose the declarant to criminal liability. The penal interest exception is qualified, however, when the declaration is offered to exculpate the accused by requiring the “corroborating circumstances clearly indicate the trustworthi- ness of the statement.” This requirement is applicable, for exam- ple, when a third party confesses to the offense the accused is being tried for and the accused offers the third party’s statement in evidence to exculpate the accused. The basic penal interest exception is established as a matter of constitutional law by the Supreme Court’s decision in Chambers v. Mississippi , 410 U.S. 284 (1973), which may be broader than the Rule as the case may n o t r e q u i r e e i t h e r c o r r o b o r a t i n g e v i d e n c e o r a n u n a v a i l a b l e declarant. In its present form, the Rule fails to address a particularly vexing problem—that of the declaration against penal interest which implicates the accused as well as the declarant. On the face of the Rule, such a statement should be admissible, subject to the effects, if any, of Bruton v. United States , 391 U.S. 123 (1968) and Rule 306. Notwithstanding this, there is considerable doubt as to the applicability of the Rule to such a situation. See generally 4 J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE 804–93, 804–16 (1978). Although the legislative history reflects an early desire on the part of the Federal Rules of Evidence Advisory Committee to prohibit such testimony, a provision doing so was not included in the material reviewed by Congress. Although the House included such a provision, it did so apparently in large part b a s e d u p o n a v i e w t h a t B r u t o n , s u p r a , p r o h i b i t e d s u c h statements—arguably an erroneous view of Bruton. See Bruton, supra at 128 n.3. Dutton v. Evans , 400 U.S. 74 (1970). The Conference Committee deleted the House provision, following the Senate’s desires, because it believed it inappropriate to “codify c o n s t i t u t i o n a l e v i d e n t i a r y p r i n c i p l e s . ” W E I N S T E I N ’ S E V I - DENCE at 804–16 (1978) citing CONG.REC.H 11931–32 (daily ed. Dec. 14, 1974). Thus, applicability of the hearsay exception to individuals implicating the accused may well rest only on the extent to which Bruton, supra, governs such statement. The Com- mittee intends that the Rule extend to such statements to the same extent that subdivision 804(b)(4) is held by the Article III courts to apply to such statements. (4) Statement of personal or family history. Rule 804(b)(4) of the Federal Rule is taken verbatim from the Federal Rule, and had no express equivalent in the 1969 Manual. The primary feature of Rule 803(b)(4)(A) is its application even though the “declarant had no means of acquiring personal knowledge of the matter stated.” 2013 Amendment. In subsection (b)(3)(B), the phrase “and is offered to exculpate the accused,” was left despite the fact that it is not included in the current or former versions of the Federal A22-67 App. 22, M.R.E. 804(b)(4)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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Rules of Evidence. While subsection (24) in Mil. R. Evid. 803 was not removed, subsection (5) of Mil. R. Evid. 804, which directs practitioners to the residual exception in Mil. R. Evid. 807, was not removed. Leaving subsection (5) in place avoids having to renumber the remaining subsections. Although subsection (5) is not necessary, renumbering the subsections within this rule would have a detrimental effect on legal research and also would lead to inconsistencies in numbering between these rules and the Federal Rules. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 805 Hearsay within hearsay Rule 805 is taken verbatim from the Federal Rule. Although the 1969 Manual did not exactly address the issue, the military rule is identical with the new rule. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 806 Attacking and supporting the declarant’s credibility Rule 806 is taken from the Federal Rule without change. It restates the prior military rule that a hearsay declarant or state- ment may always be contradicted or impeached. The Rule elimi- nates any requirement that the declarant be given “an opportunity to deny or explain” an inconsistent statement or inconsistent con- duct when such statement or conduct is offered to attack the hearsay statement. As a result, Rule 806 supersedes Rule 613(b) which would require such an opportunity for a statement inconsis- tent with in-court testimony. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 807 Residual exception Rule 807 was adopted on 30 May 1998 without change from the Federal Rule and represents the residual exception to the hearsay rule formerly contained in Mil. R. Evid. 803(24) and Mil. R. Evid. 804(b)(5). The Rule strikes a balance between the general policy behind the Rules of Evidence of permitting admission of probative and reliable evidence and the congressional intent “that the residual hearsay exceptions will be used very rarely, and only in excep- tional circumstances.” S. Rep. No. 93-1277, reprinted in 1974 U.S.C.C.A.N. 7051, 7066. Mil. R. Evid. 807 represents the ac- ceptance of the so-called “catch-all” or “residual” exception to the hearsay rule. Because of the constitutional concerns associated with hearsay statements, the courts have created specific founda- tional requirements in order for residual hearsay to be admitted. See United States v. Haner , 49 M.J. 72, 77-78 (C.A.A.F. 1998). These requirements are: necessity, materiality, reliability, and no- tice. The necessity prong “essentially creates a ‘best evidence’ re- quirement.” United States v. Kelley , 45 M.J. 275, 280 (C.A.A.F. 1996) (quoting Larez v. City of Los Angeles , 946 F.2d 630, 644 (9th Cir. 1991)). Coupled with the rule’s materiality requirement, necessity represents an important fact that is more than marginal or inconsequential and is in furtherance of the interests of justice and the general purposes of the rules of evidence. There are two alternative tests in order to fulfill the reliability condition. If the residual hearsay is a “non-testimonial statement,” the proponent of the statement must demonstrate that the state- ment has particularized guarantees of trustworthiness as shown from the totality of the circumstances. Idaho v. Wright , 497 U.S. 805 (1990). The factors surrounding the taking of the statement and corroboration by other evidence should be examined to test the statement for trustworthiness. The Court of Appeals for the Armed Forces has held that the Supreme Court’s prohibition against bolstering the indicia of reliability under a Sixth Amend- m e n t a n a l y s i s d o e s n o t a p p l y t o a r e s i d u a l h e a r s a y a n a l y s i s . Therefore, in addition to evidence of the circumstances surround- ing the taking of the statement, extrinsic evidence can be consid- ered. United States v. McGrath , 39 M.J. 158, 167 (C.M.A. 1994). However, if the residual hearsay is a “testimonial statement,” e.g. “ a f f i d a v i t s , c u s t o d i a l e x a m i n a t i o n s , p r i o r t e s t i m o n y t h a t t h e [accused] was unable to cross-examine, or similar pretrial state- m e n t s t h a t d e c l a r a n t s w o u l d r e a s o n a b l y e x p e c t t o b e u s e d prosecutorially,” the proponent of the statement must demonstrate that the declarant of the statement is unavailable and the accused had a prior opportunity to cross-examine the declarant on the statement. Crawford v. Washington , 541 U.S. 36 (2004). 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. SECTION IX AUTHENTICATION AND INDENTIFICATION Rule 901 Authenticating or identifying evidence (a) General provision. Rule 901(a) is taken verbatim from the Federal Rule, and is similar to Para. 143 b of the 1969 Manual, which stated in pertinent part that: “A writing may be authenti- cated by any competent proof that it is genuine—is in fact what it purports or is claimed to be.” Unlike the 1969 Manual provision, however, Rule 901(a) is not limited to writings and consequently is broader in scope. The Rule supports the requirement for logical relevance. See Rule 401. There is substantial question as to the proper interpretation of the Federal Rule equivalent of Rule 901(a). The Rule requires only “evidence sufficient to support a finding that the matter in question is what its proponent claims.” It is possible that this phrasing supersedes any formulaic approach to authentication and that rigid rules such as those that have been devised to authenti- cate taped recordings, for example, are no longer valid. On the other hand, it appears fully appropriate for a trial judge to require such evidence as is needed “to support a finding that the matter in question is what its proponent claims,” which evidence may echo in some cases the common law formulations. There appears to be no reason to believe that the Rule will change the present law as it affects chains of custody for real evidence—especially if fun- gible. Present case law would appear to be consistent with the new Rule because the chain of custody requirement has not been applied in a rigid fashion. A chain of custody will still be re- quired when it is necessary to show that the evidence is what it is claimed to be and, when appropriate, that its condition is unchan- ged. Rule 901(a) may make authentication somewhat easier, but A22-68 App. 22, M.R.E. 804(b)(4) APPENDIX 22
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is unlikely to make a substantial change in most areas of military practice. As is generally the case, failure to object to evidence on the grounds of lack of authentication will waive the objection. See Rule 103(a). (b) Illustration. Rule 901(b) is taken verbatim from the Federal Rule with the exception of a modification to Rule 901(b)(10). Rule 901(b)(10) has been modified by the addition of “or by applicable regulations prescribed pursuant to statutory authority.” The new language was added because it was viewed as impracti- cable in military practice to require statutory or Supreme Court action to add authentication methods. The world wide disposition of the armed forces with their frequent redeployments may re- quire rapid adjustments in authentication procedures to preclude substantial interference with personnel practices needed to ensure operational efficiency. The new language does not require new statutory authority. Rather, the present authority that exists for the various Service and Departmental Secretaries to issue those regu- lations necessary for the day to day operations of their department is sufficient. Rule 901(b) is a non-exhaustive list of illustrative examples of authentication techniques. None of the examples are inconsistent with prior military law and many are found within the 1969 Manual, see, Para. 143 b. Self-authentication is governed by Rule 902. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 902 Evidence that is self-authenticating Rule 902 has been taken from the Federal Rule without signifi- cant change except that a new subdivision, 4a, has been added and subdivisions (4) and (10) have been modified. The Rule prescribes forms of self-authentication. (1) Domestic public documents under seal. Rule 902(1) is taken verbatim from the Federal Rule, and is similar to aspects of Paras. 143 b(2)(c) and (d) of the 1969 Manual. The Rule does not distinguish between original document and copies. A seal is self- authenticating and, in the absence of evidence to the contrary, is presumed genuine. Judicial notice is not required. (2) Domestic public documents not under seal. Rule 902(2) is taken from the Federal Rule without change. It is similar in scope to aspects of Paras. 143 b(2)(c) and (d) of the 1969 Manual in that it authorizes use of a certification under seal to authenticate a public document not itself under seal. This provision is not the only means of authenticating a domestic public record under this Rule. Compare Rule 902(4); 902(4a). ( 3 ) F o r e i g n p u b l i c d o c u m e n t s . R u l e 9 0 2 ( 3 ) i s t a k e n w i t h o u t change from the Federal Rule. Although the Rule is similar to Paras. 143 b(2)(e) and (f) of the 1969 Manual, the Rule is poten- tially narrower than the prior military one as the Rule does not permit “final certification” to be made by military personnel as did the Manual rule nor does it permit authentication made by military personnel as did the Manual rule nor does it permit authentication made solely pursuant to the laws of the foreign nation. On the other hand, the Rule expressly permits the military judge to order foreign documents to “be treated as presumptively authentic without final certification or permit them to be evi- d e n c e d b y a n a t t e s t e d s u m m a r y w i t h o r w i t h o u t f i n a l certification.” (4) Certified copies of public records. Rule 902(4) is taken ver- batim from the Federal Rule except that it has been modified by adding “or applicable regulations prescribed pursuant to statutory authority.” The additional language is required by military neces- sity and includes the now existing statutory powers of the Presi- d e n t a n d v a r i o u s S e c r e t a r i e s t o p r o m u l g a t e r e g u l a t i o n s . S e e , generally, Analysis to Rule 901(b). Rule 902(4) expands upon prior forms of self-authentication to acknowledge the propriety of certified public records or reports and related materials domestic or foreign, the certification of which complies with subdivisions (1), (2), or (3) of the Rule. (4a) Documents or records of the United States accompanied by attesting certificates. This provision is new and is taken from the third rule.subparagraph of Para. 143 b(2)(c) of the 1969 Manual. It has been inserted due to the necessity to facilitate records of the United States in general and military records in particular. Mili- tary records do not have seals and it would not be practicable to either issue them or require submission of documents to those officials with them. In many cases, such a requirement would be impossible to comply with due to geographical isolation or the unwarranted time such a requirement could demand. An “attesting certificate” is a certificate or statement, signed by the custodian of the record or the deputy or assistant of the custodian, which in any form indicates that the writing to which the certificate or statement refers is a true copy of the record or an accurate “translation” of a machine, electronic, or coded re- cord, and the signer of the certificate or statement is acting in an official capacity as the person having custody of the record or as the deputy or assistant thereof. See Para. 143 a(2)(a) of the 1969 Manual. An attesting certificate does not require further authenti- cation and, absent proof to the contrary, the signature of the custodian or deputy or assistant thereof on the certificate is pre- sumed to be genuine. (5-9) Official publications; Newspapers and periodicals; Trade inscriptions and the like; Acknowledged documents; Commercial paper and related documents. Rules 902(5)–(9) are taken verba- tim from the Federal Rules and have no equivalents in the 1969 Manual or in military law. (10) Presumptions under Acts of Congress and Regulations. Rule 902(10) was taken from the Federal Rule but was modified by adding “and Regulations” in the caption and “or by applicable regulation prescribed pursuant to statutory authority.” See gener- ally the Analysis to Rule 901(b)(10) for the reasons for the addi- tional language. The statutory authority referred to includes the presently existing authority for the President and various Secretar- ies to prescribe regulations. (11) 2004 Amendment: Rule 902(11) was modified based on the amendment to Fed. R. Evid. 902(11), effective 1 December 2000, and is taken from the Federal Rule without change. It provides for self-authentication of domestic business records and sets forth procedures for preparing a declaration of a custodian or other qualified witness that will establish a sufficient foundation for the admissibility of domestic business records. This Rule works to- gether with Mil. R. Evid. 803(6). 2013 Amendment. Language was added to subsection (11) and permits the military judge to admit non-noticed documents even after the trial has commenced if the offering party shows good A22-69 App. 22, M.R.E. 902(11)ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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cause to do so. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 903 Subscribing witness’s testimony Rule 903 is taken verbatim from the Federal Rule and has no express equivalent in the 1969 Manual. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. SECTION X CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule 1001 Definitions that apply to this section (1) Writings and recordings. Rule 1001(1) is taken verbatim from the Federal Rule and is similar in scope to Para. 143 d of the 1969 Manual. Although the 1969 Manual was somewhat more detailed, the Manual was clearly intended to be expansive. The Rule adequately accomplishes the identical purpose through a more general reference. (2) Photographs. Rule 1001(2) is taken verbatim from the Fed- eral Rule and had no express equivalent in the 1969 Manual. It does, however, reflect current military law. (3) Original. Rule 1001(3) is taken verbatim from the Federal Rule and is similar to Para. 143 a(1) of the 1969 Manual. The 1969 Manual, however, treated “duplicate originals,” i.e., carbon a n d p h o t o g r a p h i c c o p i e s m a d e f o r u s e a s a n o r i g i n a l , a s a n “ o r i g i n a l ” w h i l e R u l e 1 0 0 1 ( 4 ) t r e a t s s u c h a d o c u m e n t a s a “duplicate.” (4) Duplicate. Rule 1004(4) is taken from the Federal Rule ver- batim and includes those documents Para. 143 a(1) of the 1969 Manual defined as “duplicate originals.” In view of Rule 1003’s rule of admissibility for “duplicate,” no appreciable negative re- sult stems from the reclassification. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1002 Requirement of the original Rule 1002 is taken verbatim from the Federal Rule except that “this Manual” has been added in recognition of the efficacy of other Manual provisions. The Rule is similar in scope to the best evidence rule found in Para. 143 a(19) of the 1969 Manual except that specific reference is made in the rule to recordings and photographs. Unlike the 1969 Manual, the Rule does not contain the misleading reference to “best evidence” and is plainly applica- ble to writings, recordings, or photographs. It should be noted that the various exceptions to Rule 1002 are similar to but not identical with those found in the 1969 Manual. Compare Rules 1005–1007 with Para. 143 a(2)(f) of the 1969 Manual. For example, Paras. 143 a (2)(e) and 144 c of the 1969 Manual excepted banking records and business records from the rule as categories while the Rule does not. The actual difference in practice, however, is not likely to be substantial as Rule 1003 allows admission of duplicates unless, for example, “a genuine question is raised as to the authenticity of the original.” This is similar in result to the treatment of business records in Para. 144 a of the 1969 Manual. Omission of other 1969 Manual excep- tions, e.g., certificates of fingerprint comparison and identity, see Rule 703, 803, evidence of absence of official or business entries, and copies of telegrams and radiograms, do not appear substantial when viewed against the entirety of the Military Rules which are likely to allow admissibility in a number of ways. The Rule’s reference to “Act of Congress” will now incorpo- rate those statutes that specifically direct that the best evidence rule be inapplicable in one form or another. See, e.g., 1 U.S.C. § 209 (copies of District of Columbia Codes of Laws). As a rule, such statutes permit a form of authentication as an adequate substitute for the original document. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1003 Admissibility of duplicates Rule 1003 is taken verbatim from the Federal Rule. It is both similar to and distinct from the 1969 Manual. To the extent that the Rule deals with those copies which were intended at the time of their creation to be used as originals, it is similar to the 1969 Manual’s treatment of “duplicate originals,” Para. 143 a(1), ex- cept that under the 1969 Manual there was no distinction to be made between originals and “duplicate originals”. Accordingly, in this case the Rule would be narrower than the 1969 Manual. To the extent that the Rule deals with copies not intended at their time of creation to serve as originals, however, e.g., when copies are made of pre-existing documents for the purpose of litigation, the Rule is broader than the 1969 Manual because that Manual prohibited such evidence unless an adequate justification for the non-production of the original existed. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1004 Admissibility of other evidence of content Rule 1004 is taken from the Federal Rule without change, and is similar in scope to the 1969 Manual. Once evidence comes within the scope of Rule 1004, secondary evidence is admissible without regard to whether “better” forms of that evidence can be obtained. Thus, no priority is established once Rule 1002 is es- caped. Although the 1969 Manual stated in Para. 143 a(2) that “the contents may be proved by an authenticated copy or by the testimony of a witness who has seen and can remember the substance of the writing” when the original need not be produced, that phrasing appears illustrative only and not exclusive. Accord- ingly, the Rule, the Manual, and common law are in agreement in not requiring categories of secondary evidence. (1) Originals lost or destroyed. Rule 1004(1) is similar to the 1969 Manual except that the Rule explicitly exempts originals destroyed in “bad faith.” Such an exemption was implicit in the 1969 Manual. (2) Original not obtained. Rule 1004(2) is similar to the justifica- tion for nonproduction in Para. 143 a(2) of the 1969 Manual, “an admissible writing. . . cannot feasibly be produced.” (3) Original in possession of opponent. A22-70 App. 22, M.R.E. 902(11) APPENDIX 22
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Rule 1004(3) is similar to the 1969 Manual provision in Para. 143 a(2) that when a document is in the possession of the accused the original need not be produced except that the 1969 Manual explicitly did not require notice to the accused, and the Rule may require such notice. Under the Rule, the accused must be “put on notice, by the pleadings or otherwise, that the contents would be subject of proof at the hearing.” Thus, under certain circum- stances, a formal notice to the accused may be required. Under no circumstances should such a request or notice be made in the presence of the court members. The only purpose of such notice is to justify use of secondary evidence and does not serve to compel the surrender of evidence from the accused. It should be noted that Rule 1004(3) acts in favor of the accused as well as the prosecution and allows notice to the prosecution to justify defense use of secondary evidence. (4) Collateral matters. Rule 1004 is not found within the Manual but restates prior military law. The intent behind the Rule is to avoid unnecessary delays and expense. It is important to note that important matters which may appear collateral may not be so in fact due to their weight. See, e.g., United States v. Parker , 13 U.S.C.M.A. 579, 33 C.M.R. 111 (1963) (validity of divorce de- cree of critical prosecution witness not collateral when witness would be prevented from testifying due to spousal privilege if the divorce were not valid). The Rule incorporates this via its use of the expression “related to a controlling issue.” 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. Rule 1005 Copies of public records to prove content Rule 1005 is taken verbatim from the Federal Rule except that “or attested to” has been added to conform the Rule to the new Rule 902(4a). The Rule is generally similar to Para. 143 a(2)(c) of the 1969 Manual although some differences do exist. The Rule is somewhat broader in that it applies to more than just “official records.” Further, although the 1969 Manual permitted “a prop- erly authenticated” copy in lieu of the official record, the Rule allows secondary evidence of contents when a certified or attested copy cannot be obtained by the exercise of reasonable diligence. The Rule does, however, have a preference for a certified or attested copy. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1006 Summaries to prove content Rule 1006 is taken from the Federal Rule without change, and is similar to the exception to the best evidence rule now found in Para. 143 a(2)(b) of the 1969 Manual. Some difference between the Rule and the 1969 Manual exists, however, because the Rule permits use of “a chart, summary, or calculation” while the Man- ual permitted only “a summarization.” Additionally, the Rule does not include the 1969 Manual requirement that the sum- marization be made by a “qualified person or group of qualified persons,” nor does the Rule require, as the Manual appeared to, that the preparer of the chart, summary, or calculation testify in order to authenticate the document. The nature of the authentica- tion required is not clear although some form of authentication is required under Rule 901(a). It is possible for a summary that is admissible under Rule 1006 to include information that would not itself be admissible if that information is reasonably relied upon by an expert preparing the summary. See generally Rule 703 and S. Saltzburg & K. Redden, F E D E R A L R U L E S O F E V I D E N C E M A N U A L 6 9 4 ( 2 d e d . 1977). 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1007 Testimony or statement of a party to prove content Rule 1007 is taken from the Federal Rule without change and had no express equivalent in the 1969 Manual. The Rule es- tablishes an exception to Rule 1002 by allowing the contents of a writing, recording or photograph to be proven by the testimony or deposition of the party against whom offered or by the party’s written admission. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1008 Functions of the military judge and the members Rule 1008 is taken from the Federal Rule without change, and had no formal equivalent in prior military practice. The Rule specifies three situations in which members must determine issues which have been conditionally determined by the military judge. The members have been given this responsibility in this narrow range of issues because the issues that are involved go to the very heart of a case and may prove totally dispositive. Perhaps the best example stems from the civil practice. Should the trial judge in a contract action determine that an exhibit is in fact the original of a contested contract, that admissibility decision could determine the ultimate result of trial if the jury were not given the opportu- nity to be the final arbiter of the issue. A similar situation could result in a criminal case, for example, in which the substance of a contested written confession is determinative (this would be rare because in most cases the fact that a written confession was made is unimportant, and the only relevant matter is the content of the oral statement that was later transcribed) or in a case in which the accused is charged with communication of a written threat. A decision by the military judge that a given version is authentic could easily determine the trial. Rule 1008 would give the mem- ber the final decision as to accuracy. Although Rule 1008 will rarely be relevant to the usual court-martial, it will adequately protect the accused from having the case against him or her depend upon a single best evidence determination by the military judge. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. SECTION XI MISCELLANEOUS RULES A22-71 App. 22, M.R.E. 1008ANALYSIS OF THE MILITARY RULES OF EVIDENCE
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Rule 1101 Applicability of these rules The Federal Rules have been revised extensively to adapt them to the military criminal legal system. Subdivision (a) of the Fed- eral Rule specifies the types of courts to which the Federal Rules are applicable, and Subdivision (b) of the Federal Rule specifies the types of proceedings to be governed by the Federal Rules. These sections are inapplicable to the military criminal legal sys- tem and consequently were deleted. Similarly, most of Federal Rule of Evidence 1101(d) is inapplicable to military law due to the vastly different jurisdictions involved. (a) Rules applicable. Rule 1101(a) specifies that the Military R u l e s a r e a p p l i c a b l e t o a l l c o u r t s - m a r t i a l i n c l u d i n g s u m m a r y courts-martial, to Article 39(a) proceedings, limited factfinding proceedings ordered on review, revision proceedings, and con- tempt proceedings. This limited application is a direct result of the limited jurisdiction available to courts-martial. (b) Rules of privilege. Rule 1101(b) is taken from subdivision (c) of the Federal Rule and is similar to prior military law. Unlike the F e d e r a l R u l e s , t h e M i l i t a r y R u l e s c o n t a i n d e t a i l e d p r i v i l e g e s rather than a general reference to common law. Compare Federal Rule of Evidence 501 with Military Rule of Evidence 501–512. (c) Rules relaxed. Rule 1101(c) conforms the rules of evidence to military sentencing procedures as set forth in the 1969 Manual Para. 75 c. Courts-martial are bifurcated proceedings with sen- tencing being an adversarial proceeding. Partial application of the rules of evidence is thus appropriate. The Rule also recognizes the possibility that other Manual provisions may now or later affect the application of the rules of evidence. (d) Rules inapplicable. Rule 1101(d) is taken in concept from subdivision (d) of the Federal Rule. As the content of the Federal R u l e i s , h o w e v e r , g e n e r a l l y i n a p p l i c a b l e t o m i l i t a r y l a w , t h e equivalents of the Article III proceedings listed in the Federal Rule have been listed here. They included Article 32 investigative hearings, the partial analog to grand jury proceedings, proceed- ings for search authorizations, and proceedings for pretrial re- lease. 1993 Amendment. Mil. R. Evid. 1101(d) was amended to make the provisions of Mil. R. Evid. 412 applicable at pretrial investi- gations. 1998 Amendment. The Rule is amended to increase to 18 months the time period between changes to the Federal Rules of Evidence and automatic amendment of the Military Rules of Evidence. This extension allows for timely submission of changes through the annual review process. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1102 Amendments Rule 1102 has been substantially revised from the original Federal Rule which sets forth a procedure by which the Supreme Court promulgates amendments to the Federal Rules subject to Congressional objection. Although it is the Committee’s intent that the Federal Rules of Evidence apply to the armed forces to the extent practicable, see Article 36(a), the Federal Rules are often in need of modification to adapt them to military criminal legal system. Further, some rules may be impracticable. As Con- g r e s s m a y m a k e c h a n g e s d u r i n g t h e i n i t i a l p e r i o d f o l l o w i n g Supreme Court publication, some period of time after an amend- m e n t ’ s e f f e c t i v e d a t e w a s c o n s i d e r e d e s s e n t i a l f o r t h e a r m e d forces to review the final form of amendments and to propose any necessary modifications to the President. Six months was consid- ered the minimally appropriate time period. Amendments to the Federal Rules are not applicable to the armed forces until 180 days after the effective date of such amendment, unless the President directs earlier application. In the absence of any Presidential action, however, an amendment to the Federal Rule of Evidence will be automatically applicable on the 180th day after its effective date. The President may, however, affirmatively direct that any such amendment may not apply, in whole or in part, to the armed forces and that direction shall be binding upon courts-martial. 1998 Amendment: The Rule is amended to increase to 18 months the time period between changes to the Federal Rules of Evidence and automatic amendment of the Military Rules of Evidence. This extension allows for the timely submission of changes through the annual review process. 2004 Amendment: See Executive Order 13365, dated 3 Decem- ber 2004. The amendment to the Federal Rules of Evidence, effective in United States District Courts, 1 December 2000, cre- ating Rule 902(12) is not adopted. Federal Rules 301, 302, and 415, were not adopted because they were applicable only to civil proceedings. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. Rule 1103 Title In choosing the title, Military Rules of Evidence, the Commit- tee intends that it be clear that military evidentiary law should echo the civilian federal law to the extent practicable, but should also ensure that the unique and critical reasons behind the sepa- rate military criminal legal system be adequately served. 2013 Amendment. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility. A22-72 App. 22, M.R.E. 1101 APPENDIX 22
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APPENDIX 23 ANALYSIS OF PUNITIVE ARTICLES Introduction Unless otherwise indicated, the elements, maximum punish- ments and sample specifications in paragraphs 3 through 113 are based on paragraphs 157 through 213, paragraph 127 c (Table of Maximum Punishments), and Appendix 6 c of MCM, 1969 (Rev.). 1986 Amendment: The next to last paragraph of the introduc- tion to Part IV was added to define the term “elements,” as used in Part IV. In MCM, 1969 (Rev.), the equivalent term used was “proof.” Both “proof” and “elements” referred to the statutory elements of the offense and to any additional aggravating factors prescribed by the President under Article 56, UCMJ, to increase the maximum permissible punishment above that allowed for the basic offense. These additional factors are commonly referred to as “elements,” and judicial construction has approved this usage, as long as these “elements” are pled, proven, and instructed upon. United States v. Flucas , 23 U.S.C.M.A. 274, 49 C.M.R. 449 ( 1 9 7 5 ) ; U n i t e d S t a t e s v . N i c k a b o i n e , 3 U . S . C . M . A . 1 5 2 , 1 1 C.M.R. 152 (1953); United States v. Bernard , 10 C.M.R. 718 (AFBR 1953). 1. Article 77—Principals b. Explanation. (1) Purpose. Article 77 is based on 18 U.S.C. § 2. Hearings on H. R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 1240-1244 (1949). The paragraph of subparagraph b(1) reflects the purpose of 18 U.S.C. § 2 ( see Standefer v. United States , 447 U.S. 10 (1980)) and Article 77 (see Hearings, supra at 1240). The common law definitions in the second paragraph of sub- paragraph b(1) are based on R. Perkins, Criminal Law 643–666 (2d ed. 1969); and 1 C. Torcia, Wharton’s Criminal Law and Procedure §§ 29–38 (1978). Several common law terms such as “aider and abettor” are now used rather loosely and do not always retain their literal common law meanings. See United States v. Burroughs, 12 M.J. 380, 384 n.4. (C.M.A. 1982); United States v. Molina, 581 F.2d 56, 61 n.8 (2d Cir. 1978). To eliminate confu- sion, the explanation avoids the use of such terms where possible. See United States v. Burroughs, supra at 382 n.3. (2) Who may be liable for an offense. Subparagraph (2)(a) is based on paragraph 156 of MCM, 1969 (Rev.). See 18 U.S.C.A. § 2 Historical and Revision Notes (West 1969). See also United States v. Giles, 300 U.S. 41 (1937); Wharton’s, supra at §§ 30, 31, 35. Subparagraph (2)(b) sets forth the basic formulation of the requirements for liability as a principal. An act (which may be passive, as discussed in this subparagraph) and intent are neces- sary to make one liable as a principal. See United States v. Burroughs, supra; United States v. Jackson , 6 U.S.C.M.A. 193, 19 C.M.R. 319 (1955); United States v. Wooten , 1 U.S.C.M.A. 358, 3 C.M.R. 92 (1952); United States v. Jacobs , 1 U.S.C.M.A. 209, 2 C.M.R. 115 (1952). See also United States v. Walker , 621 F.2d 163 (5th Cir. 1980), cert. denied , 450 U.S. 1000 (1981); Morei v. United States , 127 F.2d 827 (6th Cir. 1942); United States v. Peoni , 100 F.2d 401, 402 (2d Cir. 1938). The terms “assist” and “encourage, advise, and instigate” have been sub- stituted for “aid” and “abet” respectively, since the latter terms are technical and may not be clear to the lay reader. See Black’s Law Dictionary 5, 63 (5th ed., 1979). See also Nye and Nissen v. United States , 336 U.S. 613, 620 (1949); Wharton’s, supra at 246-47. The last two sentences in subparagraph (2)(b) are based on the third paragraph and paragraph 156 of MCM, 1969 (Rev.). See United States v. Ford , 12 U.S.C.M.A. 31, 30 C.M.R. 31 (1960); United States v. McCarthy , 11 U.S.C.M.A. 758, 29 C.M.R. 574 (1960); United States v. Lyons , 11 U.S.C.M.A. 68, 28 C.M.R. 292 (1959). (3) Presence. This subparagraph clarifies, as paragraph 156 of MCM, 1969 (Rev.) did not, that presence at the scene is neither n e c e s s a r y n o r s u f f i c i e n t t o m a k e o n e a p r i n c i p a l . “ A i d ” a n d “abet” as used in 18 U.S.C. § 2, and in Article 77, are not used in the narrow common law sense of an “aider and abettor” who must be present at the scene to be guilty as such. United States v. Burroughs, supra; United States v. Sampol, 636 F.2d 621 (D.C. C i r . 1 9 8 0 ) ; U n i t e d S t a t e s v . M o l i n a , s u p r a ; U n i t e d S t a t e s v . Carter, 23 C.M.R. 872 (A.F.B.R. 1957). Cf. Milanovich v. United States, 365 U.S. 551 (1961). See also Wharton’s, supra at 231. Subparagraph (b) continues the admonition, contained in the third paragraph of paragraph 156 of MCM, 1969 (Rev.), that presence at the scene of a crime is not sufficient to make one a principal. See United State v. Waluski , 6 U.S.C.M.A. 724, 21 C.M.R. 46 (1956); United States v. Johnson , 6 U.S.C.M.A. 20, 19 C.M.R. 146 (1955); United States v. Guest , 3 U.S.C.M.A. 147, 11 C.M.R. 147 (1953). (4) Parties whose intent differs from the perpetrators. This subparagraph is based on the first paragraph in paragraph 156 of MCM, 1969 (Rev.). See United States v. Jackson , 6 U.S.C.M.A. 193, 19 C.M.R. 319 (1955); Wharton’s, supra at § 35. (5) Responsibility for other crimes. This paragraph is based on the first two paragraphs in paragraph 156 of MCM, 1969 (Rev.). S e e U n i t e d S t a t e s v . C o w a n , 1 2 C . M . R . 3 7 4 ( A . B . R . 1 9 5 3 ) ; United States v. Self , 13 C.M.R. 227 (A.B.R. 1953). Principals independently liable. This subparagraph is new and is based on Federal decisions. See Standefer v. United States, supra; United States v. Chenaur , 552 F.2d 294 (9th Cir. 1977); United States v. Frye , 548 F.2d 765 (8th Cir. 1977). Withdrawal. This subparagraph is new and is based on United States v. Williams , 19 U.S.C.M.A. 334, 41 C.M.R. 334 (1970). See also United States v. Miasel , 8 U.S.C.M.A. 374, 24 C.M.R. 184, 188 (157); United States v. Lowell , 649 F.2d 950 (3d. Cir., 1981); United States v. Killian , 639 F. 2d 206 (5th Cir.), cert. denied 451 U.S. 1021 (1981). 2. Article 78—Accessory after the fact c. Explanation. (1) In general. This subparagraph is based on paragraph 157 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . T a m a s , 6 U.S.C.M.A. 502, 20 C.M.R. 218 (1955). (2) Failure to report offense. This subparagraph is based on paragraph 157 of MCM, 1969 (Rev.); United States v. Smith , 5 M.J. 129 (C.M.A. 1978). (3) Offense punishable by the code. This subparagraph is based A23-1
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on Article 78; United States v. Michaels , 3 M.J. 846 (A.C.M.R. 1977); United States v. Blevins , 34 C.M.R. 967 (A.F.B.R. 1964). (4) Status of principal. This subparagraph is based on Article 78 and United States v. Michaels , 3 M.J. 846 (A.C.M.R. 1977); United States v. Blevins , 34 C.M.R. 967 (A.F.B.R. 1964). (5) Conviction or acquittal of principal. The subparagraph is based on paragraph 157 of MCM, 1969 (Rev.); United States v. Marsh, 13 U.S.C.M.A. 252, 32 C.M.R. 252 (1962); and United States v. Humble , 11 U.S.C.M.A. 38, 28 C.M.R. 262 (1959). See also United States v. McConnico , 7 M.J. 302 (C.M.A. 1979). (6) Accessory after the fact not a lesser included offense. This s u b p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v . M c F a r l a n d , 8 U.S.C.M.A. 42, 23 C.M.R. 266 (1957). ( 7 ) A c t u a l K n o w l e d g e . T h i s p a r a g r a p h i s b a s e d o n U n i t e d States v. Marsh , supra. See United States v. Foushee , 13 M.J. 833 (A.C.M.R. 1982). MCM, 1984, APPENDIX 21, Part IV, ARTI- CLE 79. 3. Article 79—Lesser included offenses b. Explanation. (1) In general. This subparagraph and the three subparagraphs are based on paragraph 158 of MCM, 1969 (Rev.). See also United States v. Thacker , 16 U.S.C.M.A. 408, 37 C.M.R. 28 (1966). 2012 Amendment . In 2010, the Court of Appeals for the Armed Forces examined Article 79 and clarified the legal test for lesser included offenses. United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010). In Jones, the Court held that the elements test is the proper method of determining lesser included offenses and that an offense under Article 79 is “necessarily included” in the offense charged only if the elements of the lesser offense are a subset of the elements of the greater offense alleged. Under the elements test, one must compare the elements of each offense. If all of the elements of offense X are also elements of offense Y, then X is a lesser included offense of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements. The offenses do not have to use identical statutory language; rather, the court uses normal principles of statutory construction to determine the mean- ing of each element. See Jones , 68 M.J. at 470; United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996). Practitioners should under- stand the holding in Jones and carefully apply the elements test on a case-by-case basis. ( 2 ) M u l t i p l e l e s s e r i n c l u d e d o f f e n s e s . T h i s s u b p a r a g r a p h i s based on paragraph 158 of MCM, 1969 (Rev.). See also United States v. Calhoun , 5 U.S.C.M.A. 428, 18 C.M.R. 52 (1955). (3) Findings of guilty to a lesser included offense. This sub- paragraph is taken from paragraph 158 of MCM, 1969 (Rev.). (4) Specific lesser included offenses. 2016 Amendment: See analysis in paragraph 3.b.(1) above. Lesser included offenses (LIO) listings were removed from each punitive article in paragraphs 1-113 (except paragraphs 1 and 3), Part IV, and were moved to a new Appendix 12A. The LIO listings are determined based on the elements of the greater of- fense, but are not binding. Therefore, practitioners should use Appendix 12A only as a guide. To determine if an offense is lesser included, the elements test must be used. United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The offenses are not required to possess identical statutory language; rather, the court uses normal principles of statutory construction to determine the meaning of each element. See id. at 470-73; United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996); Schmuck v. United States , 489 U.S. 705 (1989). Article 134 offenses generally will not be lesser included offenses of enumerated offenses in Articles 80-133. See United States v. Girouard , 70 M.J. 5 (C.A.A.F. 2011); United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011). Article 134 specifications must contain the “terminal element.” See paragraphs 60.b and 60 .c.(6)(a) in Part IV. See also United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011); United States v. Ballan , 71 M.J. 28 (C.A.A.F. 2012); R.C.M. 307(c)(3). 4. Article 80—Attempts c. Explanation. (1) In general. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.). (2) More than preparation. This subparagraph is based on par- agraph 159 of MCM, 1969 (Rev.); United States v. Johnson , 7 U.S.C.M.A. 488, 22 C.M.R. 278 (1957); United States v. Choat , 7 U.S.C.M.A. 187, 21 C.M.R. 313 (1956); United States v. Goff , 5 M.J. 817 (A.C.M.R. 1978); United States v. Emerson , 16 C.M.R. 690 (A.F.B.R. 1954). (3) Factual impossibility. This subparagraph is based on para- graph 159 of MCM, 1969 (Rev.); United States v. Thomas , 13 U.S.C.M.A. 278, 32 C.M.R. 278 (1962). See United States v. Quijada, 588 F.2d 1253 (9th Cir. 1978). (4) Voluntary abandonment. 1995 Amendment: Subparagraph (4) is new. It recognizes vol- untary abandonment as an affirmative defense as established by the case law. See United States v. Byrd , 24 M.J. 286 (C.M.A. 1987). See also United States v. Schoof , 37 M.J. 96, 103-04 ( C . M . A . 1 9 9 3 ) ; U n i t e d S t a t e s v . R i o s , 3 3 M . J . 4 3 6 , 4 4 0 - 4 1 (C.M.A. 1991); United States v. Miller , 30 M.J. 999 (N.M.C.M.R. 1 9 9 0 ) ; U n i t e d S t a t e s v . W a l t h e r , 3 0 M . J . 8 2 9 , 8 2 9 - 3 3 (N.M.C.M.R. 1990). The prior subparagraphs (4) - (6) have been redesignated (5) - (7), respectively. (5) Solicitation. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.). (6) Attempts not under Article 80. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.). 1986 Amendment: In 4c(5), subparagraph (e) was redesignated as subparagraph (f), and a new subparagraph (e) was added to reflect the offense of attempted espionage as established by the Department of Defense Authorization Act, 1986, Pub.L. No. 99- 145, § 534, 99 Stat. 583, 634-35 (1985) (art. 106a). (7) Regulations. This subparagraph is new and is based on United States v. Davis , 16 M.J. 225 (C.M.A. 1983); United States v. Foster , 14 M.J. 246 (C.M.A. 1983). e. Maximum punishment 1991 Amendment: This paragraph was revised to allow for the imposition of confinement in excess of 20 years for the offense of attempted murder. There are cases in which the aggravating fac- tors surrounding commission of an attempted murder are so egre- gious that a 20 year limitation may be inappropriate. Although life imprisonment may be imposed by the sentencing authority, A23-2 Pun. Art. 78 APPENDIX 23
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mandatory minimum punishment provisions do not apply in the case of convictions under Article 80. 2016 Amendment : Subparagraph e. as amended includes excep- tions to the general rule that mandatory minimum punishments shall not apply to attempts. This change brings this paragraph into conformity with Article 56 as amended by Section 1705 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013. 5. Article 81—Conspiracy c. Explanation. (1) Co-conspirators. This subparagraph is based on paragraph 160 of MCM, 1969 (Rev.); United States v. Kinder , 14 C.M.R. 742 (A.F.B.R. 1953). The portion of paragraph 160 which pro- vided that acquittal of all alleged co-conspirators precludes con- viction of the accused has been deleted. See United States v. Garcia 16 M.J. 52 (C.M.A. 1983). See also United States v. Standefer, 447 U.S. 10 (1980). (2) Agreement. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.). (3) Object of the agreement. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); United States v. Kidd , 13 U.S.C.M.A. 184, 32 C.M.R. 184 (1962). The last three sentences reflect “Wharton’s Rule,” 4 C. Torcia, Wharton’s Criminal Law, § 731 (1981). See Iannelli v. United States , 420 U.S. 770 (1975); United States v. Yarborough , 1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952); United States v. Osthoff , 8 M.J. 629 (A.C.M.R. 1979); United States v. McClelland , 49 C.M.R. 557 (A.C.M.R. 1974). (4) Overt act. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); United States v. Rhodes , 11 U.S.C.M.A. 7 3 5 , 2 9 C . M . R . 5 5 1 ( 1 9 6 0 ) ; U n i t e d S t a t e s v . S a l i s b u r y , 1 4 U.S.C.M.A. 171, 33 C.M.R. 383 (1963); United States v. Wood- ley, 13 M.J. 984 (A.C.M.R. 1982). (5) Liability for offenses. This subparagraph is taken from par- agraph 160 of MCM, 1969 (Rev.). See Pinkerton v. United States , 328 U.S. 640 (1946); United States v. Salisbury , 14 U.S.C.M.A. 171, 33 C.M.R. 383 (1963); United States v. Woodley , 13 M.J. 984 (A.C.M.R. 1982). (6) Withdrawal. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); United States v. Miasel , 8 U.S.C.M.A. 374, 24 C.M.R.184 (1957). (7) Factual impossibility. This subparagraph is taken from par- agraph 160 of MCM, 1969 (Rev.). (8) Conspiracy as a separate offense. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.). See also United States v. Washington , 1 M.J. 473 (C.M.A. 1976). (9) Special conspiracies under Article 134. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); United States v. Chapman , 10 C.M.R. 306 (A.B.R. 1953). 6. Article 82—Solicitation b. Elements. Solicitation under Article 82 has long been recog- nized as a specific intent offense. See paragraph 161 of MCM, 1969 (Rev.); paragraph 161 of MCM, 1951. See generally United States v. Mitchell , 15 M.J. 214 (C.M.A. 1983); United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979). It has been added as an element for clarity. c. Explanation. This paragraph is taken from paragraph 161 of MCM, 1969 (Rev.), United States v. Wysong , 9 U.S.C.M.A. 248, 26 C.M.R. 29 (1958); United States v. Gentry , 8 U.S.C.M.A. 14, 23 C.M.R. 238 (1957); United States v. Benton , 7 M.J. 606 (N.C.M.R. 1979). 7. Article 83—Fraudulent enlistment, appointment, or separation c. Explanation. This paragraph is based on paragraph 162 of MCM, 1969 (Rev.); United States v. Danley , 21 U.S.C.M.A. 486, 4 5 C . M . R . 2 6 0 ( 1 9 7 2 ) . S e e W i c k h a m v . H a l l , 1 2 M . J . 1 4 5 (C.M.A. 1981). e. Maximum Punishment. The reference to membership in, asso- ciation with, or activities in connection with organizations, associ- a t i o n s , e t c . , f o u n d i n t h e T a b l e o f M a x i m u m P u n i s h m e n t s , paragraph 127 c of MCM, 1969 (Rev.), for Article 83, was de- leted as unnecessary. The maximum punishment for all fraudulent enlistment cases was then standardized. 8. Article 84—Effecting unlawful enlistment, appointment, or separation c. Explanation. This paragraph is taken from paragraph 163 of MCM, 1969 (Rev.). See also United States v. Hightower , 5 M.J. 717 (A.C.M.R. 1978). e. Maximum punishment. The reference to membership in, with, or activities in connection with organizations, associations, etc., found in the Table of Maximum Punishments, paragraph 127 c of MCM, 1969 (Rev.), or Article 84, was deleted as unnecessary. The maximum punishment for all cases was then standardized. 9. Article 85—Desertion c. Explanation. (1) Desertion with intent to remain away permanently. (a) In general. This subparagraph is taken from paragraph 164a of MCM, 1969 (Rev.). (b) Absence without authority-inception, duration, termina- tion. See the Analysis, paragraph 10. (c) Intent to remain away permanently. This subparagraph is taken from paragraph 164 a of MCM, 1969 (Rev.). The last sen- tence is based on United States v. Cothern , 8 U.S.C.M.A. 158, 23 C.M.R. 382 (1957). (d) Effect of enlistment or appointment in the same or a different armed force. This subparagraph is based on paragraph 164a of MCM, 1969 (Rev.); United States v. Huff , 7 U.S.C.M.A. 247, 22 C.M.R. 37 (1956). (2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service. (a) Hazardous duty or important service. This subparagraph is taken from paragraph 164 a of MCM, 1969 (Rev.). See also United States v. Smith , 18 U.S.C.M.A. 46, 39 C.M.R. 46 (1968); U n i t e d S t a t e s v . D e l l e r , 3 U . S . C . M . A . 4 0 9 , 1 2 C . M . R . 1 6 5 (1953). (b) Quits. This subparagraph is based on United States v. Bondar, 2 U.S.C.M.A. 357, 8 C.M.R. 157 (1953). (c) Actual Knowledge. This subparagraph is based on United States v. Stabler , 4 U.S.C.M.A. 125, 15 C.M.R. 125 (1954) and rejects the view of paragraph 164 a of MCM, 1969 (Rev.) that A23-3 Pun. Art. 85ANALYSIS OF PUNITIVE ARTICLES
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constructive knowledge would suffice. To avoid confusion, the “constructive knowledge” language has been replaced with the statement that actual knowledge may be proved by circumstantial evidence. See United States v. Curtin , 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). (3) Attempting to desert. This subparagraph is taken from para- graph 164 b of MCM, 1969 (Rev.). ( 4 ) P r i s o n e r w i t h e x e c u t e d p u n i t i v e d i s c h a r g e . T h i s s u b - paragraph is taken from paragraphs 164 a and 165 of MCM, 1969 (Rev.). e. Maximum punishment. As indicated in the Analysis, paragraph 4, attempts, the punishment for attempted desertion was made uniform. As a result, attempted desertion- “other cases of”- now conforms with the punishment for “desertion- other cases of.” This amounts to an increase in the maximum punishment from confinement for one year to either two or three years, depending on the nature of termination. 10. Article 86—Absence without leave c. Explanation. (1) In general. This subparagraph is taken from paragraph 165 of MCM, 1969 (Rev.). (2) Actual knowledge. This subparagraph clarifies that the ac- cused must have in fact known of the time and place of duty to be guilty of a violation of Article 86(1) or (2). Cf. United States v. Chandler , 23 U.S.C.M.A. 193, 48 C.M.R. 945 (1974); United States v. Stabler , 4 U.S.C.M.A. 125, 15 C.M.R. 125 (1954). See also United States v. Gilbert , 23 C.M.R. 914 (A.F.B.R. 1957). The language in paragraph 165 of MCM, 1969 (Rev.) dealing with constructive knowledge has been eliminated. To avoid con- fusion, this language has been replaced with the statement that actual knowledge may be proved by circumstantial evidence. See U n i t e d S t a t e s v . C u r t i n , 9 U . S . C . M . A . 4 2 7 , 2 6 C . M . R . 2 0 7 (1958). (3) Intent. This subparagraph is based on paragraph 165 of MCM, 1969 (Rev.). ( 4 ) A g g r a v a t e d f o r m s o f u n a u t h o r i z e d a b s e n c e . T h i s s u b - paragraph is based on paragraphs 127 c and 165 of MCM, 1969 (Rev.). (5) Civil authorities. This subparagraph is taken from para- g r a p h 1 6 5 f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . M y h r e , 9 U.S.C.M.A. 32, 25 C.M.R. 294 (1958); United States v. Grover , 10 U.S.C.M.A. 91, 27 C.M.R. 165 (1958). See also United States v. Dubry , 12 M.J. 36 (C.M.A. 1981). (6) Inability to return. This subparagraph is taken from para- graph 165 of MCM, 1969 (Rev.). (7) Determining the unit or organization of an accused. This subparagraph is based on United States v. Pounds , 23 U.S.C.M.A. 1 5 3 , 4 8 C . M . R . 7 6 9 ( 1 9 7 4 ) ; U n i t e d S t a t e s v . M i t c h e l l , 7 U.S.C.M.A. 238, 22 C.M.R. 28 (1956). (8) Duration. This subparagraph is taken from paragraphs 127 c and 165 of MCM, 1969 (Rev.); United States v. Lovell , 7 U.S.C.M.A. 445, 22 C.M.R. 235 (1956). (9) Computation of duration. This subsection is based on para- graph 127 c(3) of MCM, 1969 (Rev.). (10) Termination—methods of return to military control. This subparagraph is based on paragraph 165 of MCM, 1969 (Rev.); United States v. Dubry, supra; United States v. Raymo , 1 M.J. 31 (C.M.A. 1975); United States v. Garner , 7 U.S.C.M.A. 578, 23 C.M.R. 42 (1957); United States v. Coates , 2 U.S.C.M.A. 625, 10 C.M.R. 123 (1953); United States v. Jackson , 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952); United States v. Petterson , 14 M.J. 608 ( A . F . C . M . R . 1 9 8 2 ) ; U n i t e d S t a t e s v . C o g l i n , 1 0 M . J . 6 7 0 (A.F.C.M.R. 1981). See also United States v. Zammit , 14 M.J. 554 (N.M.C.M.R. 1982). (11) Findings of more than one absence under one specifica- tion. This subsection is based on United States v. Francis , 15 M.J. 424 (C.M.A. 1983). (e) Maximum punishment. The increased maximum punishment for unauthorized absence for more than 30 days terminated by apprehension has been added to parallel the effect of termination o f d e s e r t i o n b y a p p r e h e n s i o n a n d t o e n c o u r a g e a b s e n t s e r - vicemembers to voluntarily return. A bad-conduct discharge was added to the permissible maximum punishment for unauthorized absence with intent to avoid maneuvers of field duty, because with sensitive, high value equipment used in exercises currently, the effect of such absence is more costly and, because of limited available training time, seriously disrupts training and combat readiness. 1990 Amendment: The Note in subsection b(4) was inserted and a conforming change was made in subsection f(4) to clarify t h e d i s t i n c t i o n b e t w e e n “ u n a u t h o r i z e d a b s e n c e f r o m a g u a r d , watch, or duty section” and “unauthorized absence from guard, watch, or duty section with the intent to abandon it.” See subsec- tions c(4)(c) and c(4)(d). 11. Article 87—Missing movement c. Explanation. (1) Movement. This subparagraph is based on paragraph 166 of MCM, 1969 (Rev.); United States v. Kimply , 17 C.M.R. 469 (N.B.R. 1954). (2) Mode of movement. This subparagraph is based on United States v. Graham , 16 M.J. 460 (C.M.A. 1983); United States v. Johnson, 3 U.S.C.M.A. 174, 11 C.M.R. 174 (1953); United States v. Burke, 6 C.M.R. 588 (A.B.R. 1952); United States v. Jackson , 5 C.M.R. 429 (A.B.R. 1952). See also United States v. Graham , 12 M.J. 1026 (A.C.M.R.), pet granted , 14 M.J. 223 (1982). (3) Design. This subparagraph is based on United States v. Clifton, 5 C.M.R. 342 (N.B.R. 1952). (4) Neglect. This subparagraph is taken from paragraph 166 of MCM, 1969 (Rev.). (5) Actual knowledge. This subparagraph is based on United States v. Chandler , 23 U.S.C.M.A. 193, 48 C.M.R. 945 (1974); United States v. Thompson , 2 U.S.C.M.A. 460, 9 C.M.R. 90 (1953); and in part on paragraph 166 of MCM, 1969 (Rev.). This paragraph rejects the language of paragraph 166 of MCM, 1969 (Rev.), which has provided for “constructive knowledge,” and adopts the “actual knowledge” requirement set forth in Chandler. (6) Proof of absence. This subparagraph is taken from para- graph 166 of MCM, 1969 (Rev.). e. Maximum punishment. The maximum punishment for missing movement was increased to make these punishments more equiv- alent to aggravated offenses of unauthorized absences and viola- tions of orders. The major reliance of the armed forces on rapid A23-4 Pun. Art. 85 APPENDIX 23
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deployment and expeditious movement of personnel and equip- ment to deter or prevent the escalation of hostilities dictates that these offenses be viewed more seriously. 12. Article 88—Contempt toward officials c. Explanation. This paragraph is taken from paragraph 167 of MCM, 1969 (Rev.). For a discussion of the history of Article 88, see United States v. Howe , 17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967). e. Maximum punishment. This limitation is new and is based on the authority given the President in Article 56. Paragraph 127 c of MCM, 1969 (Rev.), does not mention Article 88. The maximum punishment is based on the maximum punishment for Article of War 62, which was analogous to Article 88, as prescribed in paragraph 117 c of MCM (Army), 1949, and MCM (AF), 1949. 2007 Amendment . The analysis for paragraph 12a is amended b y r e p l a c i n g t h e w o r d “ T r a n s p o r t a t i o n ” w i t h t h e w o r d s “Homeland Security” to reflect the reorganization of the United States Coast Guard under the Department of Homeland Security. 13. Article 89—Disrespect toward a superior commissioned officer c. Explanation. This paragraph is taken from Article 1(5); para- graph 168 of MCM, 1969 (Rev.); United States v. Richardson , 7 M . J . 3 2 0 ( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s v . F e r e n c z i , 1 0 U.S.C.M.A. 3, 27 C.M.R. 77 (1958); United States v. Sorrells , 49 C.M.R. 44 (A.C.M.R. 1974); United States v. Cheeks , 43 C.M.R. 1 0 1 3 ( A . F . C . M . R . 1 9 7 1 ) ; U n i t e d S t a t e s v . M o n t g o m e r y , 1 1 C.M.R. 308 (A.B.R. 1953). e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t w a s i n - creased from confinement for 6 months to confinement for 1 year to more accurately reflect the serious nature of the offense and to distinguish it from disrespect toward warrant officers under Arti- cle 91. See paragraph 15 c. 14. Article 90—Assaulting or willfully disobeying superior commissioned officer c. Explanation. (1) Striking or assaulting superior commissioned officer. This subparagraph is based on paragraph 169 a of MCM, 1969 (Rev.) and other authorities as noted below. (a) Definitions. “Strikes” is clarified to include any inten- tional offensive touching. Other batteries, such as by culpable negligence, are included in “offers violence.” As to “superior commissioned officer,” see Analysis, paragraph 13. (d) Defenses. This subparagraph modifies the former discus- sion of self-defense since technically, because unlawfulness is not an element expressly, the officer must be acting illegally or other- wise outside the role of an officer before self-defense may be in issue. See United States v. Struckman , 20 U.S.C.M.A. 493, 43 C.M.R. 333 (1971). ( 2 ) D i s o b e y i n g s u p e r i o r c o m m i s s i o n e d o f f i c e r . T h i s s u b - paragraph is based on paragraph 169 b of MCM, 1969 (Rev.) and other authorities as noted below. (a) Lawfulness of the order. (i) Inference of lawfulness. See United States v. Keenan , 18 U.S.C.M.A. 108, 39 C.M.R. 108 (1969); United States v. Schultz, 18 U.S.C.M.A. 133, 39 C.M.R. 133 (1969); United States v. Kinder , 14 C.M.R. 742 (A.B.R. 1954). ( i i ) 2 0 0 5 A m e n d m e n t : T h e C o u r t o f A p p e a l s f o r t h e Armed Forces held that the lawfulness of an order is a question of law to be determined by the military judge, not the trier of fact. See United States v. New , 55 M.J. 95, 100-01 (C.A.A.F. 2001). (iii) Authority of issuing officer. See United States v. Mar- sh, 3 U.S.C.M.A. 48, 11 C.M.R. 48 (1953). (iv) Relationship to military duty. See United States v. Martin, 1 U.S.C.M.A. 674, 5 C.M.R. 102 (1952); United States v. Wilson, 12 U.S.C.M.A. 165, 30 C.M.R. 165 (1961) (restriction on drinking); United States v. Nation , 9 U.S.C.M.A. 724, 26 C.M.R. 5 0 4 ( 1 9 5 8 ) ( o v e r s e a s m a r r i a g e ) ; U n i t e d S t a t e s v . L e n o x , 2 1 U.S.C.M.A. 314, 45 C.M.R. 88 (1972); United States v. Stewart , 20 U.S.C.M.A. 272, 43 C.M.R. 112 (1971); United States v. Wilson, 19 U.S.C.M.A. 100, 41 C.M.R. 100 (1969); United States v. Noyd , 18 U.S.C.M.A. 483, 40 C.M.R. 195 (1969) (all dealing with matters that do not excuse the disobedience of an order). (v) Relationship to statutory or constitutional rights. This subparagraph is based on Article 31; United States v. McCoy , 12 U.S.C.M.A. 68, 30 C.M.R. 68 (1960); United States v. Aycock , 15 U.S.C.M.A. 158, 35 C.M.R. 130 (1964). ( b ) P e r s o n a l n a t u r e o f t h e o r d e r . S e e U n i t e d S t a t e s v . Wartsbaugh, 21 U.S.C.M.A. 535, 45 C.M.R. 309 (1972). (d) Specificity of the order. See United States v. Bratcher , 18 U.S.C.M.A. 125, 38 C.M.R. 125 (1969). ( e ) K n o w l e d g e . S e e U n i t e d S t a t e s v . P e t t i g r e w , 1 9 U.S.C.M.A. 191, 41 C.M.R. 191 (1970); United States v. Oisten , 13 U.S.C.M.A. 656, 33 C.M.R. 188 (1963). ( g ) T i m e f o r c o m p l i a n c e . S e e U n i t e d S t a t e s v . S t o u t , 1 U.S.C.M.A. 639, 5 C.M.R. 67 (1952); United States v. Squire , 47 C . M . R . 2 1 4 ( N . C . M . R . 1 9 7 3 ) ; U n i t e d S t a t e s v . C l o w s e r , 1 6 C.M.R. 543 (A.F.B.R. 1954). 15. Article 91—Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer c. Explanation. (1) In general. This subparagraph is based on p a r a g r a p h 1 7 0 o f M C M , 1 9 6 9 ( R e v . ) a n d p a r a g r a p h 1 7 0 o f MCM, 1951; a review of the legislative history of Article 91; United States v. Ransom , 1 M.J. 1005 (N.C.M.R. 1976); United States v. Balsarini , 36 C.M.R. 809 (C.G.B.R. 1965). Paragraph 170 of MCM, 1951 and MCM, 1969 (Rev.) discussed Article 91 as if Congress had required a superior-subordinate relationship in Article 91. See Legal and Legislative Basis, Manual for Courts- Martial, United States, 1951, at 257. Analysis of Contents, Man- ual for Courts-Martial, United States, 1969 (Revised edition) , DA PAM 27–2, at 28–6. This was in error and all references thereto have been removed. An amendment to Article 91 was suggested by The Judge Advocate General of the Army ( see Hearings on S.857 and H.R. 4080 Before a Subcommittee of the Senate Armed Service Committee, 81st Cong., 1st Sess. 274 (1949)) to conform Article 91 to Articles 89 and 90, which explicitly require superi- ority, and was later offered, but it was not acted on. See Congres- sional Floor Debate on the Uniform Code of Military Justice (amendment M. p. 170). See also Hearings Before a Subcommit- tee of the House Armed Services Committee on H.R. 2498 , 81st Cong. 1st Sess. 772, 814, 823 (1949). This present interpretation A23-5 Pun. Art. 91ANALYSIS OF PUNITIVE ARTICLES
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is consistent with the unambiguous language of Article 91 and its predecessors. See Articles of War 65 and 1(b) (1920); and para- graph 135, MCM, 1928; paragraph 153, MCM, (Army), 1949 and MCM (AF), 1949. See also Act of Aug. 10, 1956, Pub.L. No. 84–1028, §49(e), 70A Stat. 640 (catchlines in U.C.M.J. not rele- vant to congressional intent). The remaining subparagraphs are all taken from paragraph 170 of MCM, 1969 (Rev.) and the discussion paragraphs of other articles. e. Maximum punishment. Subparagraphs (2) and (7) are based on the aggravating circumstances that the victim is also superior to the accused. When this factor exists in a given case, the superior- ity of the victim must be alleged in the specification. The penal- ties for disobedience of noncommissioned and petty officers and for assault on and disrespect toward superior noncommissioned and petty officers were increased. In the case of the latter two offenses, this is done in part to distinguish assault on or disrespect toward a superior noncommissioned or petty officer from other assaults or disrespectful behavior, in light of the expansive cover- age of the article. Moreover, increasing responsibility for training, complex and expensive equipment, and leadership in combat is placed on noncommissioned and petty officers in today’s armed forces. The law should reinforce the respect and obedience which is due them with meaningful sanctions. The maximum punish- ment for disrespect toward warrant officers was adjusted to con- form to these changes. 16. Article 92—Failure to obey order or regulation c. Explanation. This paragraph is taken from paragraph 171 of MCM, 1969 (Rev.). The requirement that actual knowledge be an element of an Article 92(3) offense is based on United States v. Curtin, 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). As to publication under subparagraph c(1)(a), see United States v. Tolkach , 14 M.J. 239 (C.M.A. 1982). Subparagraph (1)(e) Enforceability is new. This subparagraph is based on United States v. Nardell , 21 U.S.C.M.A. 327, 45 C.M.R. 101 (1972); United States v. Hogsett , 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958). The general order or regulation violated must, when examined as a whole, demonstrate that it is intended to regulate the conduct of individual servicemembers, and the direct application of sanctions for violations of the regulation must be self-evident. United States v. Nardell, supra at 329, 45 C.M.R. at 103. See United States v. Wheeler , 22 U.S.C.M.A. 149, 46 C.M.R. 149(1973); United States v. Scott , 22 U.S.C.M.A. 25, 46 C.M.R. 24 (1972); United States v. Woodrum , 20 U.S.C.M.A. 5 2 9 , 4 3 C . M . R . 3 6 9 ( 1 9 7 1 ) ; U n i t e d S t a t e s v . B r o o k s , 2 0 U.S.C.M.A. 42, 42 C.M.R. 220 (1970); United States v. Baker , 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); United States v. Tassos , 18 U.S.C.M.A. 12, 39 C.M.R. 12 (1968); United States v. Farley , 11 U.S.C.M.A. 730, 29 C.M.R. 546 (1960); DiChiara, Article 92; Judicial Guidelines for Identifying Punitive Orders and Regula- tions, 17 A.F.L. Rev. Summer 1975 at 61. e. Maximum punishment. The maximum punishment for willful dereliction of duty was increased from 3 months to 6 months confinement and to include a bad-conduct discharge because such offenses involve a flaunting of authority and are more closely analogous to disobedience offenses. February 1986 Amendment: The rule was revised to add con- structive knowledge as an alternative to the actual knowledge requirement in paragraph ( b)(3)(b) and the related explanation in subparagraph c(3)(b). In reviewing these provisions, it was con- cluded that the reliance of the drafters of the 1984 revision on the Curtin case was misplaced because the portion of that case dealt with failure to obey under Article 92(2), not dereliction under Article 92(3). As revised, the elements and the explanation add an objective standard appropriate for military personnel. 2015 Amendment: Subsection b(3) was amended to increase the punishment for dereliction of duty when such dereliction results in grievous bodily harm or death. Subsection b(3)(d) incorporates a recommendation of the May 2013 report of the Defense Legal Policy Board (DLPB), Report of the Subcommittee on Military Justice in Combat Zones. The DLPB is a Federal Advisory Com- mittee established to provide independent advice to the Secretary of Defense. The DLPB subcommittee primarily focused on civil- ian casualties in a deployed environment, and the DLPB found that the maximum punishment for dereliction of duty was not c o m m e n s u r a t e w i t h t h e p o t e n t i a l c o n s e q u e n c e s o f d e r e l i c t i o n resulting in civilian casualties. The DLPB also found that the available punishment did not make alternative dispositions to court-martial a practical option because there was little incentive for an accused to accept these alternatives. This rule expands on the recommendation of the DLPB and includes elevated maxi- mum punishment for dereliction of duty that results in death or grievous bodily harm suffered by any person. 17. Article 93—Cruelty and maltreatment c. Explanation. This paragraph is based on paragraph 172 of MCM, 1969 (Rev.); United States v. Dickey , 20 C.M.R. 486 (A.B.R. 1956). The phrase “subject to the Code or not” was added to reflect the fact that the victim could be someone other than a member of the military. The example of sexual harassment was added because some forms of such conduct are nonphysical maltreatment. 18. Article 94—Mutiny and sedition c. Explanation. This paragraph is taken from paragraph 173 of MCM, 1969 (Rev.). Subparagraph (1) is also based on United States v. Woolbright , 12 U.S.C.M.A. 450, 31 C.M.R. 36 (1961); United States v. Duggan , 4 U.S.C.M.A. 396, 15 C.M.R. 396 (1954). The reference in paragraph 173 of MCM, 1969 (Rev.) to charging failure to report an impending mutiny or sedition under Article 134 has been deleted in subparagraph (4). This is because such an offense was not listed in the Table of Maximum Punish- ments or elsewhere under Article 134 in that Manual. Article of War 67 included this offense, but Article 94 excludes it. The drafters of paragraph 173 of MCM, 1951 noted the change. To fill the gap they referred to Article 134. Instead, they should have referred to Article 92(3) because dereliction is the gravamen of the offense. 19. Article 95—Resistance, breach of arrest, and escape b. Elements. The elements listed for breaking arrest and escape from custody or confinement have been modified. Paragraph 174 b, c , and d of MCM, 1969 (Rev.) provided that the accused be “duly” placed in arrest, custody, or confinement. “Duly” was deleted from the elements of these offenses. Instead, the elements A23-6 Pun. Art. 91 APPENDIX 23
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specify that the restraint be imposed by one with authority to impose it. This was done to clarify the meaning of the word “duly” and the burden of going forward on the issues of authority to order restraint and the legal basis for the decision to order restraint. “Duly” means “in due or proper form or manner, according to legal requirements.” Black’s Law Dictionary 450 (5th ed. 1979). See also United States v. Carson , 15 U.S.C.M.A. 407, 35 C.M.R. 379 (1965). Thus the term includes a requirement that restraint be imposed by one with authority to do so, and a requirement that such authority be exercised lawfully. Until 1969, the Manual also provided that arrest, confinement, or custody which is “officially imposed is presumed to be legal.” Paragraph 174 of MCM, 1951. See also paragraph 157 of MCM, (Army), 1949, MCM (AF), 1949; paragraph 139 of MCM, 1928. In practical effect, therefore, the prosecution had only to present some evidence of the author- ity of the official imposing restraint to meet its burden of proof, unless the presumption of legality was rebutted by some evi- dence. See United States v. Delagado , 12 C.M.R. 651 (C.G.B.R. 1 9 5 3 ) . C f . U n i t e d S t a t e s v . C l a n s e y , 7 U . S . C . M . A . 2 3 0 , 2 2 C.M.R. 20 (1956); United States v. Gray , 6 U.S.C.M.A. 615, 20 C.M.R. 331 (1956). The drafters of MCM, 1969 (Rev.), deleted the presumption of legality. In their view the holding in United States v. Carson, supra, that this is a question of law to be decided by the military judge made such a presumption meaningless. Analysis of Con- tents, Manual for Courts-Martial, United States, 1969 (Revised edition), DA PAM 27–2, at 28–8. The drafters considered delet- ing “duly” as an element but did not because the prosecution must show that restraint was “duly” imposed. Id. The result left the implication that the prosecution must produce evidence of both the authority of the person imposing or ordering restraint, and the legality of that official’s decision in every case, whether or not the latter is contested. Given the dual meaning of the word “duly” and the reason for deleting the presumption of legality, it is unclear whether the drafters intended this result. Cf. United States v. Stinson , 43 C.M.R. 595 (A.C.M.R. 1970). “Duly” is replaced with the requirement that the person order- ing restraint be proved to have authority to do so. This clarifies that proof of arrest, custody, or confinement ordered by a person with authority to do so is sufficient without proof of the underly- ing basis for the restraint (e.g., probable cause, legally sufficient nonjudicial punishment, risk of flight), unless the latter is put in issue by the defense. This is consistent with Article 95 which on its face does not require the restraint to be lawful ( compare Article 95 with Articles 90–92 which prohibit violations of “ law- ful orders”—which orders are presumed lawful in the absence of evidence to the contrary. United States v. Smith , 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972)). This construction is also supported by j u d i c i a l d e c i s i o n s . S e e U n i t e d S t a t e s v . W i l s o n , 6 M . J . 2 1 4 (C.M.A. 1979); United States v. Clansey, supra; United States v. Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952); United States v. Delgado, supra. Cf. United States v. Mackie , 16 U.S.C.M.A. 14, 36 C.M.R. 170 (1966); United States v. Gray, supra. But see United States v. Rozier , 1 M.J. 469 (C.M.A. 1976). This construc- tion also avoids unnecessary litigation of a collateral issue and eliminates the necessity for the introduction of uncharged miscon- duct, except when the door is opened by the defense. Cf. United States v. Yerger, supra; United States v. Mackie, supra. 1991 Amendment: Subparagraph b(4) was amended by adding an aggravating element of post-trial confinement to invoke in- creased punishment for escapes from post-trial confinement. c. Explanation. (1) Resisting apprehension. (a) Apprehension. This subparagraph is taken from Article 7. (b) Authority to apprehend. See Analysis, R.C.M. 302(b). The last two sentences are based on paragraph 57 a of MCM, 1969 (Rev.); United States v. Carson, supra. ( c ) N a t u r e o f t h e r e s i s t a n c e . T h i s s u b p a r a g r a p h i s t a k e n from paragraph 174 a of MCM, 1969 (Rev.). ( d ) M i s t a k e . T h i s s u b p a r a g r a p h i s t a k e n f r o m p a r a g r a p h 174a of MCM, 1969 (Rev.). See also United States v. Nelson , 17 U.S.C.M.A. 620, 38 C.M.R. 418 (1968). ( e ) I l l e g a l a p p r e h e n s i o n . T h e f i r s t s e n t e n c e o f t h i s s u b - paragraph is taken from paragraph 174 a of MCM, 1969 (Rev.). Although such a rule is not without criticism, see United States v. Lewis, 7 M.J. 348 (C.M.A. 1979); United States v. Moore , 483 F.2d 1361, 1364 (9th Cir.1973), it has long been recognized in military and civilian courts. John Bad Elk v. United States , 177 U.S. 529 (1900); paragraph 174 a of MCM, 1951. Cf. paragraph 157 of MCM (Army), 1949; MCM (AF), 1949; paragraph 139 of MCM, 1928; W. Winthrop, Military Law and Precedents 122 (2d ed. 1920 reprint). (Before 1951 resisting apprehension was not specifically prohibited by the Articles of War. Earlier references are to breaking arrest or escape from confinement.) The second sentence has been added to make clear that the issue of legality of an apprehension (e.g., whether based on prob- able cause or otherwise in accordance with requirements for legal sufficiency; see R.C.M. 302(e)) is not in issue until raised by the defense. United States v. Wilson , and United States v. Clansey , both supra. Cf. United States v. Smith , 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972). See also Analysis, paragraph 19b. The presump- tion is a burden assigning device; it has no evidentiary weight once the issue is raised. Because the issue of legality is not an element, and because the prosecution bears the burden of es- tablishing legality when the issue is raised, the problems of Mul- laney v. Wilbur, 421 U.S. 684 (1975) and Turner v. United States , 396 U.S. 398 (1970) are not encountered. Cf. Patterson v. New York, 432 U.S. 197 (1977). The third sentence is based on United States v. Carson, supra. (2) Breaking arrest. (a) Arrest. This subparagraph has been added for clarity. (b) Authority to order arrest. See Analysis, R.C.M. 304(b); R.C.M. 1101; and paragraph 2, Part V. (c) Nature of restraint imposed by arrest. This subparagraph is based on paragraph 174 b of MCM, 1969 (Rev.). See also Analysis, paragraph 19 b. (d) Breaking. This subparagraph is based on paragraph 174 b of MCM, 1969 (Rev.). (e) Illegal arrest. The first sentence in this subparagraph is based on paragraph 174 b of MCM, 1969 (Rev.). The second sentence has been added to clarify that legality of an arrest (e.g., whether based on probable cause or based on legally sufficient nonjudicial punishment or court-martial sentence) is not in issue A23-7 Pun. Art. 95ANALYSIS OF PUNITIVE ARTICLES
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until raised by the defense. See Analysis, paragraphs 19 b and 19c(1)(e). The third sentence is based on United States v. Carson, supra. (3) Escape from custody. ( a ) C u s t o d y . T h i s s u b p a r a g r a p h i s t a k e n f r o m p a r a g r a p h 174d of MCM, 1969 (Rev.). As to the distinction between escape from custody and escape from confinement, see United States v. Ellsey, 16 U.S.C.M.A. 455, 37 C.M.R. 75 (1966). But see United States v. Felty , 12 M.J. 438 (C.M.A. 1982). ( b ) A u t h o r i t y t o a p p r e h e n d . S e e A n a l y s i s , p a r a g r a p h 19c(1)(b). (c) Escape. This cross-reference is based on paragraph 174 c of MCM, 1969 (rev.). (d) Illegal custody. The first sentence in this subparagraph is based on paragraph 174 b of MCM, 1969 (Rev.). The second sentence has been added to clarify that legality of custody (e.g., whether based on probable cause) is not in issue until raised by the defense. See Analysis, paragraphs 19 b and 19 c(1)(e). The third sentence is based on United States v. Carson, supra. (4) Escape from confinement. (a) Confinement. See Article 9(a). See also Analysis, R.C.M. 305; R.C.M. 1101; and paragraph 5 c, Part V. 1991 Amendment: Subparagraph c(4)(a) was amended to spec- ify that escape from post-trial confinement is subject to increased punishment. (b) Authority to order confinement. See Analysis, R.C.M. 30 4(b); R.C.M. 1101; and paragraph 2, Part V. (c) Escape. This subparagraph is based on paragraph 174 c of MCM, 1969 (Rev.). See also United States v. Maslanich , 13 M.J. 611 (A.F.C.M.R. 1982). ( d ) S t a t u s w h e n t e m p o r a r i l y o u t s i d e c o n f i n e m e n t f a c i l i t y . This subparagraph is based on United States v. Silk , 37 C.M.R. 523 (A.B.r. 1966); United States v. Sines , 34 C.M.R. 716 (N.B.R. 1964). (e) Legality of confinement. This subparagraph is based on 174a of MCM, 1969 (Rev.). The second sentence has been added to clarify that legality of confinement (e.g., whether based on probable cause or otherwise in accordance with requirements for legal sufficiency) is not in issue until raised by the defense. See Analysis, paragraphs 19 b and 19 c(1)(e). The third sentence is based on United States v. Carson, supra. 1991 Amendment: Subparagraphs e and f were amended to provide increased punishment for escape from post-trial confine- ment. The increased punishment reflects the seriousness of the offense and is consistent with other federal law. See 18 U.S.C. 751(a). 1998 Amendment: Subparagraphs a, b, c, and f were amended to implement the amendment to 10 U.S.C. §895 (Article 95, UCMJ) contained in section 1112 of the National Defense Au- thorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 461 (1996). The amendment proscribes fleeing from apprehension without regard to whether the accused otherwise resisted apprehension. The amendment responds to the Court of Appeals for the Armed Forces decisions in United States v. Har- ris, 29 M.J. 169 (C.M.A. 1989), and United States v. Burgess , 32 M.J. 446 (C.M.A. 1991). In both cases, the court held that resist- ing apprehension does not include fleeing from apprehension, contrary to the then-existing explanation in Part IV, paragraph 19c.(1)(c), MCM, of the nature of the resistance required for resisting apprehension. The 1951 and 1969 Manuals for Courts- Martial also explained that flight could constitute resisting appre- hension under Article 95, an interpretation affirmed in the only early military case on point, United States v. Mercer , 11 C.M.R. 812 (A.F.B.R. 1953). Flight from apprehension should be ex- pressly deterred and punished under military law. Military person- nel are specially trained and routinely expected to submit to lawful authority. Rather than being a merely incidental or reflex- ive action, flight from apprehension in the context of the armed forces may have a distinct and cognizable impact on military discipline. 20. Article 96—Releasing prisoner without proper authority c. Explanation. This paragraph is based on paragraph 175 of MCM, 1969 (Rev.); United States v. Johnpier , 12 U.S.C.M.A. 90, 30 C.M.R. 90 (1961). Subparagraphs (1)(c) and (d) have been modified to conform to rules elsewhere in this Manual and re- stated for clarity. 21. Article 97—Unlawful detention c. Explanation. This paragraph is based on paragraph 176 of M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . J o h n s o n , 3 M . J . 3 6 1 (C.M.A. 1977). The explanation of the scope of Article 97 is new and results from Johnson and the legislative history of Article 97 cited therein. Id. at 363 n.6. 22. Article 98—Noncompliance with procedural rules c. Explanation. This paragraph is taken from paragraph 177 of MCM, 1969 (Rev.). e. Maximum punishment. The maximum punishment for inten- tional failure to enforce or comply with provisions of the Code has been increased from that specified in paragraph 127 c of MCM, 1969 (Rev.) to more accurately reflect the seriousness of this offense. See generally 18 U.S.C. § 1505, the second para- graph of which prohibits acts analogous to those prohibited in Article 98(2). 23. Article 99—Misbehavior before the enemy c. Explanation. This paragraph is based on paragraphs 178 and 1 8 3 a o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . S p e r l a n d , 1 U.S.C.M.A. 661, 5 C.M.R. 89 (1952) (discussion of “before or in t h e p r e s e n c e o f t h e e n e m y ” ) ; U n i t e d S t a t e s v . P a r k e r , 3 U.S.C.M.A. 541, 13 C.M.R. 97 (1953) (discussion of “running away”); United States v. Monday , 36 C.M.R. 711 (A.B.R. 1966), pet. denied , 16 U.S.C.M.A. 659, 37 C.M.R. 471 (1966) (discus- sion of “the enemy”) ( see also United States v. Anderson , 17 U.S.C.M.A. 588, 38 C.M.R. 386 (1968)); United States v. Yar- borough, 1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952) (discussion of “fear”); United States v. Presley , 18 U.S.C.M.A. 474, 40 C.M.R. 186 (1969); United States v. King , 5 U.S.C.M.A. 3, 17 C.M.R. 2 (1954) (discussion of illness as a defense to a charge of coward- ice); United States v. Terry , 36 C.M.R. 756 (N.B.R. 1965), aff’d 16 U.S.C.M.A. 192, 36 C.M.R. 348 (1966) (discussion of “false alarm”); United States v. Payne , 40 C.M.R. 516 (A.B.R. 1969); A23-8 Pun. Art. 95 APPENDIX 23
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pet. denied , 18 U.S.C.M.R. 327 (1969) (discussion of failure to do utmost). 24. Article 100—Subordinate compelling surrender c. Explanation. This paragraph is taken from paragraph 179 of MCM, 1969 (Rev.). 25. Article 101—Improper use of countersign c. Explanation. This paragraph is based on paragraph 180 of MCM, 1969 (Rev.). 26. Article 102—Forcing a safeguard c. Explanation. This paragraph is taken from paragraph 181 of MCM, 1969 (Rev.). Note that a “time of war” need not exist for t h e c o m m i s s i o n o f t h i s o f f e n s e . S e e H e a r i n g s o n H . R . 2 4 9 8 Before a Subcomm. of the House Comm. on Armed Services , 81st Cong., 1st Sess. 1229 (1949). See also United States v. Anderson , 17 U.S.C.M.A. 588, 38 C.M.R. 386 (1968) (concerning a state of belligerency short of formal war). 27. Article 103—Captured or abandoned property c. Explanation. This paragraph is taken from paragraph 182 of MCM, 1969 (Rev.). e. Maximum punishment. The maximum punishments based on value have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100), only two are used. This is simpler and conforms more closely to the division between felony and misde- meanor penalties contingent on value in property offenses in civilian jurisdictions. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). The amendment also adds the phrase “or any firearm or explosive” as an additional criterion. This is because, regardless of the intrinsic value of such items, the threat to the community is substantial when such items are wrongfully bought, sold, traded, dealt in or disposed. 28. Article 104—Aiding the enemy c. Explanation. This paragraph is based on paragraph 183 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . O l s o n , 7 U . S . C . M . A . 4 6 0 , 2 2 C . M . R . 2 5 0 ( 1 9 5 7 ) ; U n i t e d S t a t e s v . Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956); United States v. Dickenson , 6 U.S.C.M.A. 438, 20 C.M.R. 154 (1955). 29. Article 105—Misconduct as a prisoner c. Explanation. This paragraph is based on paragraph 184 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B a t c h e l o r , 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956); United States v. Di- ckenson, 7 U.S.C.M.A. 438, 20 C.M.R. 154 (1955). 30. Article 106—Spies c. Explanation. This paragraph is taken from paragraph 185 of MCM, 1969 (Rev.). See generally W. Winthrop, Military Law and Precedents 766–771 (2d ed. 1920 reprint). Subparagraphs (4) and (6)(b) are also based on Annex to Hague Convention No. IV, Respecting the law and customs of war on land, Oct. 18, 1907, Arts. XXIX and XXXI, 36 Stat. 2303, T.S. No. 539, at 33. 30a. Article 106a—Espionage Article 106a was added to the UCMJ in the Department of Defense Authorization Act, 1986, Pub.L. No. 99–145, § 534, 99 Stat. 583, 634–35 (1985). c. Explanation. The explanation is based upon H.R. Rep. No. 235, 99th Cong., 1st Sess. (1985), containing the statement of conferees with respect to the legislation establishing Article 106a. See also 1985 U.S. Code Cong. & Ad. News 472, 577–79. 1995 Amendment: This subparagraph was amended to clarify that the intent element of espionage is not satisfied merely by proving that the accused acted without lawful authority. Article 106a, Uniform Code of Military Justice. The accused must have acted in bad faith. United States v. Richardson , 33 M.J. 127 (C.M.A. 1991); see Gorin v. United States , 312 U.S. 19, 21 n.1 (1941). 31. Article 107—False official statements c. Explanation. (1) Official documents and statements. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.); United States v. Cummings, 3 M.J. 246 (C.M.A. 1977). See also United States v. Collier, 23 U.S.C.M.A. 713, 48 C.M.R. 789 (1974) (regarding voluntary false statement to military police). (2) Status of victim. The first sentence of this subparagraph is based on United States v. Cummings, supra. The second sentence is based on United States v. Ragins , 11 M.J. 42 (C.M.A. 1981). (3) Intent to deceive. This subparagraph is based on paragraph 1 8 6 o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . H u t c h i n s , 5 U.S.C.M.A. 422, 18 C.M.R. 46 (1955). (4) Material gain. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.). (5) Knowledge that the document or statement was false. This subparagraph is based on the language of Article 107 and on United States v. Acosta , 19 U.S.C.M.A. 341, 41 C.M.R. 341 (1970), and clarifies— as paragraph 186 of MCM, 1969 (Rev.), did not— that actual knowledge of the falsity is necessary. See also United States v. DeWayne , 7 M.J. 755 (A.C.M.R. 1979); United States v. Wright , 34 C.M.R. 518 (A.B.R. 1963); United States v. Hughes , 19 C.M.R. 631 (A.F.B.R. 1955). 2002 Amendment: Subparagraph c(6), “Statements made during an interrogation,” was removed in light of questions raised by the Court of Appeals for the Armed Forces in United States v. Solis , 46 M.J. 31, 35 (C.A.A.F. 1997). In Solis, the court said sub- paragraph c(6) could be viewed as serving at least three different purposes. It could be (1) an expansive description of dicta with no intent to limit prosecutions; (2) protection for an accused against overcharging; or (3) guidance for the conduct of investigations. Subparagraph c(6) was never intended to establish either proce- dural rights for an accused or internal guidelines to regulate government conduct. Subparagraph (c)(6) was based upon United A23-9 Pun. Art. 107ANALYSIS OF PUNITIVE ARTICLES
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States v. Aronson , 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957); United States v. Washington , 9 U.S.C.M.A. 131, 25 C.M.R. 393 (1958) and United States v. Davenport , 9 M.J. 364 (C.M.A. 1980) and was intended merely to describe the rule developed in those cases that a false statement to a law enforcement agent, when made by a servicemember without an independent duty to speak, was not “official” and therefore not within the purview of Article 107. The subparagraph is removed because the position of the Court of Military Appeals in the three decisions noted above was abandoned in United States v. Jackson , 26 M.J. 377 (C.M.A. 1988) and the deleted paragraph no longer accurately describes the current state of the law. d. Maximum punishment. The maximum penalty for all offenses under Article 107 has been increased to include confinement for 5 years to correspond to 18 U.S.C. § 1001, the Federal civilian counterpart of Article 107. See United States v. DeAngelo , 15 U.S.C.M.A. 423, 35 C.M.R. 395 (1965). 32. Article 108—Military property of the United States—sale, loss, damage, destruction, or wrongful disposition c. Explanation. This paragraph is based on paragraph 187 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B e r n a c k i , 1 3 U.S.C.M.A. 641, 33 C.M.R. 173 (1963); United States v. Harvey , 6 M.J. 545 (N.C.M.R. 1978); United States v. Geisler , 37 C.M.R. 530 (A.B.R. 1966). The last sentence in subparagraph (c)(1) is based on United States v. Schelin , 15 M.J. 218 (C.M.A. 1983). 1986 Amendment: Subparagraph c(1) was amended to correct an ambiguity in the definition of military property. The previous l a n g u a g e “ m i l i t a r y d e p a r t m e n t ” i s s p e c i f i c a l l y d e f i n e d i n 1 0 U.S.C. 101(7) as consisting of the Department of the Army, Navy and Air Force. Article 1(8), UCMJ, however, defines “military” when used in the Code as referring to all the armed forces. Use of the term “military department” inadvertently excluded property owned or used by the Coast Guard. The subparagraph has been changed to return to the state of the law prior to 1984, as includ- ing the property of all the armed forces. See United States v. Geisler, 37 C.M.R. 530 (A.B.R. 1966); United States v. Schelin , 15 M.J. 218, 220 n.6 (C.M.A. 1983). d . L e s s e r i n c l u d e d o f f e n s e . S e e U n i t e d S t a t e s v . M i z n e r , 4 9 C.M.R. 26 (A.C.M.R. 1974). 1986 Amendment: Subparagraph d(1) was amended to include a lesser included offense previously omitted. See United States v. Rivers, 3 C.M.R. 564 (A.F.B.R. 1952) and 18 U.S.C. 641. Sub- paragraphs d(2) and (4) were amended to include lesser included offenses recognizing that destruction and damage of property which is not proved to be military may be a violation of Article 109. See United States v. Suthers , 22 C.M.R. 787 (A.F.B.R. 1956). e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in property offenses in civilian jurisdictions. The punishments are based on 18 U.S.C. § 1361. The maximum punishment for selling or wrongfully disposing of a firearm or explosive and for willfully damaging, destroying, or losing such property or suffering it to be lost, damaged, destroyed, sold, or wrongfully disposed of includes 10 years confinement regardless of the value of the item. The harm to the military in such cases is not simply the intrinsic value of the item. Because of their nature, special accountability and protective measures are employed to protect firearms or explosives against loss, damage, destruction, sale, and wrongful disposition. Such property may be a target of theft or other offenses without regard to its value. Therefore, to protect the Government’s special interest in such property, and the community against improper disposition, such property is treated the same as property of a higher value. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). Although the monetary amount affecting punishment in 18 U.S.C. § 1361, Government property or contracts, and 18 U.S.C. § 641, Public money, property or records, was increased from $100 to $1000 pursuant to section 60 6 of the Economic Espionage Act of 1996, P. L. No. 104-294, 110 Stat. 3488 (1996), a value of $500 was chosen to maintain deterrence, simplicity, and uniformity for the Manual’s property offenses. 33. Article 109—Property other than military property of the United States—waste, spoilage, or destruction c. Explanation. This paragraph is based on paragraph 188 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B e r n a c k i , 1 3 U.S.C.M.A. 641, 33 C.M.R. 173 (1963). e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100), only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in property offenses in civilian jurisdictions. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). f . S a m p l e s p e c i f i c a t i o n . S e e U n i t e d S t a t e s v . C o l l i n s , 1 6 U.S.C.M.A. 167, 36 C.M.R. 323 (1966), concerning charging damage to different articles belonging to different owners, which occurred during a single transaction, as one offense. 34. Article 110—Improper hazarding of vessel c. Explanation. This paragraph is based on paragraph 189 of MCM, 1969 (Rev.). See also United States v. Adams , 42 C.M.R. 911 (N.C.M.R. 1970), pet. denied , 20 U.S.C.M.A. 628 (1970); U n i t e d S t a t e s v . M a c L a n e , 3 2 C . M . R . 7 3 2 ( C . G . B . R . 1 9 6 2 ) ; United States v. Day , 23 C.M.R. 651 (N.B.R. 1957). A23-10 Pun. Art. 107 APPENDIX 23
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35. Article 111—Drunken or reckless driving a. Text. 2002 Amendment : Changes to this Article are contained in section 581 of the National Defense Authorization Act for Fiscal Year 2002, P.L. 107-107, 115 Stat. 1012 (2001). Additionally, this change defines the offense in terms of what alcohol concentration level is prohibited by operation of State law or as otherwise provided. Also, the text reflects an amendment to section 911 of title 10, United States Code, in section 552 of the National Defense Authorization Act for Fiscal Year 2004 to re- store the blood alcohol concentration limit that defines the offense of drunken operation of a vehicle, aircraft, or vessel in the United States to the limit that existed before the passage of section 581 of the National Defense Authorization Act for Fiscal Year 2002. Before passage of that Act, an alcohol concentration level in the person’s blood or breath of 0.10 grams “or more” of alcohol per 100 milliliters of blood (or 210 liters of breath) was a punishable offense. By relying on the term “blood alcohol content limit,” as defined to be the maximum permissible concentration to operate a vehicle, aircraft, or vessel, section 581 resulted in eliminating the level of 0.10 grams as a prohibited level of alcohol concentration and raised the definition of the offense to some level in excess of 0.10 grams. 2007 Amendment : Changes to this Article are contained in section 552 of the National Defense Authorization Act for Fiscal Year 2004, P.L. 108 136, 117 Stat.1392 (2003), and supersede any changes to Paragraph 35 by Executive Order 13387 (14 October 2005). b. Elements. The aggravating element of injury is listed as sug- gested by sample specification number 75 and the Table of Maxi- mum Punishments at 25–13 and A6–13 of MCM, 1969 (Rev.). The wording leaves it possible to plead and prove that the ac- cused was injured as a result of the accused’s drunken driving and so make available the higher maximum punishment. This result recognizes the interest of society in the accused’s resulting unavailability or impairment for duty and the costs of medical treatment. Paragraph 190 (Proof, (c)) of MCM, 1969 (Rev.) used “victim,” the ambiguity of which might have implied that injury to the accused would not aggravate the maximum punishment. Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised Edition) DA PAM 27–2, at 28–10, does not sug- gest that the drafters intended such a result. 2007 Amendment : Paragraph b(2)(c) is amended for consis- tency with the changes in statutory text contained in section 552 of the National Defense Authorization Act for Fiscal Year 2004, P.L. 108 136, 117 Stat. 1392 (2003), and supersedes any changes to Paragraph 35 by Executive Order 13387 (14 October 2005). c. Explanation. This paragraph is taken from paragraph 190 of MCM, 1969 (Rev.). See also United States v. Bull , 3 U.S.C.M.A. 6 3 5 , 1 4 C . M . R . 5 3 ( 1 9 5 4 ) ( d r u n k e n n e s s ) ; U n i t e d S t a t e s v . Eagleson, 3 U.S.C.M.A. 685, 14 C.M.R. 103 (1954) (reckless); United States v. Grossman , 2 U.S.C.M.A. 406, 9 C.M.R. 36 (1953) (separate offenses). 1 9 9 1 A m e n d m e n t : T h e o r d e r o f t h e l a s t a n d p e n u l t i m a t e phrases was reversed to clarify that “so as to cause the particular vehicle to move” modifies only “the manipulation of its controls” and not the “setting of its motive power in action.” This change makes clear that merely starting the engine, without movement of the vehicle, is included within the definition of “operating.” e. Maximum Punishment. The maximum authorized confinement for drunk driving resulting in injury was increased from 1 year to 1 8 m o n t h s . T h i s i n c r e a s e r e f l e c t s t h e s a m e c o n c e r n f o r t h e s e r i o u s n e s s o f t h e m i s c o n d u c t a s t h a t w h i c h h a s , b y c u r r e n t reports, motivated almost half the states to provide more stringent responses. 1 9 8 6 A m e n d m e n t : S u b p a r a g r a p h s b ( 2 ) , c ( 3 ) , a n d f w e r e amended to implement the amendment to Article 111 contained in the Anti-Drug Abuse Act of 1986, tit. III, § 3055, Pub.L. No. 99–570, enacted 27 October 1986, proscribing driving while im- paired by a substance described in Article 112a(b). This amend- ment codifies prior interpretation of the scope of Article 111, as previously implemented in paragraph 35c(3). 1995 Amendment: This paragraph was amended pursuant to the changes to Article 111 included in the National Defense Authori- zation Act for Fiscal Year 1993, Pub. L. No. 102–484, 106 Stat. 2315, 2506 (1992). New subparagraphs c(2) and (3) were added to include vessels and aircraft, respectively. Paragraph 35 was also amended to make punishable actual physical control of a vehicle, aircraft, or vessel while drunk or impaired, or in a reck- less fashion, or while one’s blood or breath alcohol concentration is in violation of the described per se standard. A new sub- paragraph c(5) was added to define the concept of actual physical control. This change allows drunk or impaired individuals who demonstrate the capability and power to operate a vehicle, air- craft, or vessel to be apprehended if in the vehicle, aircraft, or vessel, but not actually operating it at the time. The amendment also clarifies that culpability extends to the person operating or exercising actual physical control through the agency of another ( e.g., the captain of a ship giving orders to a helmsman). The amendment also provides a blood/alcohol blood/ breath concentration of 0.10 or greater as a per se standard for illegal intoxication. The change will not, however, preclude pros- ecution where no chemical test is taken or even where the results of the chemical tests are below the statutory limits, where other evidence of intoxication is available. See United States v. Ghol- son, 319 F. Supp. 499 (E.D. Va. 1970). A new paragraph c(9) was added to clarify that in order to show that the accused caused personal injury, the government must prove proximate causation and not merely cause–in–fact. Accord United States v. Lingenfelter , 30 M.J. 302 (C.M.A. 1990). The definition of “proximate cause” is based on United States v. Romero, 1 M.J. 227, 230 (C.M.A. 1975). Previous subparagraph c(2) is renumbered c(4). Previous subparagraphs c(3)–c(5) are renumbered c(6)–c(8), respectively, and previous subparagraph c(6) is renumbered c(10). S u b p a r a g r a p h s d ( 1 ) a n d ( 2 ) a r e r e d e s i g n a t e d d ( 2 ) ( b ) a n d d(2)(c). The new d(2)(a) adds Article 110 (improper hazarding of a vessel) as a lesser included offense of drunken operation or actual physical control of a vessel. The new d(1) adds Article 110 (improper hazarding of a vessel) as a lesser included offense of reckless or wanton or impaired operation or physical control of a vessel. 36. Article 112—Drunk on duty c. Explanation. This paragraph is based on paragraph 191 of M C M , 1 9 6 9 ( R e v . ) . T h e d i s c u s s i o n o f d e f e n s e s i s b a s e d o n United States v. Gossett , 14 U.S.C.M.A. 305, 34 C.M.R. 85 A23-11 Pun. Art. 112ANALYSIS OF PUNITIVE ARTICLES
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(1963); United States v. Burroughs , 37 C.M.R. 775 (C.G.B.R. 1966). 37. Article 112a—Wrongful use, possession, etc., of controlled substances Introduction. This paragraph is based on Article 112a ( see Military Justice Act of 1983, Pub.L. No. 98–209, § 8, 97 Stat. 1393 (1983)), and on paragraphs 127 and 213, and Appendix 6c of MCM, 1969 (Rev.), as amended by Exec. Order No. 12383 (Sep. 23, 1982). Paragraphs 127 and 213 and Appendix 6c of MCM, 1969 (Rev.) are consistent with Article 112a. See S.Rep. No. 53, 98th Cong., 1st Sess. 29 (1983). The only changes made by Article 112a in the former Manual paragraphs are: elimination of the third element under Article 134; substitution of barbituric acid for phenobarbital and secobar- bital (these are still specifically listed in subparagraph c), and inclusion of importation and exportation of controlled substances. The definition of “customs territory of the United States” is based on 21 U.S.C. § 951(a)(2) and on general headnote 2 to the Tariff Schedules of the United States. See 21 U.S.C. § 1202. See also H.R.Rep. No. 91–1444, 91st Cong., 2d Sess. 74 (1970). The maximum punishments for importing or exporting a controlled substance are based generally on 21 U.S.C. § 960. See also 21 U.S.C. §§ 951–53. The definition of “missile launch facility” has been added to clarify that the term includes not only the actual situs of the missile, but those places directly integral to the launch of the missile. The following is an analysis of Exec. Order No. 12383 (Sep. 23,1982): Section 1 (now subparagraph e) amends paragraph 127 c, Sec- tion A of the MCM, 1969 (Rev.). This amendment of the Table of Maximum Punishments provides a completely revised system of punishments for contraband drug offenses under Article 134. The punishments under 21 U.S.C. §§ 841 and 844 were used as a benchmark for punishments in this paragraph. Thus, the maxi- mum penalty for distribution or possession with intent to distrib- ute certain Schedule I substances under 21 U.S.C. § 841—15 years imprisonment—is the same as the highest maximum pun- ishment under paragraph 127 c (except when the escalator clause is triggered, see analysis of section 2 infra.) Within the range under the 15 year maximum, the penalties under paragraph 127 c are generally somewhat more severe than those under 21 U.S.C. §§ 841 and 844. This is because in the military any drug offense is serious because of high potential for adversely affecting readiness and mission performance. See gen- erally Schlesinger v. Councilman , 420 U.S. 738, 760 n.34 (1975); United States v. Trottier , 9 M.J. 337 (C.M.A. 1980). The availa- bility of contraband drugs, especially in some overseas locations, the ambivalence toward and even acceptance of drug usage in some segments of society, especially among young people, and the insidious nature of drug offenses all require that deterrence play a substantial part in the effort to prevent drug abuse by servicemembers. The following sentence enhancement provisions in the United States Code were not adopted: (1) the recidivism provisions in 21 U.S.C. §§ 841(b), 844(a), and 845(b), which either double or triple the otherwise prescribed maximum penalty; and (2) the provision in 21 U.S.C. § 845(a) which doubles the maximum penalty for distribution of a controlled substance to a person under the age of 21. (The latter provision would probably apply to a high percentage of distribution offenses in the armed forces, given the high proportion of persons in this age group in the armed forces.) These special provisions were not adopted in favor of a simpler, more uniform punishment system. The overall result is an absence of the higher punishment extremes of the Federal system, while some of the offenses treated more leniently in the lower end of the scale in the Federal system are subject to poten- tially higher punishments in the military, for the reasons stated in the preceding paragraph. There are no mandatory minimum sen- tences for any drug offense. See Article 56. The expungement procedure in 21 U.S.C. § 844(b) and (c) is unnecessary and inappropriate for military practice. Alternatives to prosecution for drug offenses already exist. See, e.g. , Article 15. The use of such alternatives is properly a command preroga- tive. Section 2 (now the last paragraph of subparagraph e) amends paragraph 127c Section B by adding an escalator clause to pro- vide for certain special situations, unique to the military, in which drug involvement presents an even greater danger than normal. See 37 U.S.C. § 310 concerning hostile fire pay zones. Section 3 (now subparagraphs b and c) amends paragraph 213, dealing with certain offenses under Article 134. Paragraph 213 g replaces the discussion of offenses involving some contraband drugs which was found in the last paragraph of paragraph 213 b of MCM, 1969 (Rev.). It was considered necessary to treat drug offenses more extensively in the Manual for Court-Martial be- cause of the significant incidence of drug offenses in the military and because of the serious effect such offenses have in the mili- tary environment. It was also necessary to provide a comprehen- s i v e t r e a t m e n t o f d r u g s , w i t h a c o m p l e t e s e t o f m a x i m u m punishments, in order to eliminate the confusion, disruption, and disparate treatment of some drug offenses among the services in the wake of United States v. Courtney , 1 M.J. 438 (C.M.A. 1976); United States v. Jackson , 3 M.J. 101 (C.M.A. 1977); United States v. Hoesing , 5 M.J. 355 (C.M.A. 1978); United States v. Guilbault, 6 M.J. 20 (C.M.A. 1978); United States v. Thurman , 7 M.J. 26 (C.M.A. 1979). (1) Controlled substance. The list of drugs specifically punisha- ble under Article 134 has been expanded to cover the substances which are, according to studies, most prevalent in the military community. See, e.g. , M. Burt, et al. Highlights from the World- wide Survey of Nonmedical Drug Use and Alcohol Use Among Military Personnel: 1980 . In addition, the controlled substances which are listed in Schedules I through V of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (codified at 21 U.S.C. § 801 et seq. ) as amended are incorporated. The most commonly abused drugs are listed separately so that it will be unnecessary to refer to the controlled substances list, as modified by the Attorney General in the Code of Federal Regulations, in most cases. Most commanders and some legal offices do not have ready access to such authorities. (2) Possess. The definition of possession is based upon United States v. Aloyian , 16 U.S.C.M.A. 333, 36 C.M.R. 489 (1966) and paragraph 4–144, Military Judges’ Benchbook , DA PAM 27–9 ( M a y 1 9 8 2 ) . S e e a l s o U n i t e d S t a t e s v . W i l s o n , 7 M . J . 2 9 0 (C.M.A. 1979) and cases cited therein concerning the concept of constructive possession. With respect to the inferences described A23-12 Pun. Art. 112 APPENDIX 23
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i n t h i s s u b p a r a g r a p h a n d s u b p a r a g r a p h ( 5 ) W r o n g f u l n e s s , s e e U n i t e d S t a t e s v . A l v a r e z , 1 0 U . S . C . M . A . 2 4 , 2 7 C . M . R . 9 8 (1958); United States v. Nabors , 10 U.S.C.M.A. 27, 27 C.M.R. 10 1 (1958). It is important to bear in mind that distinction between inferences and presumptions. See United States v. Mahan , 1 M.J. 3 0 3 ( C . M . R . 1 9 7 6 ) . S e e a l s o U n i t e d S t a t e s v . B a y l o r , 1 6 U.S.C.M.A. 502, 37 C.M.R. 122 (1967). (3) Distribute. This subparagraph is based on 21 U.S.C. § 802(8) and (11). See also E. Devitt and C. Blackmar, 2 Federal Jury Practice and Instructions , § 58.03 (3d ed. 1977). “Distribution” replaces “sale” and “transfer.” This conforms with Federal practice, see 21 U.S.C. § 841(a), and will simplify military practice by reducing pleading, proof, and associated mul- tiplicity problems in drug offenses. See, e.g., United States v. Long, 7 M.J. 342 (C.M.A. 1979); United States v. Maginley , 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963). Evidence of sale is not necessary to prove the offense of distributing a controlled sub- stance. See United States v. Snow , 537 F.2d 1166 (4th Cir. 1976); United States v. Johnson , 481 F.2d 645 (5th Cir. 1973). Thus, the d e f e n s e o f “ a g e n c y ” , s e e U n i t e d S t a t e s v . F r u s c e l l a , 2 1 U.S.C.M.A. 26, 44 C.M.R. 80 (1971), no longer applies in the military. Cf. United States v. Snow, supra; United States v. Pruitt , 487 F.2d 1241 (8th Cir. 1973); United States v. Johnson, supra (“procuring agent” defense abolished under 21 U.S.C. § 801 et seq.). Evidence of sale is admissible, of course, on the merits as “part and parcel” of the criminal transaction ( see United States v. Stokes, 12 M.J. 229 (C.M.A. 1982); cf. United States v. Johnson, supra; see also Mil. R. Evid. 404(b)), or in aggravation ( see paragraph 75b(4) of MCM, 1969 (Rev.); see also United States v. Vickers, 13 M.J. 403 (C.M.A. 1982)). (4) Manufacture. This definition is taken from 21 U.S.C. § 80 2(14). The exception in 21 U.S.C. § 802(14) is covered in sub- paragraph (5). (5) Wrongfulness. This subparagraph is based on the last para- graph of paragraph 213 b of MCM, 1969 (Rev.). Cf. 21 U.S.C. § 822(c). See also United States v. West , 15 U.S.C.M.A. 3, 34 C.M.R. 449 (1964); paragraphs 4–144 and 145, Military Judges’ Benchbook, DA PAM 27–9 (May 1982). It is not intended to perpetuate the holding in United States v. Rowe , 11 M.J. 11 (C.M.A. 1981). (6) Intent to distribute. This subparagraph parallels Federal law which allows for increased punishment for drug offenses with an intent to distribute. 21 U.S.C. §841(a)(1). The discussion of cir- cumstances from which an inference of intent to distribute may be inferred is based on numerous Federal cases. See, e.g., United States v. Grayson , 625 F.2d 66 (5th Cir. 1980); United States v. Hill, 589 F.2d 1344 (8th Cir. 1979), cert. denied , 442 U.S. 919 (1979); United States v. Ramirez-Rodriquez , 552 F.2d 883 (9th Cir. 1977); United States v. Blake , 484 F.2d 50 (8th Cir. 1973); cert. denied , 417 U.S. 949 (1974). Cf. United States v. Mather , 465 F.2d 1035 (5th Cir.1972), cert. denied, 409 U.S. 1085 (1972). Possession of a large amount of drugs may permit an inference but does not create a presumption of intent to distribute. See Turner v. United States , 396 U.S. 398 (1970); United States v. Mahan, 1 M.J. 303 (C.M.A. 1976). (7) Certain amount. This subparagraph is based on United States v. Alvarez , 10 U.S.C.M.A. 24, 27 C.M.R. 98 (1958); United States v. Brown , 45 C.M.R. 416 (A.C.M.R. 1972); United States v . B u r n s , 3 7 C . M . R . 9 4 2 ( A . F . B . R . 1 9 6 7 ) ; U n i t e d S t a t e s v . Owens, 36 C.M.R. 909 (A.B.R. 1966). 1993 Amendment. Paragraph c was amended by adding new paragraphs (10) and (11). Subparagraph (10) defines the term “use” and delineates knowledge of the presence of the controlled substance as a required component of the offense. See United States v. Mance , 26 M.J. 244 (C.M.A. 1988). The validity of a p e r m i s s i v e i n f e r e n c e o f k n o w l e d g e i s r e c o g n i z e d . S e e U n i t e d States v. Ford , 23 M.J. 331 (C.M.A. 1987); United States v. Harper, 22 M.J. 157 (C.M.A. 1986). Subparagraph (11) precludes an accused from relying upon lack of actual knowledge when such accused has purposefully avoided knowledge of the presence or identity of controlled substances. See United States v. Mance, supra, (Cox, J., concurring). When an accused deliberately avoids knowing the truth concerning a crucial fact (i.e., presence or identity) and there is a high probability that the crucial fact does exist, the accused is held accountable to the same extent as one who has actual knowledge. See United States v. Newman , 14 M.J. 474 (C.M.A. 1983). Subsection (11) follows federal authority which equates actual knowledge with deliberate ignorance. See United States v. Ramsey , 785 F.2d 184 (7th Cir. 1986), cert. denied, 476 U.S. 1186 (1986). Section 4 (now subparagraph f) amends Appendix 6c. The new s a m p l e s p e c i f i c a t i o n s a r e b a s e d o n s a m p l e s p e c i f i c a t i o n s 1 4 4 through 146 found in Appendix 6c of the MCM, 1969 (Rev.), as modified to reflect the new comprehensive drug offense provi- sion. Section 5 provides an effective date for the new amendments. Section 6 requires the Secretary of Defense to transmit these amendments to Congress. 38. Article 113—Misbehavior of sentinel or lookout c. Explanation. Subparagraphs (1), (2), and (3) are based on paragraph 192 of MCM, 1969 (Rev.). Subparagraph (4) is based on United States v. Seeser , 5 U.S.C.M.A. 472, 18 C.M.R. 96 (1955); paragraph 192 of MCM, 1969 (Rev.); paragraph 174 of MCM (Army), 1949; paragraph 174 of MCM (AF), 1949. Sub- p a r a g r a p h ( 6 ) i s b a s e d o n U n i t e d S t a t e s v . W i l l i a m s , 4 U.S.C.M.A. 69, 15 C.M.R. 69 (1954); United States v. Cook , 31 C.M.R. 550 (A.F.B.R. 1961). See also United States v. Getman , 2 M.J. 279 (A.F.C.M.R. 1976). 39. Article 114—Duelling c. Explanation. This paragraph is based on paragraph 193 of MCM, 1969 (Rev.). The explanation of conniving at fighting a duel was modified to reflect the requirement for actual knowledge and to more correctly reflect the term connive. f. Sample specification. The sample specification for conniving at fighting a duel was redrafted to more accurately reflect the nature of the offense. 40. Article 115—Malingering c. Explanation. This paragraph is based on paragraph 194 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K i s n e r , 1 5 U . S . C . M . A . 1 5 3 , 3 5 C . M . R . 1 2 5 ( 1 9 6 4 ) ; U n i t e d S t a t e s v . Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (1959); United States v. Kersten , 4 M.J. 657 (A.C.M.R. 1977). A23-13 Pun. Art. 115ANALYSIS OF PUNITIVE ARTICLES
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d . L e s s e r i n c l u d e d o f f e n s e s . S e e U n i t e d S t a t e s v . T a y l o r , 1 7 U.S.C.M.A. 595, 38 C.M.R. 393 (1968). e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t s w e r e changed to reflect the greater seriousness of malingering in war or other combat situations and to add a greater measure of deter- rence in such cases. 41. Article 116—Riot or breach of peace c. Explanation. This paragraph is based on paragraph 195 of MCM, 1969 (Rev.) and United States v. Metcalf , 16 U.S.C.M.A. 153, 36 C.M.R. 309 (1966). The reference to “use of vile or abusive words to another in a public place” contained in para- graph 195 b of MCM, 1969 (Rev.) has been replaced by the language contained in the fourth sentence of subparagraph (2) since the former language was subject to an overly broad applica- tion. See Gooding v. Wilson , 405 U.S. 518 (1972). f. Sample specifications. Riot— see United States v. Randolf , 49 C.M.R. 336 (N.C.M.R. 1974); United States v. Brice , 48 C.M.R. 368 (N.C.M.R. 1973). 42. Article 117—Provoking speeches or gestures c. Explanation. Subparagraph (1) is based on paragraph 196 of MCM, 1969 (Rev.); United States v. Thompson , 22 U.S.C.M.A. 88, 46 C.M.R. 88 (1972). See generally Gooding v. Wilson , 405 U . S . 5 1 8 ( 1 9 7 2 ) ; U n i t e d S t a t e s v . H u g h e n s , 1 4 C . M . R . 5 0 9 (N.B.R. 1954). Subparagraph (2) is based on the language of A r t i c l e 1 1 7 a n d U n i t e d S t a t e s v . B o w d e n , 2 4 C . M . R . 5 4 0 (A.F.B.R. 1957), pet. denied , 24 C.M.R. 311 (1957). See also United States v. Lacy , 10 U.S.C.M.A. 164, 27 C.M.R. 238 (1959). 1986 Amendment: The listing of “Article 134— indecent lan- guage” as a lesser included offense of provoking speeches was d e l e t e d . U n i t e d S t a t e s v . L i n y e a r , 3 M . J . 1 0 2 7 ( N . M . C . M . R . 1977), held that provoking speeches is actually a lesser included offense of indecent language. Also, indecent language carries a greater maximum punishment than provoking speeches, which would be unusual for a lesser offense. e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t w a s i n - creased from that set forth in paragraph 127 c of MCM, 1969 (Rev.) to more accurately reflect the seriousness of the offense. 43. Article 118—Murder a. Text. 2012 Amendment: This statute was modified pursuant to sec- tion 541 of the National Defense Authorization Act for Fiscal Y e a r 2 0 1 2 , P . L . 1 1 2 - 8 1 , 3 1 D e c e m b e r 2 0 1 1 , t o c o n f o r m t o renamed sexual assault offenses in Article 120 and Article 120b. The changes took effect on 28 June 2012. b. Elements. Element (b) in (3), Act inherently dangerous to others, has been modified based on United States v. Hartley , 16 U.S.C.M.A. 249, 36 C.M.R. 405 (1966). 2007 Amendment: Paragraph (4) of the text and elements has been amended for consistency with the changes to Article 118 under Section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. See subsection (d) of Section 552. c. Explanation. This paragraph is based on paragraph 197 of MCM, 1969 (Rev.). Subparagraphs c(2)(b) is based on United States v. Sechler, 3 U.S.C.M.A. 363, 12 C.M.R. 119 (1953). As to subparagraph (c)(4)(A), see United States v. Vandenack , 15 M.J. 428 (C.M.A. 1983). Subparagraph c(4)(b) is based on United States v. Stokes , 6 U.S.C.M.A. 65, 19 C.M.R. 191 (1955). d. Lesser included offenses. As to Article 118(3), see United States v. Roa , 12 M.J. 210 (C.M.A. 1982). 1993 Amendment: The listed lesser included offenses of murder under Article 118(3) were changed to conform to the rationale of United States v. Roa , 12 M.J. 210 (C.M.A. 1982). Inasmuch as Article 118(3) does not require specific intent, attempted murder, voluntary manslaughter, assault with intent to murder and assault with intent to commit voluntary manslaughter are not lesser in- cluded offenses of murder under Article 118(3). 1995 Amendment: The word “others” was replaced by the word “another” in Article 118(3) pursuant to the National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102—484, 106 Stat. 2315, 2506 (1992). This change addresses the limited language previously used in Article 118(3) as identified in United States v. Berg , 30 M.J. 195 (C.M.A. 1990). 44. Article 119—Manslaughter b. Elements. 2 0 0 7 A m e n d m e n t : P a r a g r a p h ( 4 ) o f t h e e l e m e n t s h a s b e e n amended for consistency with the changes to Article 118 under Section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. See subsection (d) of Section 552. 2008 Amendment: Notes were included to add an element if the person killed was a child under the age of 16 years. 2010 Amendment: Paragraph (4) of the elements is corrected to properly reflect the 2007 Amendment, which corrected wording not included in the 2008 Amendment. c. Explanation. This paragraph is based on paragraph 198 of MCM, 1969 (Rev.). See also United States v. Moglia , 3 M.J. 216 (C.M.A. 1977); United States v. Harrison , 16 U.S.C.M.A. 484, 37 C.M.R. 104 (1967); United States v. Redding , 14 U.S.C.M.A. 242, 34 C.M.R. 22 (1963); United States v. Fox , 2 U.S.C.M.A. 465, 9 C.M.R. 95 (1953). e. Maximum punishment. 1 9 9 4 A m e n d m e n t . T h e a m e n d m e n t t o p a r a g r a p h 4 4 e ( 1 ) i n - creased the maximum period of confinement for voluntary man- slaughter to 15 years. The 10-year maximum confinement period was unnecessarily restrictive; an egregious case of voluntary man- slaughter may warrant confinement in excess of ten years. 1994 Amendment. The amendment to paragraph 44e(2) elimi- n a t e d t h e a n o m a l y c r e a t e d w h e n t h e m a x i m u m a u t h o r i z e d punishment for a lesser included offense of involuntary man- slaughter was greater than the maximum authorized punishment for the offense of involuntary manslaughter. For example, prior to the amendment, the maximum authorized punishment for the of- fense of aggravated assault with a dangerous weapon was greater than that of involuntary manslaughter. This amendment also facil- itates instructions on lesser included offenses of involuntary man- slaughter. See United States v. Emmons , 31 M.J. 108 (C.M.A. 1990). 2008 Amendment: The maximum confinement for voluntary manslaughter when the person killed was a child under the age of 16 years was increased to 20 years. 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for involuntary manslaughter when the person killed was a child under the age of 16 years was increased to 15 years. 44a. Article 119a—Death or injury of an unborn child c. Explanation. This and is based on Public Law 108-212, 18 U.S.C. § 1841 and 10 U.S.C. § 919a (Unborn Victims of Violence Act of 2004) enacted on 1 April 2004. 45. Article 120—Rape and sexual assault generally 2012 Amendment: This paragraph was substantially revised by section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011. Amendments contained in this section took effect on 28 June 2012. Sec. 541(f), P.L. 112-81. On 28 June 2012, a modified paragraph 45, “Rape and sexual assault generally,” replaced the 2007 version of para- graph 45, “Rape, sexual assault, and other sexual misconduct.” The analysis related to prior versions of Article 120 is located as follows: for offenses committed prior to 1 October 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28. The 2012 version of Article 120 revises the 2007 version by removing child sexual offenses and miscellaneous sexual miscon- duct from the statute (placing them in Articles 120b and 120c, respectively); addressing constitutional problems identified by the Court of Appeals for the Armed Forces; simplifying the statutory scheme of Article 120; and expanding the definition of “sexual act” to make the offense gender neutral. The FY12 NDAA failed to repeal Article 125, thus criminalizing forcible sodomy offenses under both Article 120 and Article 125. Future legislation will be sought to clarify that forcible sodomy offenses are properly en- compassed within Article 120. The drafting of changes to Article 120 began shortly after the 2007 amendments became effective based on issues revealed in trials. The effort was reinforced by the Defense Task Force on Sexual Assault in the Military (DTFSAMS) recommendations in December 2009 that Article 120 be reviewed because it was cumbersome and confusing and there were problems relating to the constitutionality of the affirmative defense of consent. In addition, the Court of Appeals for the Armed Forces ruled that the statutory burden shift to the accused in the 2007 version of Article 120 was unconstitutional and the subsequent burden shift to the government to disprove consent beyond a reasonable doubt once the accused had raised the affirmative defense of consent by a preponderance of the evidence resulted in a legal impossibility. United States v. Prather , 69 M.J. 338 (C.A.A.F. 2011); United States v. Medina , 69 M.J. 462 (C.A.A.F. 2011). a. Text. Rape: The offense of rape remains largely unchanged from the 2007 version. The primary difference in this revision is that rape by force is now rape by “unlawful” force. The word “unlawful” aligns the definition of force with Assault under Para- graph 54. This simplifies the treatment of the issue of consent. See United States v. Neal , 68 M.J. 289 (C.A.A.F. 2010). The victim’s manifestation of lack of consent is now direct evidence that must be considered by the trier of fact. Also, the word “commits” was substituted for “engages in” a sexual act to re- move any suggestion of reciprocal engagement in the act by the victim. Sexual Assault: The offense is renamed “Sexual Assault” from “Aggravated Sexual Assault” in the 2007 version because the term “aggravated” led to confusion due to the fact that there was no sexual act offense of lesser severity. The definition of sexual assault by causing bodily harm was clarified to note that any sexual act or contact without consent constitutes bodily harm. The new sexual assault offense was broadened to include situations when the sexual act was committed upon fraudulent representa- tion that the sexual act was for a medical purpose, or by inducing a belief that the accused was some other person. This covers “fraud in factum” situations previously covered by the pre-2007 version of Article 120. See United States v. Booker , 25 M.J. 114 (C.M.A. 1987). The new statute also clarifies previously confus- ing language from the 2007 version regarding the state of a victim’s consciousness by prohibiting a sexual act with a person who the accused knows or reasonably should know is sleeping, unconscious, or otherwise unaware that the sexual act is occur- ring. S e x u a l C o n t a c t o f f e n s e s : A g g r a v a t e d S e x u a l C o n t a c t a n d Abusive Sexual Contact remain significantly unchanged from the 2007 version of Article 120 except to substitute “commits” for “engages in” in accordance with the analysis above. Wrongful Sexual Contact is deleted because it is no longer necessary. Com- mitting a sexual act upon another person by causing bodily harm constitutes Sexual Assault under Article 120(b) if the bodily harm consists of any offensive touching, including the nonconsensual sexual act itself. Abusive Sexual Contact is intended to cover acts where the sexual contact was committed in the same manner as a sexual act. Therefore, if sexual contact constitutes “bodily harm” (any offensive touching), then it will be considered Abusive Sex- ual Contact. Defenses: The new Article 120 removes marriage as a defense to sexual assault offenses and removes the accused’s burden with respect to raising a mistake of fact defense, clarifying that the accused may raise any applicable defense under the UCMJ or RCMs. This allows an accused to raise a mistake of fact defense without the unworkable burden shift as noted in Prather. See United States v. Johnson , 54 M.J. 67, 69 (C.A.A.F. 2000) (quot- ing United States v. Greaves , 40 M.J. 432, 433 (C.M.A. 1994) (“as a general matter, consent ‘can convert what might otherwise be offense touching into nonoffensive touching’ and that ‘a rea- sonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of legal excuse.’”). Definitions: Definitions from the former Article 120(t) have been renumbered as Article 120(g) and modified. As modified, the definition of “sexual act” has been broadened to include penetration of the vulva, anus, or mouth by the penis, and pene- tration of the vulva, anus, or mouth by any other part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of a n y p e r s o n . T h e d e f i n i t i o n o f “ s e x u a l c o n t a c t ” h a s b e e n broadened to include touching any part of the body with the intent to arouse or gratify the sexual desire of any person. The definition of “bodily harm” has been clarified to explain that offensive touching includes sexual acts or sexual contact without consent. The definition of “force” was simplified from its previ- ous iteration, and the term “unlawful force” was defined in ac- cordance with the definition for “unlawful force” as it relates to A23-15 Pun. Art. 120ANALYSIS OF PUNITIVE ARTICLES
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Article 128 contained in the 2010 edition of the Military Judges’ Benchbook. The 2012 amendments to Article 120 left the definition of “consent” generally unchanged, but simplified the structure of the definition and deleted restrictions regarding the use of consent evidence. The circular language in the 2007 version of Article 120, which used nearly identical words to explain the interaction of consent and capacity, was deleted. The treatment of consent was simplified and may be disputed when relevant. For example, the proposed change makes it clear that sleeping or unconscious persons cannot consent. In addition, persons subjected to a fraud- ulent representation of a professional purpose to accomplish the act, or under the belief that the person committing the act is another person, cannot consent because they do not understand to w h a t t h e y a r e c o n s e n t i n g . F i n a l l y , t h e a m e n d e d d e f i n i t i o n o f “consent” allows a permissive inference of lack of consent based on the circumstances of the case. 45a. Article 120a—Stalking 2007 Amendment: This and is based on section 551 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. 45b. Article 120b—Rape and sexual assault of a child 2012 Amendment: This paragraph is new and is based on section 541 of the National Defense Authorization Act for Fiscal Y e a r 2 0 1 2 [ F Y 1 2 N D A A ] , P . L . 1 1 2 - 8 1 , 3 1 D e c e m b e r 2 0 1 1 . Amendments contained in this section take effect on 28 June 2012. Sec. 541(f), P.L. 112-81. As of 28 June 2012, Article 120b criminalizes sexual offenses against children under the age of 16 which were previously con- tained in the 2007 version of Article 120. With several amend- m e n t s f o r c l a r i t y a n d t o m a k e e l e m e n t s o f e a c h o f f e n s e appropriate for child victims, the 2007 version of Article 120 was amended as follows: former Article 120(b) is now Article 120 b.(a); former Article 120(d) was renamed from “Aggravated Sex- ual Assault of a Child” to “Sexual Assault of a Child” and is now Article 120b.(b); and former Article 120(f) was renamed from “Aggravated Sexual Abuse of a Child” to “Sexual Abuse of a Child” and is now Article 120b.(c). The definitions of prohibited sexual acts, sexual contact, and lewd acts have been broadened to cover all sexual offenses against children currently covered under the 2007 version of Article 120(g), Article 120(i), and Article 120 (j). a. Text. Rape of a Child: The elements of “Rape of a Child” have been simplified from its previous version by eliminating reference to the former Article 120(a); broadening the acts which qualify as rape of a child by revising the elements pertaining to fear, rendering the child unconscious, and administering the child a drug, intoxicant, or other similar substance; and broadening the definition of sexual act to include penetration of the anus or mouth by the penis or penetration of the anus or mouth by any part of the body or by any object with an intent to abuse, humili- ate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Furthermore, the defenses of mistake of fact as to age and marriage have been eliminated for cases involving rape of a child. When force is used with a sexual act upon a child over 12, it is sufficient to qualify as rape of a child. Therefore, by clarifying that a child under 16 cannot consent as a matter of law, the new Article 120b corrects the aberration of child rape offenses in the 2007 version of Article 120 which placed consent of a child under 16 at issue, and brings child rape offenses in line with long-standing military law regarding rape against a child. Sexual Assault: The elements of “Sexual Assault of a Child” are nearly identical to elements that appeared in the 2007 version of Article 120(d). Under Article 120b.(b), an accused will be strictly liable for committing a sexual act upon a child under 16 unless the accused can prove mistake of fact as to age by a preponderance of the evidence. Sexual Abuse: The new “Sexual Abuse of a Child” offense under Article 120b.(c), which proscribes committing a “lewd act” upon a child, was intended to consolidate the 2007 version of Article 120(f), Article 120(g), Article 120(i), and Article 120(j), by expanding the definition of “lewd act” to include any sexual contact with a child, indecent exposure to a child, communicating indecent language to a child, and committing indecent conduct with or in the presence of a child. Exposure, communication, and indecent conduct now include offenses committed via any com- munication technology to encompass offenses committed via the internet (such as exposing oneself to a child by using a webcam), cell phones, and other modern forms of communication. This c h a n g e e x p a n d s t h e p r e - 2 0 1 2 d e f i n i t i o n o f “ i n d e c e n t l i b e r t y ” which proscribed conduct only if committed in the physical pres- ence of a child. The defense of mistake of fact as to age is available when the child is over 12 years, which the accused must prove by a preponderance of evidence. Consent: Subsection (g) explicitly states that lack of consent need not be proven for any sexual offense against a child and that a child may not consent as a matter of law. No change is intended from long-standing military law in this area. 45c. Article 120c—Other sexual misconduct 2012 Amendment: This paragraph is new and is based on section 541 of the National Defense Authorization Act for Fiscal Year 2012 [FY12 NDAA], P.L. 112-81, 31 December 2011. This section takes effect on 28 June 2012. Sec. 541(f), P.L. 112-81. The new Article 120c. encompasses offenses contained in the 200 7 version of Article 120(k), Article 120(l), and Article 120(n), and is intended to criminalize non-consensual sexual misconduct that ordinarily subjects an accused to sex offender registration. a. Text. Indecent Viewing, Visual Recording, or Broadcast- ing: This offense clarifies the Indecent Act offense previously covered by the 2007 version of Article 120(k). The new Article 120c.(a) makes clear that both viewing and recording are offenses and explicitly creates an offense for distribution of any recording made in violation of the statute, which was not clearly prohibited under the 2007 version of Article 120(k). Forcible pandering: With minor clarifying changes, Article 120c.(b) remains unchanged from the 2007 version of Article 120 (l). Non-forcible pandering and non-forcible prostitution remain offenses under paragraph 97, Part IV. Indecent exposure: This offense encompasses the offense pro- scribed by the 2007 version of Article 120(n), and expands it to include situations in which the exposure is indecent - even if committed in a place where it would not be reasonably be ex- A23-16 Pun. Art. 120 APPENDIX 23
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pected to be viewed by people other than members of the actor’s family or household. 46. Article 121—Larceny and wrongful appropriation c. Explanation. This paragraph is based on paragraph 200 of MCM, 1969 (Rev.). The discussion in the fourth and fifth sen- tences of paragraph 200 a(4) was deleted as ambiguous and over- b r o a d . T h e p e n u l t i m a t e s e n t e n c e i n s u b p a r a g r a p h c ( 1 ) ( d ) adequately covers the point. C. Torcia, 2 Wharton’s Criminal Law and Procedure § 393 (1980); Hall v. United States , 277 Fed. 19 (8th Cir. 1921). As to subparagraph c(1)(c), see also United States v. Leslie , 13 M.J. 170 (C.M.A. 1982). As to subparagraph c(1)(d), see also United States v. Smith , 14 M.J. 68 (C.M.A. 1982); United States v. Cunningham , 14 M.J. 539 (A.C.M.R. 1 9 8 1 ) . A s t o s u b p a r a g r a p h c ( 1 ) ( f ) , s e e a l s o U n i t e d S t a t e s v . Kastner, 17 M.J. 11 (C.M.A. 1983); United States v. Eggleton , 22 U.S.C.M.A. 504, 47 C.M.R. 920 (1973); United States v. O’Hara, 14 U.S.C.M.A. 167, 33 C.M.R. 379 (1963); United States v. Hayes, 8 U.S.C.M.A. 627, 25 C.M.R. 131 (1958). As to sub- paragraph c(1)(h)(i), see also United States v. Malone , 14 M.J. 563 (N.M.C.M.R. 1982). 2002 Amendment: Subparagraph c(1)(h)(vi) is new. It was ad- ded to provide guidance on how unauthorized credit, debit, or e l e c t r o n i c t r a n s a c t i o n s s h o u l d u s u a l l y b e c h a r g e d . S e e U n i t e d States v. Duncan , 30 M.J. 1284, 289 (N.M.C.M.R. 1990) (citing United States v. Jones , 29 C.M.R. 651 (A.B.R. 1960), pet. denied, 30 C.M.R. 417 (C.M.A. 1960)) (regarding thefts from ATM ma- c h i n e s ) . A l t e r n a t i v e c h a r g i n g t h e o r i e s a r e a l s o a v a i l a b l e , s e e United States v. Leslie , 13 M.J. 170 (C.M.A. 1982); United States v. Ragins , 11 M.J. 42 (C.M.A. 1981); United States v. Schaper , 42 M.J. 737 (A.F. Ct. Crim. App. 1995); and United States v. Christy, 18 M.J. 688 (N.M.C.M.R. 1984). The key under Article 121 is that the accused wrongfully obtained goods or money from a person or entity with a superior possessory interest. e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in property offenses in civilian jurisdictions. The maximum punishment for larceny or wrongful appropriation of a firearm or explosive includes 5 or 2 years’ confinement respectively. This is because, regardless of the intrinsic value of such items, the threat to the community and disruption of military activities is substantial when such items are wrongfully taken. Special accountability and protective measures are taken with firearms and explosives, and they may be the target of theft regardless of value. 1986 Amendment: The maximum punishments for larceny were revised as they relate to larceny of military property to make them consistent with the punishments under Article 108 and para- graph 32e, Part IV, MCM, 1984. Before this amendment, a per- son who stole military property faced less punishment than a person who willfully damaged, destroyed, or disposed of military property. The revised punishments are also consistent with 18 U.S.C. § 641. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). Although the monetary amount effecting punishment in 18 U.S.C. § 1361, Government property or contracts, and 18 U.S.C. § 641, Public money, property or records, was increased from $100 to $1000 pursuant to section 60 6 of the Economic Espionage Act of 1996, P. L. No. 104-294, 110 Stat. 3488 (1996), a value of $500 was chosen to maintain deterrence, simplicity, and uniformity for the Manual’s property offenses. 47. Article 122—Robbery c. Explanation. This paragraph is based on paragraph 201 of MCM, 1969 (Rev.). See also United States v. Chambers , 12 M.J. 443 (C.M.A. 1982); United States v. Washington , 12 M.J. 1036 (A.C.M.R. 1982), pet. denied, 14 M.J. 170 (1982). Subparagraph (5) is based on United States v. Parker , 17 U.S.C.M.A. 545, 38 C.M.R. 343 (1968). d. Lesser included offenses. See United States v. Calhoun , 5 U.S.C.M.A. 428, 18 C.M.R. 52 (1955). e. Maximum punishment. The aggravating factor of use of a fire- arm in the commission of a robbery, and a higher maximum punishment in such cases, have been added because of the in- c r e a s e d d a n g e r w h e n r o b b e r y i s c o m m i t t e d w i t h a f i r e a r m whether or not loaded or operable. Cf. 18 U.S.C. §§ 2113 and 2114; United States v. Shelton , 465 F.2d 361 (4th Cir. 1972); United States v. Thomas , 455 F.2d 320 (6th Cir. 1972); Baker v. United States, 412 F.2d 1069 (5th Cir. 1969). See also U.S. Dep’t of Justice, Attorney General’s Task Force on Violent Crime, Final Report 29–33 (Aug. 17, 1981). The 15-year maximum is the same as that for robbery under 18 U.S.C. § 2111. 48. Article 123—Forgery c. Explanation. This paragraph is based on paragraph 202 of MCM, 1969 (Rev.). 49. Article 123a—Making, drawing, or uttering check, draft, or order without sufficient funds c. Explanation. This paragraph is based on paragraph 202A of MCM, 1969 (Rev.). The language in paragraph 202A using an illegal transaction such as an illegal gambling game as an exam- ple of “for any other purpose” was eliminated in subparagraph (7), based on United States v. Wallace , 15 U.S.C.M.A. 650, 36 C.M.R. 148 (1966). The statutory inference found in Article 123a and explained in subparagraph (17) was not meant to preempt the usual methods of proof of knowledge and intent. See S.Rep. No. 659, 87th Cong. 1st Sess. 2 (1961). Subparagraph (18) is based on United States v. Callaghan , 14 U.S.C.M.A. 231, 34 C.M.R. 11 ( 1 9 6 3 ) . S e e a l s o U n i t e d S t a t e s v . W e b b , 4 6 C . M . R . 1 0 8 3 (A.C.M.R. 1972). As to share drafts see also United States v. Palmer, 14 M.J. 731 (A.F.C.M.R. 1982); United States v. Grubbs , 13 M.J. 594 (A.F.C.M.R. 1982). e. Maximum punishment. The maximum punishment for subsec- tion (1) has been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misde- A23-17 Pun. Art. 123ANALYSIS OF PUNITIVE ARTICLES
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meanor penalties contingent on value in property offenses in civilian jurisdiction. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). f. Sample specification. See also United States v. Palmer and United States v. Grubbs , both supra (pleading share drafts; plead- ing more than one check or draft). 50. Article 124—Maiming c. Explanation. This paragraph is based on paragraph 203 of MCM, 1969 (Rev.). Subparagraph c(3) is based on United States v. Hicks , 6 U.S.C.M.A. 621, 20 C.M.R. 337 (1956). The discus- sion of intent has been modified to reflect that some specific intent to injure is necessary. United States v. Hicks, supra. The third sentence of the third paragraph of paragraph 203 of MCM, 1969 (Rev.), which was based on Hicks (see Analysis of Contents, Manual for Courts-martial, United States, 1969 (Revised edition) , DA PAM 27–2 at 28–15), was misleading in this regard. Contra United States v. Tua , 4 M.J. 761 (A.C.M.R. 1977), pet. denied, 5 M.J. 91 (1978). e. Maximum punishment. 2007 Amendment: The maximum pun- ishment for the offense of maiming was increased from 7 years confinement to 20 years confinement, consistent with the federal offense of maiming. 18 U.S.C. § 114. 51. Article 125—Forcible Sodomy 2016 Amendment: Paragraph 51 was amended pursuant to section 1707 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013. Additionally, all applicable references to sodomy throughout the Manual were changed to “forcible sodomy” to reflect the decriminalization of consensual sodomy under the UCMJ. b. Elements. 2004 Amendment: Paragraph 51(b) was amended by adding two factors pertaining to age based upon the 1994 amend- ment to paragraph 51(e) that created two distinct categories of sodomy involving a child. See also concurrent change to R.C.M. 307(c)(3) and accompanying analysis. c. Explanation. This paragraph is based on paragraph 204 of MCM, 1969 (Rev.). Fellatio and cunnilingus are within the scope of Article 125. See United States v. Harris , 8 M.J. 52 (C.M.A. 1979); United States v. Scoby , 5 M.J. 160 (C.M.A. 1978). For a discussion of the possible constitutional limitations on the appli- cation of Article 125 (for example, the sexual activity of a mar- ried couple), see United States v. Scoby, supra. d. Paragraph 51e. The Analysis accompanying subparagraph 51e is amended by inserting the following at the end thereof: 1994 Amendment. One of the objectives of the Sexual Abuse Act of 1986, 18 U.S.C. §§ 2241–2245 was to define sexual abuse in gender-neutral terms. Since the scope of Article 125, UCMJ, accommodates those forms of sexual abuse other than the rape provided for in Article 120, UCMJ, the maximum punishments permitted under Article 125 were amended to bring them more in line with Article 120 and the Act, thus providing sanctions that are generally equivalent regardless of the victim’s gender. Sub- paragraph e(1) was amended by increasing the maximum period of confinement from 20 years to life. Subparagraph e(2) was amended by creating two distinct categories of sodomy involving a child, one involving children who have attained the age of 12 but are not yet 16, and the other involving children under the age of 12. The latter is now designated as subparagraph e(3). The punishment for the former category remains the same as it was for the original category of children under the age of 16. This amendment, however, increases the maximum punishment to life when the victim is under the age of 12 years. Lesser included offenses. 2007 Amendment: The former Paragraph 87(1)(b), Article 134 Indecent Acts or Liberties with a Child, has been replaced in its entirety by paragraph 45. The former Paragraph 63(2)(c), Article 134 Assault - Indecent, has been replaced in its entirety by para- graph 45. The former Paragraph 90(3)(a), Article 134 Indecent Acts with Another, has been replaced in its entirety by paragraph 45. Lesser included offenses under Article 120 should be consid- ered depending on the factual circumstances in each case. e. Maximum punishment. The maximum punishment for forcible sodomy was raised in recognition of the severity of the offense which is similar to rape in its violation of personal privacy and dignity. f. Sample specifications. 2004 Amendment: Paragraph 51(f) was amended to aid practitioners in charging the two distinct catego- ries of sodomy involving a child created in 1994. See also con- current change to R.C.M. 307(c)(3) and accompanying analysis. 52. Article 126—Arson c. Explanation. This paragraph is based on paragraph 205 of MCM, 1969 (Rev.). See United States v. Acevedo-Velez , 17 M.J. 1 (C.M.A.1983); United States v. Duke , 16 U.S.C.M.A. 460, 37 C.M.R. 80 (1966); United States v. Scott , 8 M.J. 853 (N.C.M.R. 1980); United States v. Jones , 2 M.J. 785 (A.C.M.R. 1976). e. Maximum punishment. The maximum period of confinement for simple arson of property of a value of more than $100 has been reduced from 10 to 5 years. This parallels 18 U.S.C. § 81. The separate punishment for simple arson of property of a value of $100 or less has been retained because 18 U.S.C. § 81 does not cover most personal property. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). A value of $500 was chosen to maintain deterrence, simplicity, and uniformity for the Manual’s property offenses. 18 U.S.C. Sec. 81, Arson within special mari- time and territorial jurisdiction, no longer grades the offense on the basis of value. 53. Article 127—Extortion c. Explanation. This paragraph is based on paragraph 206 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . S c h m i d t , 1 6 U.S.C.M.A. 57, 36 C.M.R. 213 (1966); R. Perkins, Criminal Law A23-18 Pun. Art. 123 APPENDIX 23
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373–74 (2d ed. 1969). Subparagraph (4) is based on United States v. McCollum , 13 M.J. 127 (C.M.A. 1982). 54. Article 128—Assault c. Explanation. This paragraph is based on paragraph 207 of MCM, 1969 (Rev.). See also United States v. Vigil , 3 U.S.C.M.A. 474, 13 C.M.R. 30 (1953) (aggravated assault); United States v. Spearman, 23 U.S.C.M.A. 31, 48 C.M.R. 405 (1974) (grievous bodily harm). e. Maximum punishment. The maximum punishment for (2) As- sault consummated by a battery has been increased because of the range of types of harm which may be caused by a battery. These may include serious injury, even though unintended or not caused by a means or force likely to produce grievous bodily harm. The maximum punishment for (6) Assault upon a sentinel or lookout in the execution of duty, or upon any person who, in the execu- tion of office, is performing security police, military police, shore patrol, master at arms, or other military or civilian law enforce- ment duties, has been increased based on 18 U.S.C. § 111 and 18 U.S.C. § 1114. The maximum punishment for aggravated assaults committed with firearms has been increased based on 18 U.S.C. § 924(c). See also U.S. Dep’t of Justice, Attorney General’s Task Force on Violent Crime, Final Report 29–33 (Aug. 17, 1981). N o t e t h a t t h e h i g h e r m a x i m u m f o r a s s a u l t w i t h a d a n g e r o u s weapon when the weapon is a firearm applies even if the firearm is used as a bludgeon. This is because the danger injected is significantly greater when a loaded firearm is used, even as a bludgeon. In certain situations, this punishment scheme may have the effect of making intentional infliction of grievous bodily harm a lesser included offense of assault with a dangerous weapon. For example, if in the course of an assault with a loaded firearm the accused or a coactor stabs the victim with a knife, the assault with a dangerous weapon (the firearm) would carry an 8 year maximum penalty, as opposed to 5 years for the assault intention- ally inflicting grievous bodily harm. In such a case, the specifica- tion should be carefully tailored to describe each facet of the assault. 1998 Amendment: A separate maximum punishment for assault with an unloaded firearm was created due to the serious nature of the offense. Threatening a person with an unloaded firearm places the victim of that assault in fear of losing his or her life. Such a traumatic experience is a far greater injury to the victim than that sustained in the course of a typical simple assault. Therefore, it calls for an increased punishment. 2007 Amendment: The maximum punishments for some aggra- vated assault offenses were established to recognize the increased severity of such offenses when children are the victims. These maximum punishments are consistent with the maximum punish- ments of the Article 134 offense of Child Endangerment, estab- lished in 2007. 55. Article 129—Burglary c. Explanation. This paragraph is based on paragraph 208 of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K l u t z , 9 U.S.C.M.A. 20, 25 C.M.R. 282 (1958). Subparagraph c(2) and (3) have been revised based on R. Perkins, Criminal Law 192–193 and 199 (2d ed. 1969). As to subparagraph c(2), see also 13 AM.Jur. 2d Burglary § 18 (1964); Annot., 70 A.L.R. 3d 881 (1976). f. Sample specification. See United States v. Knight , 15 M.J. 202 (C.M.A. 1983). 56. Article 130—Housebreaking c. Explanation. This paragraph is based on paragraph 209 of MCM, 1969 (Rev.) and United States v. Gillin , 8 U.S.C.M.A. 669, 25 C.M.R. 173 (1958). See also United States v. Breen , 15 U.S.C.M.A. 658, 36 C.M.R. 156 (1966); United States v. Hall , 12 U.S.C.M.A. 374, 30 C.M.R. 374 (1961); United States v. Taylor , 12 U.S.C.M.A. 44, 3O C.M.R. 44 (1960) (all regarding “struc- ture”); United States v. Weaver , 18 U.S.C.M.A. 173, 39 C.M.R. 173 (1969) (“separate offense”); United States v. Williams , 4 U.S.C.M.A. 241, 15 C.M.R. 241 (1954) (“entry”). 57. Article 131—Perjury c. Explanation. Subparagraph (1) and (2) are based on paragraph 210 of MCM, 1969 (Rev.). In the last sentence of subparagraph (2)(a), the phrase “unless the witness was forced to answer over a valid claim of privilege” which appeared at the end of the fourth paragraph of paragraph 210 of MCM, 1969 (Rev.) has been deleted based on United States v. Mandujano , 425 U.S. 564 (1976); Harris v. New York , 401 U.S. 222 (1971). See also United States v. Armstrong , 9 M.J. 374 (C.M.A. 1980). Subparagraph (3) i s n e w a n d i s b a s e d o n P u b l i c L a w 9 4 – 5 5 0 o f 1 9 7 6 w h i c h amended Article 131 by adding a second clause based on section 1746 of title 28 United States Code, which was also enacted as part of Pub.L. No. 94–550. Text of section 1746 of title 28, United States Code § 1746. Unsworn declarations under penalty of perjury. Whenever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, estab- lished, or proved by the sworn declaration, verification, certifi- cate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: (1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)” (2) If executed within the United States, its territories, posses- sions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)” If someone signs a statement under penalty of perjury outside a judicial proceeding or course of justice, and Article 107 (false official statement) is not applicable, it may be possible to use Article 134 (clause 3) ( see paragraph 60) to charge a violation of 18 U.S.C. § 1621. Text of section 1621 of title 18, United States Code A23-19 Pun. Art. 131ANALYSIS OF PUNITIVE ARTICLES
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§ 1621. Perjury generally Whoever— (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except or otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscrip- tion is made within or without the United States. 2004 Amendment: Subsection (2)(b) was amended to comply with United States v. Gaudin, 515 U.S. 506 (1995), which held that when materiality is a statutory element of an offense, it must be submitted to the jury for decision. Materiality cannot be re- moved from the members’ consideration by an interlocutory rul- ing that a statement is material. See Gaudin, 515 U.S. at 521 (“It is commonplace for the same mixed question of law and fact to be assigned to the court for one purpose, and to the jury for another.”); and at 517 (“The prosecution’s failure to provide mini- mal evidence of materiality, like its failure to provide minimal evidence of any other element, of course raises a question of ‘law’ that warrants dismissal.”). d. Lesser included offenses. 1991 Amendment: Subparagraph d was amended by deleting false swearing as a lesser included offense of perjury. See United States v. Smith , 26 C.M.R. 16 (C.M.A. 1958); MCM 1984, Part IV, para. 79c(1). Although closely related to perjury, the offense of false swearing may be charged separately. 58. Article 132—Frauds against the United States c. Explanation. This paragraph is based on paragraph 211 of MCM, 1969 (Rev.). e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in property offenses in civilian jurisdictions. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). 59. Article 133—Conduct unbecoming an officer and gentleman c. Explanation. This paragraph is based on paragraph 212 of MCM, 1969 (Rev.). See Parker v. Levy , 417 U.S. 733 (1974) (constitutionality of Article 133). For a discussion of Article 133, see United States v. Giordano , 15 U.S.C.M.A. 163, 35 C.M.R. 135 (1964); Nelson, Conduct Expected of an Officer and a Gen- tleman: Ambiguity, 12 A.F.JAG L.Rev. 124 (Spring 1970). As to subparagraph (1), see 1 U.S.C. § 1; Pub.L. No. 94–106, § 803, 89 Stat. 537–38 (Oct. 7, 1975). e. Maximum punishment. A maximum punishment is established for the first time in order to provide guidance and uniformity for Article 133 offenses. f. Sample specifications. Some sample specifications for Article 133 in MCM, 1969 (Rev.) were deleted solely to economize on space. 60. Article 134—General article Introduction. Paragraph 60 introduces the General Article. Paragraph 61–113 describe and list the maximum punishments for many offenses under Article 134. These paragraphs are not exclu- sive. See generally Parker v. Levy , 417 U.S. 733 (1974); United States v. Sadinsky , 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964). E x c e p t a s o t h e r w i s e n o t e d i n t h e A n a l y s e s o f p a r a g r a p h s 61–113, the offenses listed below are based on paragraph 127 c (Table of Maximum Punishments), paragraph 213 f, and Appendix 6 (sample specifications 126–187) of MCM, 1969 (Rev.). Eight offenses previously listed (allowing prisoner to do unauthorized acts, criminal libel, criminal nuisance, parole violation, statutory perjury, transporting stolen vehicle in interstate commerce, un- clean accoutrements, and unclean uniform) are not listed here because they occur so infrequently or because the gravamen of the misconduct is such that it is more appropriately charged under another provision. c. Explanation. Except as noted below, this paragraph is based on paragraph 213 a through e of MCM, 1969 (Rev.). (1) In general. See Secretary of the Navy v. Avrech , 418 U.S. 676 (1974); Parker v. Levy, supra (constitutionality of Article 134 upheld). (4)(c)(ii) Federal Assimilative Crimes Act. See United States v. Wright, 5 M.J. 106 (C.M.A. 1978); United States v. Rowe , 13 U.S.C.M.A. 302, 32 C.M.R. 302 (1962). (5)(a) Preemption doctrine. See United States v. McCormick , 12 U.S.C.M.A. 26, 30 C.M.R. 26 (1960) (assault on child under 16); United States v. Hallet , 4 U.S.C.M.A. 378, 15 C.M.R. 378 (1954) (misbehavior before the enemy); United States v. Deller , 3 U . S . C . M . A . 4 0 9 , 1 2 C . M . R . 1 6 5 ( 1 9 5 3 ) ( a b s e n c e o f f e n s e s ) ; United States v. Norris , 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953) (larceny). But see the following cases for examples of where offenses not preempted: United States v. Wright, supra (burglary of automobile); United States v. Bonavita , 21 U.S.C.M.A. 407, 45 C.M.R. 181 (1972) (concealing stolen property); United States v. Maze, 21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) (unlawfully altering public records); United States v. Taylor , 17 U.S.C.M.A. 595, 38 C.M.R. 393 (1968) (self-inflicted injury with no intent to avoid Service) United States v. Gaudet , 11 U.S.C.M.A. 672, 29 C.M.R. 488 (1960) (stealing from mail); United States v. Fuller , 9 U.S.C.M.A. 143, 25 C.M.R. 405 (1958) (fraudulent burning); United States v. Holt , 7 U.S.C.M.A. 617, 23 C.M.R. 81 (1957) (graft, fraudulent misrepresentation). ( 5 ) ( b ) C a p i t a l o f f e n s e . S e e U n i t e d S t a t e s v . F r e n c h , 1 0 U.S.C.M.A. 171, 27 C.M.R. 245 (1959). (6)(a) In general . A23-20 Pun. Art. 131 APPENDIX 23
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2016 Amendment: In 2012 the Manual was amended to address the changes in practice resulting from the holding in United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011). In 2016, the President required that the terminal element be expressly alleged in every Article 134 specification. The President ended the historical practice of allowing the terminal element to be inferred from Article 134 specifications, see, e.g. United States v. Mayo , 12 M.J. 286 (C.M.A. 1982), and required the terminal element be expressly alleged to provide sufficient notice to the accused and for uniformity and consis- tency in practice. See Fosler, 70 M.J. at 227-28. In general, when drafting specifications, the Government must allege every ele- ment, either expressly or by necessary implication. See R.C.M. 307(c)(3). However, in Article 134 specifications, the accused must be given notice as to which clause or clauses he must defend against; therefore, the terminal element may not be inferred from a specification. Although a single terminal element is required, there are three theories of liability that would satisfy the terminal element: a disorder or neglect to the prejudice of good order and discipline (under clause 1); conduct of a nature to bring discredit upon the armed forces (under clause 2); or a crime or offense not capital (under clause 3). The three clauses are “distinct and separate.” Fosler, 70 M.J. at 230. A single theory may be alleged, or clauses 1 and 2 may be combined. While it is not prohibited to combine clauses 1, 2, and 3 in one specification, such a combination is not practical. When charging both clauses 1 and 2, practitioners are encour- aged to use the word “and” to separate the theories in one specifi- cation, rather than using the word “or” to separate the theories. Practitioners may also allege two separate specifications. At find- ings, the Trial Counsel or Military Judge must make certain that the record is clear as to whether the trier of fact found that clause 1, clause 2, or both clauses were proven beyond a reasonable doubt. Using the word “and” to separate clauses 1 and 2 in the terminal element allows the trier of fact to except the unproven clause from the specification. This approach forces intellectual rigor in analyzing each clause as distinct and separate. Nothing in this analysis should be read to suggest that a specification connec- ting the two theories with the disjunctive “or” necessarily fails to give the accused reasonable notice of the charge against him. See United States v. Rauscher , 71 M.J. 225, 226 (C.A.A.F. 2012) (per c u r i a m ) ( c i t i n g R u s s e l l v . U n i t e d S t a t e s , 3 6 9 U . S . 7 4 9 , 7 6 5 (1962)). 2012 Amendment. Subparagraph (6)(a) formerly had no analy- sis. See MCM (2008 Edition). In 2011, the Court of Appeals for the Armed Forces held that an Article 134 specification fails to state an offense when it does not expressly or by necessary implication allege at least one of the three terminal elements, i.e., that the alleged conduct was: prejudicial to good order and disci- pline; service discrediting; or a crime or offense not capital. See United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011); United States v. Ballan , 71 M.J. 28 (C.A.A.F. 2012). As a result of Fosler, and in an abundance of caution, practitioners should ex- pressly allege the terminal element in every Article 134 specifica- t i o n . T h e F o s l e r C o u r t a d d r e s s e d t h e h i s t o r i c a l p r a c t i c e o f inferring the terminal elements in Article 134 charges, see, e.g. United States v. Mayo , 12 M.J. 286 (C.M.A. 1983), and noted that recent cases have required a greater degree of specificity in charging. Fosler, 70 M.J. at 227-8 (citing Schmuck v. United States, 489 U.S. 705 (1989)). An accused must be given notice as to which clause or clauses he must defend against, and including the word and figures “Article 134” in a charge does not by itself allege the terminal element expressly or by necessary implication. Fosler, 70 M.J. at 229. It is important for the accused to know whether the offense in question is: a disorder or neglect to the prejudice of good order and discipline under clause 1, conduct of a nature to bring discredit upon the armed forces under clause 2, a crime not capital under clause 3, or all three. Fosler, 70 M.J. at 229 (citing United States v. Medina , 66 M.J. 21, 26. (C.A.A.F.). See United States v. Ballan , 71 M.J. 28 (C.A.A.F. 2012). See also paragraph 60c(1)-(4) of Part IV for an explanation of clause 1, 2, and 3 offenses under Article 134. ( 6 ) ( b ) S p e c i f i c a t i o n s u n d e r c l a u s e 3 . S e e U n i t e d S t a t e s v . Mayo, 12 M.J. 286 (C.M.A. 1982); United States v. Perry , 12 M.J. 112 (C.M.A. 1981); United States v. Rowe, supra; United States v. Hogsett , 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958). 2016 Amendment: New discussion was added in 2012 to ad- dress United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011). In 2 0 1 6 , t h a t d i s c u s s i o n w a s r e m o v e d a f t e r p a r a g r a p h 6 0 w a s amended by Executive Order. See analysis under subparagraph c.(6)(a) above. (6)(c) Specifications for clause 1 or 2 offenses not listed. See United States v. Sadinsky, supra; United States v. Mardis , 6 U.S.C.M.A 624, 20 C.M.R. 340 (1956). 61. Article 134—(Abusing a public animal) c. Explanation. This new paragraph defines “public animal.” 62. Article 134—(Adultery) c. Explanation. (1) Subparagraph c(2) is based on United States. v. Snyder , 4 C.M.R. 15 (1952); United States v. Ruiz , 46 M.J. 503 (A. F. Ct. Crim. App. 1997); United States v. Green , 39 M.J. 606 (A.C.M.R. 1994); United States v. Collier , 36 M.J. 501 (A.F.C.M.R. 1992); United States v. Perez , 33 M.J. 1050 (A.C.M.R. 1991); United States v. Linnear , 16 M.J. 628 (A.F.C.M.R. 1983); Part IV, para- graph 60c(2)(a) of MCM. Subparagraph c(3) is based on United States v. Poole , 39 M.J. 819 (A.C.M.R. 1994). Subparagraph c(4) is based on United States v. Fogarty , 35 M.J. 885 (A.C.M.R. 1992); Military Judges’ Benchbook, DA PAM 27-9, paragraph 3- 62-1 and 5-11-2 (30 Sep. 1996). See R.C.M. 916(j) and (l)(1) for a general discussion of mistake of fact and ignorance, which cannot be based on a negligent failure to discover the true facts. (2) When determining whether adulterous acts constitute the offense of adultery under Article 134, commanders should con- sider the listed factors. The offense of adultery is intended to prohibit extramarital sexual behavior that directly affects the dis- cipline of the armed forces, respect for the chain of command, or maintenance of unit cohesion. The intent of this provision is to limit the crime of adultery to those situations where the negative impact to the unit is real rather than theorized. This provision should not be interpreted to criminalize sexual practices practices between two adults with full and mutual consent from each other, but rather, to punish the collateral negative effects of extramarital sexual activity when there exists a genuine nexus between that activity and the efficiency and effectiveness of the armed forces. A23-21 Pun. Art. 134ANALYSIS OF PUNITIVE ARTICLES
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Cf. United States v. Marcum , 60 M.J. 198, 204-08 (C.A.A.F. 200 4) (despite constitutionally protected liberty interest in private sexual behavior between consenting adults, military may regulate sexual conduct to the extent it could affect military order and discipline). While each commander has discretion to dispose of offenses by members of the command, wholly private and consensual sexual conduct between adults is generally not punishable under this paragraph. The right to engage in such conduct, however, is tempered in a military context by the mission of the military, the need for cohesive teams, and the need for obedience to orders. Cases involving fraternization or other unprofessional relation- ships may be more appropriately charged under Article 92 or Article 134—Fraternization. Cases involving abuse of authority by officers may be more appropriately charged under Article 133. Rule for Courts-Martial 306(b) advises commanders to dispose of alleged offenses at the lowest appropriate level. As the R.C.M. 306(b) discussion states, many factors must be taken into consid- eration and balanced, including, to the extent practicable, the n a t u r e o f t h e o f f e n s e , a n y m i t i g a t i n g o r e x t e n u a t i n g c i r c u m - stances, any recommendations made by subordinate commanders, the interests of justice, military exigencies, and the effect of the decision on the military member and the command. The goal should be a disposition that is warranted, appropriate, and fair. In the case of officers, also consult the explanation to paragraph 59 of Part IV in deciding how to dispose of an allegation of adultery. 63. Deleted—See Executive Order 13447 I n d e c e n t a s s a u l t w a s d e l e t e d p u r s u a n t t o E x e c u t i v e O r d e r 13447, effective 1 October 2007. See Appendix 27 for the origi- nal text. 64. Article 134—(Assault—with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking) c. Explanation. This paragraph is based on paragraph 213 f(1) of MCM, 1969 (Rev.). 2007 Amendment. This paragraph has been amended for consis- tency with the changes to Article 118 under Section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 10 9-163, 6 January 2006. See subsection (d) of Section 552. 65. Article 134—(Bigamy) c. Explanation. This paragraph is based on paragraph 213 f(9) of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . P r u i t t , 1 7 U.S.C.M.A. 438, 38 C.M.R. 236 (1968), concerning the defense of mistake. 66. Article 134—(Bribery and graft) c. Explanation. This is based on United States v. Marshall , 18 U . S . C . M . A . 4 2 6 , 4 0 C . M . R . 1 3 8 ( 1 9 6 9 ) ; U n i t e d S t a t e s v . Alexander, 3 U.S.C.M.A. 346, 12 C.M.R. 102 (1953). See also United States v. Eslow , 1 M.J. 620 (A.C.M.R. 1975). d. Lesser included offenses. Graft is listed as a lesser included offense of bribery. See United States v. Raborn , 575 F.2d 688 (9th Cir. 1978); United States v. Crutchfield , 547 F.2d 496 (9th Cir. 1977). e. Maximum punishment. The maximum punishment for bribery has been revised to reflect the greater seriousness of bribery, which requires a specific intent to influence. See also 18 U.S.C. § 201. 67. Article 134—(Burning with intent to defraud) c. Explanation. This paragraph and is self-explanatory. For a d i s c u s s i o n o f t h i s o f f e n s e s e e U n i t e d S t a t e s v . F u l l e r , 9 U.S.C.M.A. 143, 25 C.M.R. 405 (1958). 68. Article 134—(Check, worthless, making and uttering—by dishonorably failing to maintain funds) c. Explanation. This paragraph is based on paragraph 213 f(8) of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . G r o o m , 1 2 U.S.C.M.A. 11, 30 C.M.R. 11 (1960). d . L e s s e r i n c l u d e d o f f e n s e . S e e U n i t e d S t a t e s v . D o w n a r d , 6 U.S.C.M.A. 538, 20 C.M.R. 254 (1955). 68a. Article 134—(Child Endangerment) 2007 Amendment: This to the Manual for Courts-Martial. Child neglect was recognized in United States v. Vaughan , 58 M.J. 29 (C.A.A.F. 2003). It is based on military custom and regulation as well as a majority of state statutes and captures the essence of child neglect, endangerment, and abuse. 68b. Article 134—(Child Pornography) 2 0 1 2 A m e n d m e n t : T h i s o f f e n s e i s n e w t o t h e M a n u a l f o r Courts-Martial. It is generally based on 18 U.S.C. §2252A, as well as military custom and regulation. The possession, receipt, distribution and viewing of child pornography has been recog- nized as an offense under clause 1 or 2 of Article 134, or under clause 3 as an assimilated crime under 18 U.S.C. § 2251. This offense was added by Executive Order 13593, signed 13 Decem- ber 2011. See Appendix 25. This paragraph applies to offenses committed on or after 12 January 2012. 69. Article 134—(Cohabitation, wrongful) c. Explanation. This and is based on United States v. Acosta , 19 U.S.C.M.A. 341, 41 C.M.R. 341 (1970); United States v. Mel- ville, 8 U.S.C.M.A. 597, 25 C.M.R. 101 (1958); United States v. Leach, 7 U.S.C.M.A. 388, 22 C.M.R. 178 (1956); and United States v. Boswell , 35 C.M.R. 491 (A.B.R. 1964), pet. denied , 35 C.M.R. 478 (1964). 70. Article 134—(Correctional custody— offenses against) Introduction. The elements and sample specifications have been modified by replacing “duly” with “by a person authorized to do so.” See Analysis, paragraph 19. c. Explanation. This paragraph is taken from paragraph 213 f(13) of MCM, 1969 (Rev.). See also United States v. Mackie , 16 U.S.C.M.A. 14, 36 C.M.R. 170 (1966) (proof of the offense for which correctional custody imposed not required). 71. Article 134—(Debt, dishonorably failing to pay) c. Explanation. This paragraph is based on paragraph 213 f(7) of A23-22 Pun. Art. 134 APPENDIX 23
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M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K i r k s e y , 6 U.S.C.M.A. 556, 20 C.M.R. 272 (1955). 72. Article 134—(Disloyal statements) c. Explanation. This paragraph is based on paragraph 213 f(5) of MCM, 1969 (Rev.); Parker v. Levy , 417 U.S. 733 (1974); United States v. Priest , 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972); United States v. Gray , 20 U.S.C.M.A. 63, 42 C.M.R. 255 (1970); United States v. Harvey , 19 U.S.C.M.A. 539, 42 C.M.R. 141 (1970). 73. Article 134—(Disorderly conduct, drunkenness) c. Explanation. (2) Disorderly. This subparagraph is based on United States v. Manos , 24 C.M.R. 626 (A.F.B.R. 1957). See also United States v. Haywood , 41 C.M.R. 939 (A.F.C.M.R. 1969) and United States v. Burrow , 26 C.M.R. 761 (N.B.R. 1958), for a discussion of disorderly conduct in relation to the offense of breach of the peace 40c. 74. Article 134—(Drinking liquor with prisoner) c. Explanation. This paragraph is new. 75. Article 134—(Drunk Prisoner) c. Explanation. See Analysis, paragraph 35. 76. Article 134—(Drunkenness—incapacitation for performance of duties through prior wrongful overindulgence in intoxicating liquor or drugs) c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v . Roebuck, 8 C.M.R. 786 (A.F.B.R. 1953); United States v. Jones , 7 C.M.R. 97 (A.B.R. 1952); United States v. Nichols , 6 C.M.R. 239 (A.B.R. 1952). 77. Article 134—(False or unauthorized pass offenses) c. Explanation. This paragraph is based on paragraph 213 f(11) of MCM, 1969 (Rev.). See also United States v. Burton , 13 U.S.C.M.A. 645, 33 C.M.R. 177 (1963); United States v. War- then, 11 U.S.C.M.A. 93, 28 C.M.R. 317 (1959). 78. Article 134—(False pretenses, obtaining services under) c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v . Herndon, 15 U.S.C.M.A. 510, 36 C.M.R. 8 (1965); United States v. Abeyta , 12 M.J. 507 (A.C.M.R. 1981); United States v. Case , 37 C.M.R. 606 (A.B.R. 1966). e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in similar offenses in civilian jurisdictions. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). 79. Article 134—(False swearing) c. Explanation. This paragraph is based on paragraph 213 f(4) of M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . W h i t a k e r , 1 3 U.S.C.M.A. 341, 32 C.M.R. 341 (1962); United States v. McCar- thy, 11 U.S.C.M.A. 758, 29 C.M.R. 574 (1960). 80. Article 134—(Firearm, discharging— through negligence) c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v . Darisse, 17 U.S.C.M.A. 29, 37 C.M.R. 293 (1967); United States v . B a r r i e n t e s , 3 8 C . M . R . 6 1 2 ( A . B . R . 1 9 6 7 ) . T h e t e r m “carelessness” was changed to “negligence” because the latter is defined in paragraph 85c(2). 81. Article 134—(Firearm, discharging—willfully, under such circumstances as to endanger human life) c. Explanation. This paragraph is based on United States v. Pot- ter, 15 U.S.C.M.A. 271, 35 C.M.R. 243 (1965). 82. Article 134—(Fleeing scene of accident) c. Explanation. (1) Nature or offense. This paragraph is based on United States v. Seeger , 2 M.J. 249 (A.F.C.M.R. 1976). (2) Knowledge. This paragraph is based on United States v. Eagleson, 3 U.S.C.M.A. 685, 14 C.M.R. 103 (1954) (Latimer, J., concurring in the result). Actual knowledge is an essential ele- ment of the offense rather than an affirmative defense as is cur- rent practice. This is because actual knowledge that an accident has occurred is the point at which the driver’s or passenger’s responsibilities begin. See United States v. Waluski , 6 U.S.C.M.A. 724, 21 C.M.R. 46 (1956). (3) Passengers. See United States v. Waluski , supra. 83. Article 134—(Fraternization) Introduction. This paragraph to the Manual for Courts-Mar- tial, although the offense of fraternization is based on longstand- ing custom of the services, as recognized in the sources below. Relationships between senior officers and junior officers and be- tween noncommissioned or petty officers and their subordinates may, under some circumstances, be prejudicial to good order and discipline. This paragraph is not intended to preclude prosecution for such offenses. c. Explanation. This paragraph is new and is based on United States v. Pitasi , 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971); United S t a t e s v . F r e e , 1 4 C . M . R . 4 6 6 ( N . B . R . 1 9 5 3 ) . S e e a l s o W . Winthrop, Military Law and Precedents 41, 716 n.44 (2d ed. 1 9 2 0 r e p r i n t ) ; S t a t o n v . F r o e h l k e , 3 9 0 F . S u p p . 5 0 3 ( D . D . C . 1975); United States v. Lovejoy , 20 U.S.C.M.A. 18, 42 C.M.R. 210 (1970); United States v. Rodriquez , ACM 23545 (A.F.C.M.R. 1982); United States v. Livingston , 8 C.M.R. 206 (A.B.R. 1952). See Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 A.F. JAG. L.R. 124 (1970). d. Maximum punishment. The maximum punishment for this of- A23-23 Pun. Art. 134ANALYSIS OF PUNITIVE ARTICLES
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fense is based on the maximum punishment for violation of gen- eral orders and regulations, since some forms of fraternization have also been punished under Article 92. As to dismissal, see Nelson, supra at 129–130. f. Sample specification. See United States v. Free, supra. 84. Article 134—(Gambling with subordinate) c. Explanation. This paragraph and is based on United States v. Burgin, 30 C.M.R. 525 (A.B.R. 1961). d . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t w a s i n - creased from that provided in paragraph 127 c of MCM, 1969 (Rev.) to expressly authorize confinement. Cf. the second para- graph of paragraph 127 c(2) of MCM, 1969 (Rev.). e. Sample specification. Sample specification 153 in Appendix 6c of MCM, 1969 (Rev.) was revised to more correctly reflect the elements of the offense. 85. Article 134—(Homicide, negligent) c. Explanation. This paragraph is based on paragraph 213 f(12) of MCM, 1969 (Rev.); United States v. Kick , 7 M.J. 82 (C.M.A. 1979). e. Maximum punishment. 1994 Amendment: Subparagraph e was amended to increase the maximum punishment from a bad conduct discharge, total forfei- tures, and confinement for 1 year, to a dishonorable discharge, total forfeitures, and confinement for 3 years. This eliminated the i n c o n g r u i t y c r e a t e d b y h a v i n g t h e m a x i m u m p u n i s h m e n t f o r drunken driving resulting in injury that does not necessarily in- volve death exceed that of negligent homicide where the result must be the death of the victim. 86. Article 134—(Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official) b. Elements. The elements are based on United States v. Yum , 10 M.J. 1 (C.M.A. 1980). c. Explanation. This paragraph is new and is based on United States v. Demetris , 9 U.S.C.M.A. 412, 26 C.M.R. 192 (1958); U n i t e d S t a t e s v . M e s s e n g e r , 2 U . S . C . M . A . 2 1 , 6 C . M . R . 2 1 (1952). 87. Deleted—See Executive Order 13447 Indecent acts or liberties with a child was deleted pursuant to Executive Order 13447, effective 1 October 2007. See Appendix 27 for the original text. 88. Deleted—See Executive Order 13447 Indecent exposure was deleted pursuant to Executive Order 13447, effective 1 October 2007. See Appendix 27 for the origi- nal text. 89. Article 134—(Indecent language) Introduction. “Obscene” was removed from the title because it is synonymous with “indecent.” See paragraph 90c and Analy- sis. “Insulting” was removed from the title based on United States v. Prince, 14 M.J. 654 (A.C.M.R. 1982); United States v. Linyear , 3 M.J. 1027 (N.C.M.R. 1977). Gender-neutral language has been used in this paragraph, as well as throughout this Manual. This will eliminate any question about the intended scope of certain offenses, such as indecent language, which may have been raised by the use of the mascu- line pronoun in MCM, 1969 (Rev.). It is, however, consistent with the construction given to the former Manual. See e.g., United States v. Respess , 7 M.J. 566 (A.C.M.R. 1979). See generally 1 U.S.C. §§ (“unless the context indicates otherwise … words im- porting the masculine gender include the feminine as well ….”). c. Explanation. This paragraph is new and is based on United States v. Knowles , 15 U.S.C.M.A. 404, 35 C.M.R. 376 (1965); United States v. Wainwright , 42 C.M.R. 997 (A.F.C.M.R. 1970). For a general discussion of this offense, see United States v. Linyear supra. 1986 Amendment: “Provoking speeches and gestures” was added as a lesser included offense. United States v. Linyear , 3 M.J. 1027 (N.M.C.M.R. 1977). 1995 Amendment: The second sentence is new. It incorporates a test for “indecent language” adopted by the Court of Military Appeals in United States v. French , 31 M.J. 57, 60 (C.M.A. 1990 ). The term “tends reasonably” is substituted for the term “calcu- lated to” to avoid the misinterpretation that indecent language is a specific intent offense. e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t i n c a s e s other than communication to a child under the age of 16 has been reduced. It now parallels that for indecent exposure. 90. Article 134—(Indecent conduct) Introduction. This offense is new to Manual for Courts- Martial and was promulgated pursuant to Executive Order 13740 of 16 September 2016. It includes offenses previously proscribed by “Indecent acts with another,” which was deleted pursuant to Executive Order 13447 of 1 October 2007, except that the pres- ence of another person is not required. 91. Article 134—(Jumping from vessel into the water) Introduction. This offense is new to the Manual for Courts- Martial. It was added to the list of Article 134 offenses based on United States v. Sadinsky , 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964). 92. Article 134—(Kidnapping) Introduction. This to the Manual for Courts-Martial. It is based generally on 18 U.S.C. § 1201. See also Military Judges’ Benchbook, DA PAM 27–9, paragraph 3–190 (May 1982). Kidnapping has been recognized as an offense under Article 134 under several different theories. Appellate courts in the mili- tary have affirmed convictions for kidnapping in violation of state law, as applied through the third clause of Article 134 and 18 U.S.C. § 13 ( see paragraph 60), e.g., United States v. Picotte , 12 U.S.C.M.A. 196, 30 C.M.R. 196 (1961); in violation of Federal law (18 U.S.C. § 1201) as applied through the third clause of Article 134, e.g., United States v. Perkins , 6 M.J. 602 (A.C.M.R. 1978); and in violation of the first two clauses of Article 134, e.g., United States v. Jackson , 17 U.S.C.M.A. 580, 38 C.M.R. 378 A23-24 Pun. Art. 134 APPENDIX 23
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(1968). As a result, there has been some confusion concerning p l e a d i n g a n d p r o v i n g k i d n a p p i n g i n c o u r t s - m a r t i a l . S e e , e . g . , United States v. Smith , 8 M.J. 522 (A.C.M.R. 1979); United States v. DiGiulio , 7 M.J. 848 (A.C.M.R. 1979); United States v. Perkins, supra. After United States v. Picotte, supra , was decided, 18 U.S.C. § 1201 was amended to include kidnapping within the special maritime and territorial jurisdiction of the United States. Pub.L. 92–539, § 201, 86 Stat. 1072 (1972). Consequently, reference to state law through 18 U.S.C. § 13 is no longer necessary (or authorized) in most cases. See United States v. Perkins, supra. Nevertheless, there remains some uncertainty concerning kidnap- ping as an offense in the armed forces, as noted above. This paragraph should eliminate such uncertainty, as well as any dif- ferent treatment of kidnapping in different places. b. Elements. The elements are based on 18 U.S.C. § 1201. The language in that statute “for ransom or reward or otherwise” has been deleted. This language has been construed to mean that no specific purpose is required for kidnapping. United States v. Hea- ly, 376 U.S. 75 (1964); Gooch v. United States 297 U.S. 124 (1936); Gawne v. United States , 409 F.2d 1399 (9th Cir. 1969), cert. denied 397 U.S. 943 (1970). Instead it is required that the holding be against the will of the victim. See Chatwin v. United States, 326 U.S. 455 (1946); 2 E. Devitt and C. Blackmar, Fed- e r a l J u r y P r a c t i c e a n d I n s t r u c t i o n s § 4 3 . 0 9 ( 1 9 7 7 ) ; M i l i t a r y Judges’ Benchbook, supra at paragraph 3–190. See also Amsler v. United States , 381 F.2d 37 (9th Cir. 1967); Davidson v. United States, 312 F.2d 163 (8th Cir. 1963). c. Explanation. Subparagraph (1) is based on United States v. Hoog, 504 F.2d 45 (8th Cir. 1974), cert. denied , 420 U.S. 961 (1975). See also 2 E. Devitt and C. Blackmar, supra at § 43.05. Subparagraph (2) is based on United States v. DeLaMotte , 434 F.2d 289 (2d Cir. 1970), cert. denied , 401 U.S. 921 (1971); United States v. Perkins, supra. See generally 1 Am.Jur. 2d Ab- duction and Kidnapping § 2 (1962). Subparagraph (3) is based on Chatwin v. United States, supra ; 2 E. Devitt and C. Blackmar, supra at § 43.09. See also Hall v. United States, 587 F.2d 177 (5th Cir.), cert. denied, 441 U.S. 961 (1979); Military Judges’ Benchbook, supra , paragraph 3–190. Subparagraphs (4) and (5) are based on 18 U.S.C. § 1201; 2 E. Devitt and C. Blackmar, supra § § 43.05, 43.06, 43.10. See also U n i t e d S t a t e s v . H o o g , s u p r a . T h e s e c o n d s e n t e n c e i n s u b - paragraph (4) is also based on United States v. Healy, supra. See also United States v. Smith, supra. The second sentence in sub- paragraph (5) is based on United States v. Picotte, supra. See also United States v. Martin , 4 M.J. 852 (A.C.M.R. 1978). The last sentence in subsection (5) is based on 18 U.S.C. § 1201. A parent taking a child in violation of a custody decree may violate state law or 18 U.S.C. § 1073. See 18 U.S.C.A. § 1073 Historical and Revision Note (West Supp. 1982). See also paragraph 60 c(4). e. Maximum punishment. The maximum punishment is based on 18 U.S.C. § 1201. See also United States v. Jackson, supra. 93. Article 134—(Mail: taking, opening, secreting, destroying, or stealing) c. Explanation. This paragraph and is based on United States v. Gaudet, 11 U.S.C.M.A. 672, 29 C.M.R. 488 (1960); United States v. Manausa , 12 U.S.C.M.A. 37, 30 C.M.R. 37 (1960). This of- fense is not preempted by Article 121. See United States v. Gaudet, supra. See also paragraph 60. 94. Article 134—(Mails: depositing or causing to be deposited obscene matters in) c. Explanation. This paragraph and is based on United States v. Holt, 12 U.S.C.M.A. 471, 31 C.M.R. 57 (1961); United States v. Linyear, 3 M.J. 1027 (N.C.M.R. 1977). See also Hamling v. United States, 418 U.S. 87 (1974); Miller v. California , 413 U.S. 15 (1973). f. Sample specifications. “Lewd” and “lascivious” were elimi- nated because they are synonymous with “obscene.” See Analy- sis, paragraph 90 c. 95. Article 134—(Misprision of serious offense) c. Explanation. This paragraph is based on paragraph 213 f(6) of MCM, 1969 (Rev.). The term “serious offense” is substituted for “felony” to make clear that concealment of serious military of- fenses, as well a serious civilian offenses, is an offense. Subsec- tion (1) is based on Black’s Law Dictionary 902 (5th ed. 1979). See also United States v. Daddano , 432 F.2d 1119 (7th Cir. 1970 ); United States v. Perlstein , 126 F.2d 789 (3d Cir.), cert. denied, 316 U.S. 678 (1942); 18 U.S.C. § 4. 96. Article 134—(Obstructing justice) c. Explanation. This paragraph and is based on United States v. Favors, 48 C.M.R. 873 (A.C.M.R. 1974). see also 18 U.S.C. § § 1503, 1505, 1510, 1512, 1513; United States v. Chodkowski , 11 M.J. 605 (A.F.C.M.A. 1981). f. Sample specification. 1991 Amendment: The form specification was amended by deleting the parentheses encompassing “wrongfully” as this lan- guage is not optional, but is a required component of a legally sufficient specification. 96a. Article 134—(Wrongful interference with an adverse administrative proceeding) 1993 Amendment: Paragraph 96 a and proscribes conduct that o b s t r u c t s a d m i n i s t r a t i v e p r o c e e d i n g s . S e e g e n e r a l l y 1 8 U . S . C . § 1505, Obstruction of proceedings before departments, agencies, and committees. This paragraph, patterned after paragraph 96, covers obstruction of certain administrative proceedings not cur- rently covered by the definition of criminal proceeding found in paragraph 96 c. This paragraph is necessary given the increased number of administrative actions initiated in each service. 97. Article 134—(Pandering and prostitution) 2016 Amendment: Paragraph 97 was amended to broaden the definition of prostitution and pandering to include all sexual acts, not just sexual intercourse. This amendment included the removal of the language in paragraph 97.c suggesting that engaging in sodomy for money or compensation could be charged under para- graph 51 (Article 125—Sodomy). Pursuant to section 1707 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, consensual sodomy is no longer a crime under the UCMJ and Article 125 is not an appropriate charge for the consensual exchange of money for sodomy. The definition of prostitution for this offense differs from the defini- A23-25 Pun. Art. 134ANALYSIS OF PUNITIVE ARTICLES
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tion of prostitution in Article 120c. Congress provided a broader definition of prostitution when criminalizing forcible pandering. c. Explanation. This paragraph and is based on United States v. Adams, 18 U.S.C.M.A. 310, 40 C.M.R. 22 (1966); United State v. Bohannon, 20 C.M.R. 870 (A.F.B.R. 1955). e. Maximum punishment. The maximum punishment for prostitu- tion is based on 18 U.S.C. § 1384. 2007 Amendment : This paragraph has been amended. The act of compelling another person to engage in an act of prostitution with another person will no longer be punished under paragraph 97 and has been replaced by a new offense under paragraph 45. See Article 120(l) Forcible Pandering. 2005 Amendment : b. Elements. Subparagraph (2) defines the elements of the offense of patronizing a prostitute. Old sub- paragraphs (2) and (3) are now (3) and (4) respectively. 97a. Article 134—(Parole, Violation of) 1998 Amendment: The addition of paragraph 97a to Part IV, Punitive Articles, makes clear that violation of parole is an of- fense under Article 134, UCMJ. Both the 1951 and 1969 Manuals for Courts-Martial listed the offense in their respective Table of Maximum Punishments. No explanatory guidance, however, was contained in the discussion of Article 134, UCMJ in the Manual for Courts-Martial. The drafters added paragraph 97a to ensure that an explanation of the offense, to include its elements and a sample specification, is contained in the Manual for Courts-Mar- tial, Part IV, Punitive Articles. See generally United States v. Faist, 41 C.M.R. 720 (ACMR 1970); United States v. Ford, 43 C.M.R. 551 (ACMR 1970). 98. Article 134—(Perjury: subornation of) c. Explanation. This paragraph. It is based on 18 U.S.C. § 1622 which applies to any perjury. See 18 U.S.C. § 1621. See generally R. Perkins, Criminal Law 466–67 (2d ed. 1969). See also the Analysis, paragraph 57; United States v. Doughty , 14 U.S.C.M.A. 540, 34 C.M.R. 320 (1964)(res judicata); United States v. Smith , 49 C.M.R. 325 (N.C.M.R. 1974) (pleading). 99. Article 134—(Public record: altering, concealing, removing mutilating, obliterating, or destroying) c. Explanation. This paragraph and is based on Mil.R.Evid. 80 3(8), but does not exclude certain types of records which are inadmissible under Mil. R. Evid. 803(8) for policy reasons. See United States v. Maze , 21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) for a discussion of one of these offenses in relation to the doctrine of preemption. See generally 18 U.S.C. § 2071. f. Sample specification. The specification contained in Appendix 6c, no. 172, from MCM, 1969 (Rev.) was modified by deleting the word “steal” because this would be covered by “remove.” 100. Article 134—(Quarantine: medical, breaking) b. Elements. The word “duly” has been deleted from the elements of this offense for the same reasons explained in Analysis, para- graph 19. c. Explanation. Putting a person “on quarters” or other otherwise excusing a person from duty because of illness does not of itself constitute a medical quarantine. f. Sample specification. Sample specification no. 173, Appendix 6c of MCM, 1969 (Rev.) was modified based on the deletion of the word “duly,” as explained in the analysis to paragraph 19. See subparagraph b, above. 100a. Article 134—(Reckless endangerment) c. Explanation. This paragraph and is based on United States v. Woods, 28 M.J. 318 (C.M.A. 1989); see also Md. Ann. Code art. 27, § 120. The definitions of “reckless” and “wanton” have been taken from Article 111 (drunken or reckless driving). The defini- tion of “likely to produce grievous bodily harm” has been taken from Article 128 (assault). 2004 Amendment: The sample specification was amended to add the word “wantonly” to make the sample specification consis- tent with the elements. The phrase “serious bodily harm” has been changed to read “grievous bodily harm” in the sample speci- fication to parallel the language in the elements. Similarly, in the Explanation, the phrase “serious injury” was modified to read “grievous bodily harm.” The format of the sample specification was also modified to follow the format of other sample specifica- tions in the MCM. 101. Article 134—(Requesting commission of an offense) Introduction. This offense to the Manual for Courts-Martial, and is based on United States v. Benton , 7 M.J. 606 (N.C.M.R. 1979), pet. denied , 8 M.J. 227 (1980). c. Explanation. This paragraph is based on United States v. Ben- ton, supra. See also United States v. Oakley , 7 U.S.C.M.A. 733, 23 C.M.R. 197 (1957). e. Maximum punishment. The maximum punishment is based on United States v. Oakley, supra. 1990 Amendment: The offense of “requesting the commission of an offense”’ was deleted. Solicitation of another to commit an offense, whether prosecuted under Article 82 or 134, UCMJ, is a specific intent offense. See United States v. Mitchell , 15 M.J. 214 (C.M.A. 1983). The preemption doctrine precludes the creation of a lesser included offense of solicitation which does not require specific intent. See United States v. Taylor , 23 M.J. 314 (C.M.A. 1987). 102. Article 134—(Restriction; breaking) Elements. The word “duly” has been deleted from the ele- ments of this offense, for the same reasons explained in Analysis, paragraph 19. c. Explanation. This paragraph and is based on paragraph 20 b , 126g, 131 c, and 174 b of MCM, 1969 (Rev.). See also United States v. Haynes , 15 U.S.C.M.A. 122, 35 C.M.R. 94 (1964). f. Sample specification. Sample specification no. 175, appendix 6c of MCM, 1969 (Rev.) was modified based on the deletion of the word “duly,” as explained in the analysis of paragraph 19. See subparagraph b, above. A23-26 Pun. Art. 134 APPENDIX 23
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103. Article 134—(Seizure: destruction, removal, or disposal of property to prevent) Introduction. This offense. It is based on 18 U.S.C. § 2232. See generally United States v. Gibbons , 463 F.2d 1201 (3d Cir. 1972); United States v. Bernstein , 287 F.Supp. 84 (S.D. Fla. 1968); United States v. Fishel , 12 M.J. 602 (A.C.M.R. 1981), pet denied, 13 M.J. 20. See also the opinion in United States v. Gibbons, 331 F.Supp. 970 (D.Del. 1971). c. Explanation. The second sentence is based on United States v. Gibbons, supra. Cf. United States v. Ferrone , 438 F.2d 381 (3d Cir.), cert. denied , 402 U.S. 1008 (1971). e. Maximum punishment. The maximum punishment is based on 18 U.S.C. § 2232. 103a. Article 134—(Self-injury without intent to avoid service) c. Explanation. 1995 Amendment: This offense is based on para- graph 183 a of MCM, U.S. Army, 1949; United States v. Ramsey , 35 M.J. 733 (A.C.M.R. 1992), aff’d, 40 M.J. 71 (C.M.A. 1994); United States v. Taylor , 38 C.M.R. 393 (C.M.A. 1968); see gen- erally TJAGSA Practice Note, Confusion About Malingering and Attempted Suicide , The Army Lawyer, June 1992, at 38. e. Maximum punishment. 1995 Amendment: The maximum pun- ishment for subsection (1) reflects the serious effect that this offense may have on readiness and morale. The maximum pun- ishment reflects the range of the effects of the injury, both in degree and duration, on the ability of the accused to perform work, duty, or service. The maximum punishment for subsection (1) is equivalent to that for offenses of desertion, missing move- ment through design, and certain violations of orders. The maxi- mum punishment for subsection (2) is less than the maximum punishment for the offense of malingering under the same cir- cumstances because of the absence of the specific intent to avoid work, duty, or service. The maximum punishment for subsection (2) is equivalent to that for nonaggravated offenses of desertion, willfully disobeying a superior commissioned officer, and nonag- gravated malingering by intentional self-inflicted injury. f. Sample specification. 1995 Amendment: See appendix 4, para- graph 177 of MCM, U.S. Army, 1949. Since incapacitation to perform duties is not an element of the offense, language relating to “unfitting himself for the full performance of military service” from the 1949 MCM has been omitted. The phrase “willfully injure” has been changed to read “intentionally injure” to parallel the language contained in the malingering specification under Article 115. 104. Article 134—(Sentinel or lookout: offenses against or by) c. Explanation. This paragraph. See Analysis, paragraph 13 and Analysis, paragraph 38. The definition of “loiter” is taken from United States v. Muldrow , 48 C.M.R. 63, 65n. 1 (A.F.C.M.R. 1973). e. Maximum punishment. The maximum punishment for loitering or wrongfully sitting on post by a sentinel or lookout was in- creased because of the potentially serious consequences of such misconduct. Cf. Article 113. 105. Article 134—(Soliciting another to commit an offense) b. Elements. See United States v. Mitchell , 15 M.J. 214 (C.M.A. 1983); the Analysis, paragraph 6. See also paragraph 101. c. Explanation. See the Analysis, paragraph 6. d. Lesser included offenses. See United States v. Benton , 7 M.J. 606 (N.C.M.R. 1979), pet. denied , 8 M.J. 227 (1980). 1990 Amendment: Listing of “Article 134 — Requesting an- other to commit an offense, wrongful communication of lan- g u a g e ” a s a l e s s e r i n c l u d e d o f f e n s e o f s o l i c i t i n g a n o t h e r t o commit an offense was deleted in conjunction with the deletion of such a request as a substantive offense. See United States v. Taylor, 23 M.J. 314 (C.M.A. 1987); and, the Analysis, paragraph 101. e. Maximum punishment. See United States v. Benton, supra. 1986 Amendment: The Committee considered maximum im- prisonment for 5 years inappropriate for the offense of solicitation to commit espionage under new Article 106a. A maximum pun- ishment authorizing imprisonment for life is more consistent with the serious nature of the offense of espionage. 106. Article 134—(Stolen property: knowingly receiving, buying, concealing) c. Explanation. This paragraph is based on paragraph 213 f(14) of MCM, 1969 (Rev.). and United States v. Cartwright , 13 M.J. 174 (C.M.A. 1982); United States v. Ford , 12 U.S.C.M.A. 3, 30 C.M.R. 3 (1960). See United States v. Rokoski , 30 C.M.R. 433 (A.B.R. 1960) concerning knowledge. See also United States v. Bonavita, 21 U.S.C.M.A. 407, 45 C.M.R. 181 (1972), concerning this offense in general. e. Maximum punishment. The maximum punishments have been revised. Instead of three levels (less than $50, $50 to $100, and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in property offenses in civilian jurisdictions. 2002 Amendment: The monetary amount affecting the maxi- mum punishments has been revised from $100 to $500 to account for inflation. The last change was in 1969 raising the amount to $100. The value has also been readjusted to realign it more closely with the division between felony and misdemeanor penal- ties in civilian jurisdictions. See generally American Law Insti- tute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting $500 as the value). 107. Article 134—(Straggling) c. Explanation. This paragraph and is based on Military Judges’ Benchbook, DA PAM 27–9, paragraph 3–180 (May 1982). 108. Article 134—(Testify: wrongful refusal) c. Explanation. This paragraph and is based on United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). See also United States v. Quarles , 50 C.M.R. 514 (N.C.M.R. 1975). f . S a m p l e s p e c i f i c a t i o n . “ D u l y a p p o i n t e d ” w h i c h a p p e a r e d i n front of the words “board of officers” in sample specification no. 174, Appendix 6 of MCM, 1969 (Rev.) was deleted. This is because all of the bodies under this paragraph must be properly convened or appointed. Summary courts-martial were expressly A23-27 Pun. Art. 134ANALYSIS OF PUNITIVE ARTICLES
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added to the sample specification to make clear that this offense may occur before a summary court-martial. 109. Article 134—(Threat or hoax: bomb) Introduction. This offense to the Manual for Courts-Martial. It is based generally on 18 U.S.C. § 844(e) and on Military J u d g e s ’ B e n c h b o o k , D A P A M 2 7 – 9 , p a r a g r a p h 3 – 1 8 9 ( M a y 1982). Bomb hoax has been recognized as an offense under clause 1 of Article 134. United States v. Mayo , 12 M.J. 286 (C.M.R. 1982). c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n M i l i t a r y J u d g e s ’ Benchbook, supra at paragraph 3–189. 2005 Amendment : This paragraph has been expanded to state the various means by which a threat or hoax is based. Whereas explosives were the instruments most commonly used in the past, new types of weapons have developed. Included in the new types of methods by which a threat or hoax is based are: weapons of mass destruction; chemical agents, substances, or weapons; bio- logical agents, substances, or weapons; and hazardous materials. The definitions used in this amendment are based on the follow- ing U.S. Code provisions: 40 U.S.C. § 2302 (weapons of mass destruction); 22 U.S.C. § 6701 (chemical weapons); 50 U.S.C. § 1520a (biological agents); and 49 U.S.C. § 5301 (hazardous material). e. Maximum punishment. The maximum punishment is based on 18 U.S.C. § 844(e). 2005 Amendment : This amendment increases the maximum punishment currently permitted under paragraph 109 from five years to ten years. Ten years is the maximum period of confine- ment permitted under 18 U.S.C. § 844(e), the U.S. Code section upon which the original paragraph 109 is based. 110. Article 134—(Threat, communicating) c. Explanation. This paragraph is taken from paragraph 213 f(10) of MCM, 1969 (Rev.). See also United States v. Gilluly , 13 U.S.C.M.A. 458, 32 C.M.R. 458 (1963); United States v. Frayer , 11 U.S.C.M.A. 600, 29 C.M.R. 416 (1960). 2016 Amendment : Subparagraph c. was amended following the Supreme Court’s decision in Elonis v. United States , 135 S. Ct. 2001 (2015). 111. Article 134—(Unlawful entry) c. Explanation. This paragraph and is based on United States v. Breen, 15 U.S.C.M.A. 658, 36 C.M.R. 156 (1966); United States v. Gillin, 8 U.S.C.M.A. 669, 25 C.M.R. 173 (1958); United States v. Love , 4 U.S.C.M.A. 260, 15 C.M.R. 260 (1954). See also United States v. Wickersham , 14 M.J. 404 (C.M.A. 1983) (storage area); United States v. Taylor , 12 U.S.C.M.A. 44, 30 C.M.R. 44 (1960) (aircraft); United States v. Sutton , 21 U.S.C.M.A. 344, 45 C.M.R. 118 (1972) (tracked vehicle); United States v. Selke , 4 M . J . 2 9 3 ( C . M . A . 1 9 7 8 ) ( s u m m a r y d i s p o s i t i o n ) ( C o o k , J . , dissenting). 112. Article 134—(Weapon: concealed, carrying) c. Explanation. This paragraph and is based on United States v. Tobin, 17 U.S.C.M.A. 625, 38 C.M.R. 423 (1968); United States v. Bluel, 10 U.S.C.M.A. 67, 27 C.M.R. 141 (1958); United States v. Thompson , 3 U.S.C.M.A. 620, 14 C.M.R. 38 (1954). Subsec- t i o n ( 3 ) i s b a s e d o n U n i t e d S t a t e s v . B i s h o p , 2 M . J . 7 4 1 (A.F.C.M.R. 1977), pet. denied , 3 M.J. 184 (1977). 113. Article 134—(Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button). e. Maximum punishment. The maximum punishment has been increased to include a bad-conduct discharge because this offense often involves deception. A23-28 Pun. Art. 134 APPENDIX 23
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APPENDIX 24 ANALYSIS OF NONJUDICIAL PUNISHMENT PROCEDURE 1. General c. Purpose. This paragraph is based on the legislative history of Article 15, both as initially enacted and as modified in 1962. See generally H.R.Rep. No. 491, 81st Cong., 1st Sess. 14–15 (1949); S.Rep. No. 1911, 87th Cong., 2d Sess. (1962). d. Policy. Subparagraph (1) is based on paragraph 129 a of MCM, 1969 (Rev.). Subparagraph (2) is based on the last sentence of paragraph 129a of MCM, 1969 (Rev.) and on service regulations. See, e.g., AR 27–10, para. 3–4 b (1 Sep. 1982); JAGMAN sec. 0 101. Cf. Article 37. Subparagraph (3) is based on the second paragraph 129 b of MCM, 1969 (Rev.). e. Minor offenses. This paragraph is derived from paragraph 128 b of MCM, 1969 (Rev.), service regulations concerning “minor offenses” ( see, e.g. , AR 27–10, para. 3–3 d (1 Sep. 1982); AFR 111–9, para. 3 a(3) (31 Aug. 1979)); United States v. Fretwell, 11 U.S.C.M.A. 377, 29 C.M.R. 193 (1960). The intent of the para- graph is to provide the commander with enough latitude to appro- priately resolve a disciplinary problem. Thus, in some instances, the commander may decide that nonjudicial punishment may be appropriate for an offense that could result in a dishonorable discharge or confinement for more than 1 year if tried by general court-martial, e.g., failure to obey an order or regulation. On the other hand, the commander could refer a case to a court-martial that would ordinarily be considered at nonjudicial punishment, e.g., a short unauthorized absence, for a servicemember with a long history of short unauthorized absences, which nonjudicial punishment has not been successful in correcting. f. Limitations on nonjudicial punishment. (1) Double punishment prohibited. This subparagraph is taken from the first paragraph of paragraph 128 d of MCM, 1969 (Rev.). Note that what is prohibited is the service of punishment twice. Where nonjudicial punishment is set aside, this does not necessar- ily prevent reimposition of punishment and service of punishment not previously served. (2) Increase in punishment prohibited. This paragraph is taken from the second paragraph of paragraph 128 d of MCM, 1969 (Rev.). (3) Multiple punishment prohibited. This paragraph is based on the guidance for court-martial offenses, found in paragraph 30g and 33 h of MCM, 1969 (Rev.). (4) Statute of limitations. This paragraph restates the require- ments of Article 43(c) regarding nonjudicial punishment. (5) Civilian courts. This paragraph is derived from service regulations ( see, e.g. , AR 27–10, chap. 4 (1 Sep. 1982)) and is intended to preclude the possibility of a servicemember being punished by separate jurisdictions for the same offense, except in unusual cases. g. Relationship of nonjudicial punishment to administrative cor- rective measures. This paragraph is derived from paragraph 128 c of MCM, 1969 (Rev.) and service regulations. See, e.g. , AR 27–10, para. 3–4 (1 Sep. 1982). h. 2005 Amendment: Subsection (h) is new. This subsection was added to clarify that nonjudicial punishment proceedings con- ducted in a combatant or joint command are to be conducted in accordance with the implementing regulations and procedures of the service of which the accused is a member. i. Effect of errors. This paragraph is taken from paragraph 130 of MCM, 1969 (Rev.). 2. Who may impose nonjudicial punishment This paragraph is taken from paragraph 128 a of MCM, 1969 (Rev.) and service regulations. See, e.g., AR 27–10, para. 3–7 (1 Sep. 1982); JAGMAN sec. 0101; AFR 111–9, para. 3 (31 Aug. 1979). Additional guidance in this area is left to Secretarial regu- lation, in accordance with the provisions of Article 15(a). 2005 Amendment : Subsection (2) was amended to clarify the authority of the commander of a joint command to impose non- judicial punishment upon service members of the joint command. 3. Right to demand trial This paragraph is taken from Article 15(a) and paragraph 132 of MCM, 1969 (Rev.). 4. Procedure This paragraph is based on paragraph 133 of MCM, 1969 (Rev.) and service regulations. It provides a uniform basic proce- dure for nonjudicial punishment for all the services. Consistent with the purposes of nonjudicial punishment ( see S.Rep. No. 1911, 87th Cong. 2d Sess. 4 (1962)) it provides due process protections and is intended to meet the concerns expressed in the Memorandum of Secretary of Defense Laird, 11 January 1973. See also United States v. Mack , 9 M.J. 300, 320–21 (C.M.A. 1980). The Report of the Task Force on the Administration of Military Justice in the Armed Forces, 1972, and GAO Report to the Secretary of Defense, Better Administration of Military Article 15 Punishments for Minor Offenses is Needed , September 2, 1980 , were also considered. Note that there is no right to consult with counsel before deciding whether to demand trial by court-martial. Unless other- wise prescribed by the Secretary concerned, the decision whether to permit a member to consult with counsel is left to the com- mander. In United States v. Mack, supra, records of punishments where such opportunity was not afforded (except when the mem- ber was attached to or embarked in a vessel) were held inadmissi- ble in courts-martial. 1986 Amendment: Subparagraph (c)(2) was amended to state clearly that a servicemember has no absolute right to refuse to appear personally before the person administering the nonjudicial p u n i s h m e n t p r o c e e d i n g . I n a d d i t i o n , P a r t V w a s a m e n d e d throughout to use the term “nonjudicial punishment authority” in circumstances where the proceeding could be administered by a commander, officer in charge, or a principal assistant to a general court-martial convening authority or general or flag officer. 5. Punishments This paragraph is taken from paragraph 131 of MCM, 1969 (Rev.). Subparagraph b(2)(b)4 is also based on S.Rep. 1911, 87th Cong., 1st Sess. 7 (1962). Subparagraph c(4) is also based on id. at 6–7 and Hearings Before a Subcomm. of the House Comm. on Armed Services , 87th Cong., 1st Sess. 33 (1962). Detention of A24-1
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pay was deleted as a punishment because under current central- ized pay systems, detention of pay is cumbersome, ineffective, and seldom used. The concept of apportionment, authorized in Article 15(b) and set forth in paragraph 131 d of MCM, 1969 (Rev.), was eliminated as unnecessary and confusing. According- ly, the Table of Equivalent Punishments is no longer necessary. Subparagraph d, in concert with the elimination of the appor- tionment concept, will ease the commanders burden of determin- ing an appropriate punishment and make the implementation of that punishment more efficient and understandable. 1987 Amendment: Subparagraph e was redesignated as sub- paragraph g and new subparagraphs e and f were added to imple- ment the amendments to Articles 2 and 3, UCMJ, contained in the “Military Justice Amendments of 1986,” tit. VIII, § 804, Na- tional Defense Authorization Act for fiscal year 1987, Pub. L. No. 99–661, 100 Stat. 3905 (1986). 1990 Amendment: Subsection (c)(8) was amended to incorpo- rate the statutory expansion of jurisdiction over reserve compo- nent personnel provided in the Military Justice Amendments of 1990, tit. XIII, § 1303, National Defense Authorization Act of Fiscal Year 1990, Pub. L. 101–189, 103 Stat. 1352 (1989). 2 0 0 7 A m e n d m e n t : P a r a g r a p h 5 . c . ( 8 ) w a s a m e n d e d b e c a u s e Hardship Duty Pay (HDP) superseded Foreign Duty Pay (FDP) on 3 February 1999. HDP is payable to members entitled to basic pay. The Secretary of Defense has established that HDP will be paid to members (a) for performing specific missions, or (b) when assigned to designated areas. 6. Suspension, mitigation, remission, and setting aside This paragraph is taken from Article 15, paragraph 134 of MCM 1969 (Rev.), and service regulations. See e.g. , AR 27–10, paras. 3–23 through 3–28 (1 Sep. 1982); JAGMAN sec. 0101; AFR 111–9, para 7 (31 Aug 1979). Subparagraph a dealing with suspension was expanded to: require a violation of the code during the period of suspension as a basis for vacation action, and to explain that vacation action is not in itself nonjudicial punish- ment and does not preclude the imposition of nonjudicial punish- ment for the offenses upon which the vacation action was based. S u b p a r a g r a p h a ( 4 ) p r o v i d e s a p r o c e d u r e f o r v a c a t i o n o f s u s - pended nonjudicial punishment. This procedure parallels the pro- c e d u r e f o u n d s u f f i c i e n t t o m a k e a d m i s s i b l e i n c o u r t s - m a r t i a l records of vacation of suspended nonjudicial punishment. United States v. Covington , 10 M.J. 64 (C.M.A. 1980). 1990 Amendment: A new subsection a(4) was added to permit punishment imposed under Article 15 to be suspended based on conditions in addition to violations of the UCMJ. This affords the same flexibility given to authorities who suspend punishment adjudged at court-martial under R.C.M. 1108(c). Experience has demonstrated the necessity and utility of such flexibility in the nonjudicial punishment context. 7. Appeals This paragraph is taken from paragraph 135 of MCM, 1969 ( R e v . ) a n d s e r v i c e r e g u l a t i o n s d e a l i n g w i t h a p p e a l s . S e e A R 27–10, paras. 3–29 through 3–35 (1 Sep. 1982); JAGMAN 0101; AFR 111–9, para. 8 (31 Aug. 1981). Subparagraph (d) requires an appeal to be filed within 5 days or the right to appeal will be waived, absent unusual circumstances. This is a reduction from the 15 days provided for in paragraph 135 and is intended to expedite the appeal process. Subparagraph f(2) is intended to promote sound practice, that is, the superior authority should consider many factors when reviewing an appeal, and not be limited to matters submitted by the appellant or the officer impos- ing the punishment. Subparagraph f(3) provides for “additional proceedings” should a punishment be set aside due to a proce- dural error. This is consistent with court-martial practice and intended to ensure that procedural errors do not prevent appropri- ate disposition of a disciplinary matter. 8. Records of nonjudicial punishment This paragraph is taken from Article 15(g) and paragraph 133c of MCM, 1969 (Rev.). A24-2 Nonjud. Pun. 5. APPENDIX 24
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APPENDIX 25 HISTORICAL EXECUTIVE ORDERS Each Executive Order is available online at the Joint Service Committee’s website at the following ad- dress: http://jsc.defense.gov. EXECUTIVE ORDER 12473 49 Fed Reg. 17152 (Apr. 23, 1984) President Ronald W. Reagan (Apr. 13, 1984) EXECUTIVE ORDER 12484 49 Fed. Reg. 28825 (July 17, 1984) President Ronald W. Reagan (July 17, 1984) EXECUTIVE ORDER 12550 51 Fed. Reg. 6497 (Feb. 25, 1986) President Ronald W. Reagan (Feb. 19, 1986) EXECUTIVE ORDER 12586 52 Fed. Reg. 7103 (Mar. 9, 1987) President Ronald W. Reagan (Mar. 3, 1987) EXECUTIVE ORDER 12708 55 Fed. Reg. 11353 (Mar. 27, 1990) President George H.W. Bush (Mar. 23, 1990) EXECUTIVE ORDER 12767 56 Fed. Reg. 30284 (July 1, 1991) President George H.W. Bush (June 27, 1991) EXECUTIVE ORDER 12888 58 Fed. Reg. 69153 (Dec. 29, 1993) President William J. Clinton (Dec. 23, 1993) EXECUTIVE ORDER 12936 59 Fed. Reg. 59075 (Nov. 15, 1994) President William J. Clinton (Nov. 10, 1994) EXECUTIVE ORDER 12960 60 Fed. Reg. 26647 (May 17, 1995) President William J. Clinton (May 12, 1995) EXECUTIVE ORDER 13086 63 Fed. Reg. 30065 (June 2, 1998) President William J. Clinton (May 27, 1998) EXECUTIVE ORDER 13140 64 Fed. Reg. 55115 (Oct. 12, 1999) President William J. Clinton (Oct. 6, 1999) EXECUTIVE ORDER 13262 67 Fed. Reg. 18773 (Apr. 17, 2002) President George W. Bush (Apr. 11, 2002) EXECUTIVE ORDER 13365 69 Fed. Reg. 71333 (Dec. 8, 2004) President George W. Bush (Dec. 3, 2004) EXECUTIVE ORDER 13387 70 Fed. Reg. 60697 (Oct. 17, 2005) President George W. Bush (Oct. 14, 2005) EXECUTIVE ORDER 13430 72 Fed. Reg. 20213 (Apr. 23, 2007) President George W. Bush (Apr. 18, 2007) EXECUTIVE ORDER 13447 72 Fed. Reg. 56179 (Oct. 2, 2007) President George W. Bush (Sep. 28, 2007) EXECUTIVE ORDER 13468 73 Fed. Reg. 43827 (July 28, 2008) President George W. Bush (July 24, 2008) EXECUTIVE ORDER 13552 75 Fed. Reg. 54263 (Sep. 3, 2010) President Barack H. Obama (Aug 31, 2010) EXECUTIVE ORDER 13593 76 Fed. Reg. 78451 (Dec. 16, 2011) President Barack H. Obama (Dec. 13, 2011) EXECUTIVE ORDER 13643 78 Fed. Reg. 29559 (May 21, 2013) President Barack H. Obama (May 15, 2013) EXECUTIVE ORDER 13669 79 Fed. Reg. 34999 (June 18, 2014) President Barack H. Obama (June 13, 2014) A25-1
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EXECUTIVE ORDER 13696 80 Fed. Reg. 35783 (June 22, 2015) President Barack H. Obama (June 17, 2015) EXECUTIVE ORDER 13730 81 Fed. Reg. 33331 (May 26, 2016) President Barack H. Obama (May 20, 2016) EXECUTIVE ORDER 13740 81 Fed. Reg. 65175 (Sep. 22, 2016) President Barack H. Obama (Sep. 16, 2016) A25-2 APPENDIX 25
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APPENDIX 26 THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC) A26-1
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A26-3 THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
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A26-5 THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
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A26-7 THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
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A26-9 THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
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APPENDIX 27 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED PRIOR TO 1 OCTOBER 2007 The punitive articles contained in this appendix were replaced or superseded by changes to Article 120, Uniform Code of Military Justice, contained in the National Defense Authorization Act for Fiscal Year 2006. Article 120 was amended again by the National Defense Authorization Act for Fiscal Year 2012. Each version of Article 120 is located in a different part of this Manual. For offenses commit- ted prior to 1 October 2007, the relevant sexual offense provisions and analysis are contained in this appendix and listed below. For offenses committed during the period 1 October 2007 through 27 June 2 0 1 2 , t h e r e l e v a n t s e x u a l o f f e n s e p r o v i s i o n s a n d analysis are contained in Appendix 28. For offenses committed on or after 28 June 2012, the relevant sexual offense provisions are contained in Part IV of this Manual (Articles 120, 120b, and 120c). 45. Article 120—Rape and carnal knowledge a. Text. (a) Any person subject to this chapter who com- mits an act of sexual intercourse by force and with- out consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct. (b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person— (1) who is not his or her spouse; and (2) who has not attained the age of sixteen years, is guilty of carnal knowledge and shall be punished as a court-martial may direct. ( c ) P e n e t r a t i o n , h o w e v e r s l i g h t , i s s u f f i c i e n t t o complete either of these offenses. (d)(1) In a prosecution under subsection (b), it is an affirmative defense that— (A) the person with whom the accused com- mitted the act of sexual intercourse had at the time of the alleged offense attained the age of twelve years; and (B) the accused reasonably believed that the person had at the time of the alleged offense attained the age of 16 years. (2) The accused has the burden of proving a defense under subparagraph (d)(1) by a preponder- ance of the evidence. b. Elements. (1) Rape. (a) That the accused committed an act of sex- ual intercourse; and (b) That the act of sexual intercourse was done by force and without consent. (2) Carnal knowledge. (a) That the accused committed an act of sex- ual intercourse with a certain person; ( b ) T h a t t h e p e r s o n w a s n o t t h e a c c u s e d ’ s spouse; and (c)(1) That at the time of the sexual inter- course the person was under the age of 12; or (2) That at the time of the sexual intercourse the person had attained the age of 12 but was under the age of 16. c. Explanation. (1) Rape. ( a ) N a t u r e o f o f f e n s e . R a p e i s s e x u a l i n t e r - course by a person, executed by force and without consent of the victim. It may be committed on a victim of any age. Any penetration, however slight, is sufficient to complete the offense. (b) Force and lack of consent. Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of re- sistance as are called for by the circumstances, the inference may be drawn that the victim did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is over- come by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in pene- t r a t i o n w i l l s u f f i c e . A l l t h e s u r r o u n d i n g c i r c u m - stances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm. If there is actual A27-1
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consent, although obtained by fraud, the act is not rape, but if to the accused’s knowledge the victim is of unsound mind or unconscious to an extent render- ing him or her incapable of giving consent, the act is rape. Likewise, the acquiescence of a child of such tender years that he or she is incapable of under- standing the nature of the act is not consent. (c) Character of victim. See Mil. R. Evid. 412 concerning rules of evidence relating to an alleged rape victim’s character. ( 2 ) C a r n a l k n o w l e d g e . “ C a r n a l k n o w l e d g e ” i s sexual intercourse under circumstances not amount- ing to rape, with a person who is not the accused’s spouse and who has not attained the age of 16 years. A n y p e n e t r a t i o n , h o w e v e r s l i g h t , i s s u f f i c i e n t t o c o m p l e t e t h e o f f e n s e . I t i s a d e f e n s e , h o w e v e r , which the accused must prove by a preponderance of the evidence, that at the time of the act of sexual intercourse, the person with whom the accused com- mitted the act of sexual intercourse was at least 12 years of age, and that the accused reasonably be- lieved that this same person was at least 16 years of age. d. Lesser included offenses. (1) Rape. (a) Article 128—assault; assault consummated by a battery (b) Article 134—assault with intent to commit rape (c) Article 134—indecent assault (d) Article 80—attempts (e) Article 120(b)—carnal knowledge (2) Carnal knowledge. (a) Article 134—indecent acts or liberties with a person under 16 (b) Article 80—attempts e. Maximum punishment. (1) Rape. Death or such other punishment as a court-martial may direct. (2) Carnal knowledge with a child who, at the time of the offense, has attained the age of 12 years. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 20 years. (3) Carnal knowledge with a child under the age of 12 years at the time of the offense. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. f. Sample specifications. (1) Rape. In that (personal jurisdiction data), did, (at/on board — location) (subject - matter jurisdic- tion data, if required), on or about , rape, (a person under the age of 12) (a person who had attained the age of 12 but was under the age of 16). (2) Carnal knowledge. In that (personal jurisdic- tion data), did, (at/on board — location) (subject - matter jurisdiction data, if required), on or about , commit the offense of carnal knowledge with , (a person under the age of 12) (a person who attained the age of 12 but was under the age of 16). 63. Article 134—(Assault—indecent) a. Text. See paragraph 60. b. Elements. (1) That the accused assaulted a certain person not the spouse of the accused in a certain manner; (2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. See paragraph 54c for a discussion of assault. Specific intent is an element of this of- fense. For a definition of ’indecent’, see paragraph 90c. d. Lesser included offenses. (1) Article 128—assault consummated by a bat- tery; assault (2) Article 134—indecent acts (3) Article 80—attempts e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction d a t a ) , d i d ( a t / o n b o a r d — l o c a t i o n ) , ( s u b j e c t - m a t t e r jurisdiction data, if required), on or about , commit an indecent assault upon a person not his/ her wife/husband by , with intent to grat- ify his/her (lust) (sexual desires). 87. Article 134—(Indecent acts or liberties with a child) a. Text. See paragraph 60. A27-2 APPENDIX 27
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b. Elements. (1) Physical contact. (a) That the accused committed a certain act upon or with the body of a certain person; (b) That the person was under 16 years of age and not the spouse of the accused; (c) That the act of the accused was indecent; (d) That the accused committed the act with intent to arouse, appeal to, or gratify the lust, pas- sions, or sexual desires of the accused, the victim, or both; and (e) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (2) No physical contact. (a) That the accused committed a certain act; (b) That the act amounted to the taking of in- decent liberties with a certain person; (c) That the accused committed the act in the presence of this person; (d) That this person was under 16 years of age and not the spouse of the accused; (e) That the accused committed the act with the intent to arouse, appeal to, or gratify the lust, pas- sions, or sexual desires of the accused, the victim, or both; and (f) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. (1) Consent. Lack of consent by the child to the act or conduct is not essential to this offense; con- sent is not a defense. (2) Indecent liberties. When a person is charged with taking indecent liberties, the liberties must be taken in the physical presence of the child, but phys- ical contact is not required. Thus, one who with the requisite intent exposes one’s private parts to a child under 16 years of age may be found guilty of this offense. An indecent liberty may consist of commu- nication of indecent language as long as the commu- nication is made in the physical presence of the child. (3) Indecent. See paragraph 89c and 90c. d. Lesser included offense. (1) Article 134—indecent acts with another (2) Article 128—assault; assault consummated by a battery (3) Article 80—attempts e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 7 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board — location) (subject - matter jurisdiction data, if required), on or about , (take (indecent) liberties with) (commit an indecent act (upon) (with) the body of) , a (female) (male) under 16 years of age, not the (wife) (hus- band) of the said , by (fondling (her) (him) and placing his/her hands upon (her) (his) leg and private parts) ( ), with intent to (arouse) (appeal to) (gratify) the (lust) (passion) (sexual desires) of the said ( ). 88. Article 134—(Indecent exposure) a. Text. See paragraph 60. b. Elements. (1) That the accused exposed a certain part of the a c c u s e d ’ s b o d y t o p u b l i c v i e w i n a n i n d e c e n t manner; (2) That the exposure was willful and wrongful; and (3) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. “Willful” means an intentional ex- posure to public view. Negligent indecent exposure is not punishable as a violation of the code. See paragraph 90c concerning “indecent.” d. Lesser included offense. Article 80—attempts e. Maximum punishment. Bad - conduct discharge, forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), did (at/on board—location) (subject-matter ju- risdiction data, if required), on or about , while (at a barracks window) ( ) willfully and wrongfully expose in an indecent manner to public view his or her . 90. Article 134—(Indecent acts with another) a. Text. See paragraph 60. A27-3 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED PRIOR TO 1 OCTOBER 2007
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b. Elements. (1) That the accused committed a certain wrong- ful act with a certain person; (2) That the act was indecent; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. “Indecent” signifies that form of im- morality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to com- mon propriety, but tends to excite lust and deprave the morals with respect to sexual relations. d. Lesser included offense. Article 80—attempts e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), did (at/on board—location) (subject-matter ju- risdiction data, if required), on or about , w r o n g f u l l y c o m m i t a n i n d e c e n t a c t w i t h b y . Appendix 23 Analysis Follows: [Note: The analysis below was removed from Ap- pendix 23 and pertains to Article 120 and other punitive articles applicable to sexual offenses as they existed prior to the 2007 Amendment. The analysis was inserted into this appendix to accompany the version of Article 120, and other punitive sexual offense articles, applicable to offenses committed before 1 October 2007. For offenses committed dur- ing the period 1 October 2007 through 27 June 20 12, analysis related to Article 120 is contained in Appendix 27. For offenses committed on or after 28 June 2012, analysis related to Article 120, 120b, and 120c is contained in Appendix 23.] 45. Article 120—Rape and carnal knowledge b. Elements. 2004 Amendment: Paragraph 45(b)(2) was amended to add two distinct elements of age based upon the 1994 amendment to paragraph 45(e). See also concurrent change to R.C.M. 307(c)(3) and accompanying analysis. c. Explanation. This paragraph is based on para- graph 199 of MCM, 1969 (Rev.). The third para- g r a p h o f p a r a g r a p h 1 9 9 ( a ) w a s d e l e t e d a s u n n e c e s s a r y . T h e t h i r d p a r a g r a p h o f p a r a g r a p h 199(b) was deleted based on the preemption doc- t r i n e . S e e U n i t e d S t a t e s v . W r i g h t , 5 M . J . 1 0 6 ( C . M . A . 1 9 7 8 ) ; U n i t e d S t a t e s v . N o r r i s , 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953). Cf. Williams v. United States , 327 U.S. 711 (1946) (scope of preemption doctrine). The Military Rules of Evi- dence deleted the requirement for corroboration of t h e v i c t i m ’ s t e s t i m o n y i n r a p e a n d s i m i l a r c a s e s under former paragraph 153 a of MCM, 1969. See Analysis, Mil. R. Evid. 412. d. Lesser included offenses. Carnal knowledge was deleted as a lesser included offense of rape in view o f t h e s e p a r a t e e l e m e n t s i n e a c h o f f e n s e . B o t h should be separately pleaded in a proper case. See g e n e r a l l y U n i t e d S t a t e s v . S m i t h , 7 M . J . 8 4 2 (A.C.M.R. 1979). 1993 Amendment. The amendment to para 45 d(1) represents an administrative change to conform the Manual with case authority. Carnal knowledge is a lesser included offense of rape where the pleading alleges that the victim has not attained the age of 16 y e a r s . S e e U n i t e d S t a t e s v . B a k e r , 2 8 M . J . 9 0 0 (A.C.M.R. 1989); United States v. Stratton , 12 M.J. 998 (A.F.C.M.R. 1982), pet. denied , 15 M.J. 107 (C.M.A. 1983); United States v. Smith , 7 M.J. 842 (A.C.M.R. 1979). e. Maximum punishment. 1994 Amendment. Subparagraph e was amended by creating two distinct categories of carnal knowl- edge for sentencing purposes -- one involving chil- dren who had attained the age of 12 years at the time of the offense, now designated as subparagraph e(2), and the other for those who were younger than 1 2 y e a r s . T h e l a t t e r i s n o w d e s i g n a t e d a s s u b - paragraph e(3). The punishment for the older chil- dren was increased from 15 to 20 years confinement. The maximum confinement for carnal knowledge of a child under 12 years was increased to life. The purpose for these changes is to bring the punish- ments more in line with those for sodomy of a child under paragraph 51e of this part and with the Sexual Abuse Act of 1986, 18 U.S.C. §§ 2241–2245. The alignment of the maximum punishments for carnal knowledge with those of sodomy is aimed at paral- leling the concept of gender–neutrality incorporated into the Sexual Abuse Act. 1995 Amendment. The offense of rape was made gender neutral and the spousal exception was re- moved under Article 120(a). National Defense Au- A27-4 APPENDIX 27
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thorization Act for Fiscal Year 1993, Pub. L. No. 10 2–484, 106 Stat. 2315, 2506 (1992). Rape may “be punished by death” only if consti- t u t i o n a l l y p e r m i s s i b l e . I n C o k e r v . G e o r g i a , 4 3 3 U.S. 584 (1977), the Court held that the death pen- alty is “grossly disproportionate and excessive pun- ishment for the rape of an adult woman,” and is “therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” Id. at 592 (plurality opinion). Coker, however, leaves open the question of whether it is permissible to impose the death penalty for the rape of a minor by an adult. See Coker, 433 U.S. at 595. See Leatherwood v. State , 548 So.2d 389 (Miss. 1989) (death sentence for rape of minor by an adult is not cruel and unusual pun- ishment prohibited by the Eighth Amendment). But see Buford v. State , 403 So.2d 943 (Fla. 1981) (sen- tence of death is grossly disproportionate for sexual assault of a minor by an adult and consequently is forbidden by Eighth Amendment as cruel and unu- sual punishment). 1998 Amendment: In enacting section 1113 of the National Defense Authorization Act for Fiscal Year 1 9 9 6 , P u b . L . N o . 1 0 4 - 1 0 6 , 1 1 0 S t a t . 1 8 6 , 4 6 2 (1996), Congress amended Article 120, UCMJ, to make the offense gender neutral and create a mis- take of fact as to age defense to a prosecution for carnal knowledge. The accused must prove by a preponderance of the evidence that the person with whom he or she had sexual intercourse was at least 12 years of age, and that the accused reasonably believed that this person was at least 16 years of age. f . S a m p l e S p e c i f i c a t i o n . 2 0 0 4 A m e n d m e n t : P a r a - graph 45(f)(2) was amended to aid practitioners in charging the two distinct categories of carnal knowl- edge created in 1994. For the same reason paragraph 45(f)(1) was amended to allow for contingencies of proof because carnal knowledge is a lesser-included offense of rape if properly pleaded. See also concur- rent change to R.C.M.307(c)(3) and accompanying analysis. 63. Article 134—(Assault—indecent) c. Explanation. This paragraph is based on para- graph 213 f(2) of MCM, 1969 (Rev.). See United States v. Caillouette , 12 U.S.C.M.A. 149, 30 C.M.R. 149 (1961) regarding specific intent. See also United States v. Headspeth , 2 U.S.C.M.A. 635, 10 C.M.R. 133 (1953). G e n d e r - n e u t r a l l a n g u a g e h a s b e e n u s e d i n t h i s paragraph, as well as throughout this Manual. This will eliminate any question about the intended scope of certain offenses, such as indecent assault such as may have been raised by the use of the masculine pronoun in MCM, 1969 (Rev.). It is, however, con- sistent with the construction given to the former Manual. See, e.g., United States v. Respess , 7 M.J. 566 (A.C.M.R. 1979). See generally 1 U.S.C. § 1 (“unless the context indicates otherwise … words importing the masculine gender include the feminine as well ….”). d. Lesser included offenses. See United States v. Thacker, 16 U.S.C.M.A. 408, 37 C.M.R. 28 (1966); United States v. Jackson , 31 C.M.R. 738 (A.F.B.R. 1962). 2007 Amendment: This paragraph has been re- placed in its entirety by paragraph 45. See Article 1 2 0 ( e ) A g g r a v a t e d S e x u a l C o n t a c t , ( h ) A b u s i v e Sexual Contact, and (m) Wrongful Sexual Contact. 87. Article 134—(Indecent acts or liberties with a child) c. Explanation. This paragraph is based on para- g r a p h 2 1 3 f ( 3 ) o f M C M , 1 9 6 9 ( R e v . ) . S e e a l s o United States v. Knowles , 15 U.S.C.M.A. 404, 35 C . M . R . 3 7 6 ( 1 9 6 5 ) ; U n i t e d S t a t e s v . B r o w n , 3 U . S . C . M . A . 4 5 4 , 1 3 C . M . R . 4 5 4 , 1 3 C . M . R . 1 0 ( 1 9 5 3 ) ; U n i t e d S t a t e s v . R i f f e , 2 5 C . M . R . 6 5 0 (A.B.R. 1957), pet. denied , 9 U.S.C.M.A. 813, 25 C.M.R. 486 (1958). “Lewd” and “lascivious” were deleted because they are synonymous with indecent. See id. See also paragraph 90c. 2007 Amendment. This paragraph has been re- placed in its entirety by paragraph 45. See Article 120 (g) Aggravated Sexual Contact with a Child, (i) Abusive Sexual Contact with a Child, and (j) Inde- cent Liberty with Child. 88. Article 134—(Indecent exposure) c . E x p l a n a t i o n . T h i s p a r a g r a p h a n d i s b a s e d o n U n i t e d S t a t e s v . M a n o s , 8 U . S . C . M . A . 7 3 4 , 2 5 C.M.R. 238 (1958). See also United States v. Caune , 22 U.S.C.M.A. 200, 46 C.M.R. 200 (1973); United States v. Conrad , 15 U.S.C.M.A. 439, 35 C.M.R. 411 (1965). e. Maximum punishment. The maximum punishment has been increased to include a bad-conduct dis- A27-5 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED PRIOR TO 1 OCTOBER 2007
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c h a r g e . I n d e c e n t e x p o s u r e i n s o m e c i r c u m s t a n c e s (e.g., in front of children, but without the intent to incite lust or gratify sexual desires necessary for indecent acts or liberties) is sufficiently serious to authorize a punitive discharge. 2007 Amendment : This paragraph has been re- placed in its entirety by paragraph 45. See Article 120(n) Indecent Exposure. 90. Article 134—(Indecent acts with another) c. Explanation. This and is based on United States v . H o l l a n d , 1 2 U . S . C . M . A . 4 4 4 , 3 1 C . M . R . 3 0 (1961); United States v. Gaskin , 12 U.S.C.M.A. 419, 31 C.M.R. 5 (1962); United States v. Sanchez , 11 U . S . C . M . A . 2 1 6 , 2 9 C . M . R . 3 2 ( 1 9 6 0 ) ; U n i t e d S t a t e s v . J o h n s o n , 4 M . J . 7 7 0 ( A . C . M . R . 1 9 7 8 ) . “Lewd” and “lascivious” have been deleted as they are synonymous with “indecent.” See id. A27-6 APPENDIX 27
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APPENDIX 28 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012 The punitive articles contained in this appendix were replaced or superseded by Articles 120, 120b, a n d 1 2 0 c , U n i f o r m C o d e o f M i l i t a r y J u s t i c e , a s amended or established by the National Defense Au- thorization Act for Fiscal Year 2012. Article 120 was previously amended by the National Defense Authorization Act for Fiscal Year 2006. Each ver- sion of Article 120 is located in a different part of this Manual. For offenses committed prior to 1 Oc- tober 2007, the relevant sexual offense provisions are contained in Appendix 27. For offenses commit- ted during the period 1 October 2007 through 27 June 2012, the relevant sexual offense provisions are contained in this appendix and listed below. For offenses committed on or after 28 June 2012, the relevant sexual offense provisions are contained in Part IV of this Manual (Articles 120, 120b, and 120c). 45. Article 120—Rape, sexual assault, and other sexual misconduct a. Text of statute. (a) Rape. Any person subject to this chapter who causes another person of any age to engage in a sexual act by— (1) using force against that other person; ( 2 ) c a u s i n g g r i e v o u s b o d i l y h a r m t o a n y person; (3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; ( 4 ) r e n d e r i n g a n o t h e r p e r s o n u n c o n s c i o u s ; or (5) administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the ability of that other person to ap- praise or control conduct; is guilty of rape and shall be punished as a court-martial may direct. (b) Rape of a child. Any person subject to this chapter who— (1) engages in a sexual act with a child who has not attained the age of 12 years; or (2) engages in a sexual act under the cir- c u m s t a n c e s d e s c r i b e d i n s u b s e c t i o n ( a ) w i t h a child who has attained the age of 12 years; is guilty of rape of a child and shall be punished as a court-martial may direct. (c) Aggravated sexual assault. Any person sub- ject to this chapter who— (1) causes another person of any age to en- gage in a sexual act by— (A) threatening or placing that other per- son in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kid- napping); or (B) causing bodily harm; or (2) engages in a sexual act with another per- son of any age if that other person is substantially incapacitated or substantially incapable of— ( A ) a p p r a i s i n g t h e n a t u r e o f t h e s e x u a l act; ( B ) d e c l i n i n g p a r t i c i p a t i o n i n t h e s e x u a l act; or ( C ) c o m m u n i c a t i n g u n w i l l i n g n e s s t o e n - gage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court- martial may direct. (d) Aggravated sexual assault of a child. Any person subject to this chapter who engages in a sexual act with a child who has attained the age of 12 years is guilty of aggravated sexual assault of a child and shall be punished as a court-mar- tial may direct. (e) Aggravated sexual contact. Any person sub- ject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of ag- gravated sexual contact and shall be punished as a court-martial may direct. (f) Aggravated sexual abuse of a child. Any per- son subject to this chapter who engages in a lewd act with a child is guilty of aggravated sexual abuse of a child and shall be punished as a court- martial may direct. A28-1
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(g) Aggravated sexual contact with a child. Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct. (h) Abusive sexual contact. Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct. (i) Abusive sexual contact with a child. Any per- son subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (d) (aggra- vated sexual assault of a child) had the sexual contact been a sexual act, is guilty of abusive sexual contact with a child and shall be punished as a court-martial may direct. (j) Indecent liberty with a child. Any person sub- ject to this chapter who engages in indecent lib- erty in the physical presence of a child— (1) with the intent to arouse, appeal to, or gratify the sexual desire of any person; or (2) with the intent to abuse, humiliate, or degrade any person; is guilty of indecent liberty with a child and shall be punished as a court- martial may direct. ( k ) I n d e c e n t a c t . A n y p e r s o n s u b j e c t t o t h i s chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct. (l) Forcible pandering. Any person subject to this chapter who compels another person to en- gage in an act of prostitution with another person to be directed to said person is guilty of forcible pandering and shall be punished as a court-mar- tial may direct. (m) Wrongful sexual contact. Any person sub- ject to this chapter who, without legal justifica- tion or lawful authorization, engages in sexual contact with another person without that other person’s permission is guilty of wrongful sexual contact and shall be punished as a court-martial may direct. ( n ) I n d e c e n t e x p o s u r e . A n y p e r s o n s u b j e c t t o this chapter who intentionally exposes, in an in- decent manner, in any place where the conduct i n v o l v e d m a y r e a s o n a b l y b e e x p e c t e d t o b e viewed by people other than members of the ac- t o r ’ s f a m i l y o r h o u s e h o l d , t h e g e n i t a l i a , a n u s , buttocks, or female areola or nipple is guilty of i n d e c e n t e x p o s u r e a n d s h a l l b e p u n i s h e d a s a court-martial may direct. (o) Age of child. (1) Twelve years. In a prosecution under sub- section (b) (rape of a child), subsection (g) (aggra- vated sexual contact with a child), or subsection (j) (indecent liberty with a child), it need not be proven that the accused knew that the other per- son engaging in the sexual act, contact, or liberty had not attained the age of 12 years. It is not an affirmative defense that the accused reasonably believed that the child had attained the age of 12 years. ( 2 ) S i x t e e n y e a r s . I n a p r o s e c u t i o n u n d e r s u b s e c t i o n ( d ) ( a g g r a v a t e d s e x u a l a s s a u l t o f a child), subsection (f) (aggravated sexual abuse of a c h i l d ) , s u b s e c t i o n ( i ) ( a b u s i v e s e x u a l c o n t a c t with a child), or subsection (j) (indecent liberty with a child), it need not be proven that the ac- cused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 16 years. Unlike in paragraph (1), howev- er, it is an affirmative defense that the accused reasonably believed that the child had attained the age of 16 years. (p) Proof of threat. In a prosecution under this s e c t i o n , i n p r o v i n g t h a t t h e a c c u s e d m a d e a threat, it need not be proven that the accused actually intended to carry out the threat. (q) Marriage. (1) In general. In a prosecution under para- graph (2) of subsection (c) (aggravated sexual as- sault), or under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated sex- ual abuse of a child), subsection (i) (abusive sex- ual contact with a child), subsection (j) (indecent liberty with a child), subsection (m) (wrongful sexual contact), or subsection (n) (indecent expo- sure), it is an affirmative defense that the accused and the other person when they engaged in the sexual act, sexual contact, or sexual conduct were married to each other. A28-2 APPENDIX 28
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(2) Definition. For purposes of this subsec- tion, a marriage is a relationship, recognized by the laws of a competent State or foreign jurisdic- tion, between the accused and the other person as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction. (3) Exception. Paragraph (1) shall not apply if the accused’s intent at the time of the sexual conduct is to abuse, humiliate, or degrade any person. (r) Consent and mistake of fact as to consent. Lack of permission is an element of the offense in subsection (m) (wrongful sexual contact). Consent and mistake of fact as to consent are not an issue, or an affirmative defense, in a prosecution under any other subsection, except they are an affirma- tive defense for the sexual conduct in issue in a prosecution under subsection (a) (rape), subsec- tion (c) (aggravated sexual assault), subsection (e) (aggravated sexual contact), and subsection (h) (abusive sexual contact). (s) Other affirmative defenses not precluded. The enumeration in this section of some affirmative defenses shall not be construed as excluding the existence of others. (t) Definitions. In this section: ( 1 ) S e x u a l a c t . T h e t e r m “ s e x u a l a c t ” means— ( A ) c o n t a c t b e t w e e n t h e p e n i s a n d t h e v u l v a , a n d f o r p u r p o s e s o f t h i s s u b p a r a g r a p h contact involving the penis occurs upon penetra- tion, however slight; or (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (2) Sexual contact. The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another per- son, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or but- tocks of any person, with an intent to abuse, hu- miliate, or degrade any person or to arouse or gratify the sexual desire of any person. (3) Grievous bodily harm. The term “grievous bodily harm” means serious bodily injury. It in- cludes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title 18. ( 4 ) D a n g e r o u s w e a p o n o r o b j e c t . T h e t e r m “dangerous weapon or object” means— ( A ) a n y f i r e a r m , l o a d e d o r n o t , a n d whether operable or not; (B) any other weapon, device, instrument, material, or substance, whether animate or inani- mate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or ( C ) a n y o b j e c t f a s h i o n e d o r u t i l i z e d i n such a manner as to lead the victim under the circumstances to reasonably believe it to be capa- ble of producing death or grievous bodily harm. (5) Force. The term “force” means action to compel submission of another or to overcome or prevent another’s resistance by— (A) the use or display of a dangerous weapon or object; (B) the suggestion of possession of a dan- gerous weapon or object that is used in a manner t o c a u s e a n o t h e r t o b e l i e v e i t i s a d a n g e r o u s weapon or object; or (C) physical violence, strength, power, or r e s t r a i n t a p p l i e d t o a n o t h e r p e r s o n , s u f f i c i e n t that the other person could not avoid or escape the sexual conduct. (6) Threatening or placing that other person in fear. The term “threatening or placing that other person in fear” under paragraph (3) of subsec- tion (a) (rape), or under subsection (e) (aggra- vated sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping. (7) Threatening or placing that other person in fear. (A) In general. The term “threatening or placing that other person in fear” under para- graph (1)(A) of subsection (c) (aggravated sexual A28-3 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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assault), or under subsection (h) (abusive sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another being subjected to a lesser degree of h a r m t h a n d e a t h , g r i e v o u s b o d i l y h a r m , o r kidnapping. (B) Inclusions. Such lesser degree of harm includes— (i) physical injury to another person or to another person’s property; or (ii) a threat— (I) to accuse any person of a crime; (II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridi- cule; or (III) through the use or abuse of mili- t a r y p o s i t i o n , r a n k , o r a u t h o r i t y , t o a f f e c t o r threaten to affect, either positively or negatively, the military career of some person. ( 8 ) B o d i l y h a r m . T h e t e r m “ b o d i l y h a r m ” means any offensive touching of another, how- ever slight. (9) Child. The term “child” means any per- son who has not attained the age of 16 years. (10) Lewd act. The term “lewd act” means— (A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or ( B ) i n t e n t i o n a l l y c a u s i n g a n o t h e r p e r s o n to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person. (11) Indecent liberty. The term “indecent lib- erty” means indecent conduct, but physical con- tact is not required. It includes one who with the requisite intent exposes one’s genitalia, anus, but- tocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in s e x u a l c o n d u c t , i t i s a n i n d e c e n t l i b e r t y ; t h e child’s consent is not relevant. ( 1 2 ) I n d e c e n t c o n d u c t . T h e t e r m “ i n d e c e n t conduct” means that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct in- cludes observing, or making a videotape, photo- graph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another per- son’s consent, and contrary to that other person’s reasonable expectation of privacy, of— (A) that other person’s genitalia, anus, or buttocks, or (if that other person is female) that person’s areola or nipple; or (B) that other person while that other per- son is engaged in a sexual act, sodomy (under section 925 (article 125) of this chapter), or sexual contact. ( 1 3 ) A c t o f p r o s t i t u t i o n . T h e t e r m “ a c t o f prostitution” means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation. ( 1 4 ) C o n s e n t . T h e t e r m “ c o n s e n t ” m e a n s w o r d s o r o v e r t a c t s i n d i c a t i n g a f r e e l y g i v e n agreement to the sexual conduct at issue by a competent person. An expression of lack of con- sent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the man- ner of dress of the person involved with the ac- cused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if— (A) under 16 years of age; or (B) substantially incapable of— (i) appraising the nature of the sexual conduct at issue due to— ( I ) m e n t a l i m p a i r m e n t o r u n c o n - sciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or (II) mental disease or defect that ren- ders the person unable to understand the nature of the sexual conduct at issue; (ii) physically declining participation in the sexual conduct at issue; or A28-4 APPENDIX 28
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( i i i ) p h y s i c a l l y c o m m u n i c a t i n g u n w i l l - ingness to engage in the sexual conduct at issue. (15) Mistake of fact as to consent. The term “mistake of fact as to consent” means the accused held, as a result of ignorance or mistake, an in- correct belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable, the igno- rance or mistake must have been based on infor- mation, or lack of it, that would indicate to a r e a s o n a b l e p e r s o n t h a t t h e o t h e r p e r s o n c o n - s e n t e d . A d d i t i o n a l l y , t h e i g n o r a n c e o r m i s t a k e cannot be based on the negligent failure to dis- cover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar cir- cumstances. The accused’s state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasona- bly careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. (16) Affirmative defense. The term “affirma- tive defense” means any special defense that, al- though not denying that the accused committed t h e o b j e c t i v e a c t s c o n s t i t u t i n g t h e o f f e n s e charged, denies, wholly, or partially, criminal re- sponsibility for those acts. The accused has the burden of proving the affirmative defense by a p r e p o n d e r a n c e o f e v i d e n c e . A f t e r t h e d e f e n s e meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. b. Elements. (1) Rape. (a) Rape by using force. (i) That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person. (b) Rape by causing grievous bodily harm. (i) That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person. (c) Rape by using threats or placing in fear. (i) That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bod- ily harm, or kidnapping. (d) Rape by rendering another unconscious. (i) That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious. (e) Rape by administration of drug, intoxicant, or other similar substance. (i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance; (ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permis- sion of that other person; and ( i i i ) T h a t , a s a r e s u l t , t h a t o t h e r p e r s o n ’ s ability to appraise or control conduct was substan- tially impaired. (2) Rape of a child. (a) Rape of a child who has not attained the age of 12 years. (i) That the accused engaged in a sexual act with a child; and (ii) That at the time of the sexual act the child had not attained the age of twelve years. (b) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using force. (i) That the accused engaged in a sexual act with a child; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by using force against that child. (c) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm. (i) That the accused engaged in a sexual act with a child; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and ( i i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g grievous bodily harm to any person. A28-5 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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(d) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear. (i) That the accused engaged in a sexual act with a child; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by threatening or placing that child in fear that any person will be s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r kidnapping. (e) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child unconscious. (i) That the accused engaged in a sexual act with a child; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by rendering that child unconscious. (f) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance. (i) That the accused engaged in a sexual act with a child; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and ( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d - ministering to that child a drug, intoxicant, or other similar substance; (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permis- sion of that child; and (c) That, as a result, that child’s ability to a p p r a i s e o r c o n t r o l c o n d u c t w a s s u b s t a n t i a l l y impaired. (3) Aggravated sexual assault. (a) Aggravated sexual assault by using threats or placing in fear. (i) That the accused caused another person, who is of any age, to engage in a sexual act; and (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other per- son in fear that any person would be subjected to death, grievous bodily harm, or kidnapping). (b) Aggravated sexual assault by causing bod- ily harm. (i) That the accused caused another person, who is of any age, to engage in a sexual act; and (ii) That the accused did so by causing bod- ily harm to another person. (c) Aggravated sexual assault upon a person substantially incapacitated or substantially incapa- ble of appraising the act, declining participation, or communicating unwillingness. (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements) (ii) That the other person was substantially incapacitated; (iii) That the other person was substantially incapable of appraising the nature of the sexual act; (iv) That the other person was substantially incapable of declining participation in the sexual act; or (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act. (4) Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years. (a) That the accused engaged in a sexual act with a child; and (b) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years. (5) Aggravated sexual contact. (a) Aggravated sexual contact by using force. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (ii) That the accused did so by using force against that other person. ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g grievous bodily harm. A28-6 APPENDIX 28
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( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and ( i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g grievous bodily harm to any person. (c) Aggravated sexual contact by using threats or placing in fear. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (ii) That the accused did so by threatening or placing that other person in fear that any person will b e s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r kidnapping. (d) Aggravated sexual contact by rendering another unconscious. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (ii) That the accused did so by rendering that other person unconscious. (e) Aggravated sexual contact by administra- tion of drug, intoxicant, or other similar substance. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (ii)(a) That the accused did so by administer- ing to that other person a drug, intoxicant, or other similar substance; (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permis- sion of that other person; and (c) That, as a result, that other person’s abil- ity to appraise or control conduct was substantially impaired. (6) Aggravated sexual abuse of a child. (a) That the accused engaged in a lewd act; and (b) That the act was committed with a child who has not attained the age of 16 years. (7) Aggravated Sexual Contact with a Child. (a) Aggravated sexual contact with a child who has not attained the age of 12 years. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had not attained the age of twelve years. (b) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using force. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by using force against that child. (c) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained t h e a g e o f 1 6 y e a r s b y c a u s i n g g r i e v o u s b o d i l y harm. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and ( i i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g grievous bodily harm to any person. (d) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and A28-7 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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(iii) That the accused did so by threatening or placing that child or that other person in fear that any person will be subjected to death, grievous bod- ily harm, or kidnapping. (e) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by rendering another or that child unconscious. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by rendering that child or that other person unconscious. (f) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intox- icant, or other similar substance. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and ( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d - ministering to that child or that other person a drug, intoxicant, or other similar substance; (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permis- sion of that child or that other person; and (c) That, as a result, that child’s or that other person’s ability to appraise or control conduct was substantially impaired. (8) Abusive sexual contact. (a) Abusive sexual contact by using threats or placing in fear. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other per- son in fear that any person would be subjected to death, grievous bodily harm, or kidnapping). (b) Abusive sexual contact by causing bodily harm. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (ii) That the accused did so by causing bod- ily harm to another person. (c) Abusive sexual contact upon a person sub- stantially incapacitated or substantially incapable of appraising the act, declining participation, or com- municating unwillingness. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (b) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements) (ii) That the other person was substantially incapacitated; (iii) That the other person was substantially i n c a p a b l e o f a p p r a i s i n g t h e n a t u r e o f t h e s e x u a l contact; (iv) That the other person was substantially incapable of declining participation in the sexual contact; or (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact. (9) Abusive sexual contact with a child. (i)(a) That the accused engaged in sexual con- tact with a child; or (b) That the accused caused sexual contact with or by a child or by another person with a child; and (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years. (10) Indecent liberty with a child. (a) That the accused committed a certain act or communication; A28-8 APPENDIX 28
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( b ) T h a t t h e a c t o r c o m m u n i c a t i o n w a s indecent; (c) That the accused committed the act or com- m u n i c a t i o n i n t h e p h y s i c a l p r e s e n c e o f a c e r t a i n child; (d) That the child was under 16 years of age; and (e) That the accused committed the act or com- munication with the intent to: (i) arouse, appeal to, or gratify the sexual desires of any person; or (ii) abuse, humiliate, or degrade any person. (11) Indecent act. (a) That the accused engaged in certain con- duct; and (b) That the conduct was indecent conduct. (12) Forcible pandering. (a) That the accused compelled a certain per- son to engage in an act of prostitution; and (b) That the accused directed another person to s a i d p e r s o n , w h o t h e n e n g a g e d i n a n a c t o f prostitution. (13) Wrongful sexual contact. (a) That the accused had sexual contact with another person; (b) That the accused did so without that other person’s permission; and (c) That the accused had no legal justification or lawful authorization for that sexual contact. (14) Indecent exposure. ( a ) T h a t t h e a c c u s e d e x p o s e d h i s o r h e r genitalia, anus, buttocks, or female areola or nipple; (b) That the accused’s exposure was in an in- decent manner; ( c ) T h a t t h e e x p o s u r e o c c u r r e d i n a p l a c e where the conduct involved could reasonably be ex- pected to be viewed by people other than the ac- cused’s family or household; and (d) That the exposure was intentional. c. Explanation. (1) Definitions. The terms are defined in Para- graph 45a.(t), supra. (2) Character of victim. See Mil. R. Evid. 412 concerning rules of evidence relating to the character of the victim of an alleged sexual offense. (3) Indecent. In conduct cases, “indecent” gener- ally signifies that form of immorality relating to sexual impurity that is not only grossly vulgar, ob- scene, and repugnant to common propriety, but also tends to excite lust and deprave the morals with respect to sexual relations. Language is indecent if it tends reasonably to corrupt morals or incite libidi- nous thoughts. The language must violate commu- nity standards. d. Lesser included offenses. The following lesser in- cluded offenses are based on internal cross-refer- ences provided in the statutory text of Article 120. See subsection (e) for a further listing of possible lesser included offenses. (1) Rape. (a) Article 120—Aggravated sexual contact (b) Article 134—Assault with intent to commit rape (c) Article 128—Aggravated assault; Assault; Assault consummated by a battery (d) Article 80—Attempts (2) Rape of a child. ( a ) A r t i c l e 1 2 0 — A g g r a v a t e d s e x u a l c o n t a c t with a child; Indecent act (b) Article 134—Assault with intent to commit rape (c) Article 128—Aggravated assault; Assault; Assault consummated by a battery; Assault consum- mated by a battery upon a child under 16 (d) Article 80—Attempts (3) Aggravated sexual assault. (a) Article 120—Abusive sexual contact (b) Article 128—Aggravated assault; Assault; Assault consummated by a battery (c) Article 80—Attempts (4) Aggravated sexual assault of a child. (a) Article 120—Abusive sexual contact with a child; Indecent act (b) Article 128—Aggravated assault; Assault; Assault consummated by a battery; Assault consum- mated by a battery upon a child under 16 (c) Article 80—Attempts (5) Aggravated sexual contact. (a) Article 128—Aggravated assault; Assault; Assault consummated by a battery (b) Article 80—Attempts (6) Aggravated sexual abuse of a child. A28-9 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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(a) Article 120—Indecent act ( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - mated by a battery; Assault consummated by a bat- tery upon a child under 16 (c) Article 80—Attempts (7) Aggravated sexual contact with a child. (a) Article 120—Indecent act ( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - mated by a battery; Assault consummated by a bat- tery upon a child under 16 (c) Article 80—Attempts (8) Abusive sexual contact. ( a ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - mated by a battery (b) Article 80—Attempts (9) Abusive sexual contact with a child. (a) Article 120—Indecent act ( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - mated by a battery; Assault consummated by a bat- tery upon a child under 16 (c) Article 80—Attempts (10) Indecent liberty with a child. (a) Article 120—Indecent act (b) Article 80—Attempts (11) Indecent act. Article 80—Attempts (12) Forcible pandering. Article 80—Attempts ( 1 3 ) W r o n g f u l s e x u a l c o n t a c t A r t i c l e 8 0 — A t - tempts (14) Indecent exposure. Article 80—Attempts e. Additional lesser included offenses. Depending on the factual circumstances in each case, to include the type of act and level of force involved, the following offenses may be considered lesser included in addi- tion to those offenses listed in subsection d. (See subsection (d) for a listing of the offenses that are specifically cross-referenced within the statutory text of Article 120.) The elements of the proposed lesser included offense should be compared with the ele- ments of the greater offense to determine if the ele- ments of the lesser offense are derivative of the greater offense and vice versa. See Appendix 23 for further explanation of lesser included offenses. (1)(a) Rape by using force. Article 120—Indecent act; Wrongful sexual contact (1)(b) Rape by causing grievous bodily harm. Ar- t i c l e 1 2 0 — A g g r a v a t e d s e x u a l a s s a u l t b y c a u s i n g b o d i l y h a r m ; A b u s i v e s e x u a l c o n t a c t b y c a u s i n g bodily harm; Indecent act; Wrongful sexual contact (1)(c) Rape by using threats or placing in fear. A r t i c l e 1 2 0 — A g g r a v a t e d s e x u a l a s s a u l t b y u s i n g threats or placing in fear; Abusive sexual contact by u s i n g t h r e a t s o r p l a c i n g i n f e a r ; I n d e c e n t a c t ; Wrongful sexual contact ( 1 ) ( d ) R a p e b y r e n d e r i n g a n o t h e r u n c o n s c i o u s . Article 120—Aggravated sexual assault upon a per- son substantially incapacitated; Abusive sexual con- t a c t u p o n a p e r s o n s u b s t a n t i a l l y i n c a p a c i t a t e d ; Indecent act; Wrongful sexual contact (1)(e) Rape by administration of drug, intoxicant, or other similar substance. Article 120—Aggravated sexual assault upon a person substantially incapaci- tated; Abusive sexual contact upon a person substan- tially incapacitated; Indecent act; Wrongful sexual contact (2)(a) - (f) Rape of a child who has not attained 12 years; Rape of a child who has attained the age of 12 years but has not attained the age of 16 years. Article 120—Aggravated sexual assault of a child; Aggravated sexual abuse of a child; Abusive sexual contact with a child; Indecent liberty with a child; Wrongful sexual contact ( 3 ) A g g r a v a t e d s e x u a l a s s a u l t . A r t i c l e 1 2 0 — Wrongful sexual contact; Indecent act (4) Aggravated sexual assault of a child. Article 120—Aggravated sexual abuse of a child; Indecent liberty with a child; Wrongful sexual contact (5)(a) Aggravated sexual contact by force. Article 120—Indecent act; Wrongful sexual contact ( 5 ) ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g grievous bodily harm. Article 120—Abusive sexual c o n t a c t b y c a u s i n g b o d i l y h a r m ; I n d e c e n t a c t ; Wrongful sexual contact (5)(c) Aggravated sexual contact by using threats or placing in fear. Article 120—Abusive sexual con- tact by using threats or placing in fear; Indecent act; Wrongful sexual contact ( 5 ) ( d ) A g g r a v a t e d s e x u a l c o n t a c t b y r e n d e r i n g another unconscious. Article 120—Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual contact (5)(e) Aggravated sexual contact by administra- tion of drug, intoxicant, or other similar substance. Article 120—Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual contact A28-10 APPENDIX 28
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(6) Aggravated sexual abuse of a child. Article 120—Aggravated sexual contact with a child; Ag- gravated sexual abuse of a child; Indecent liberty with a child; Wrongful sexual contact (7) Aggravated sexual contact with a child. Arti- cle 120—Abusive sexual contact with a child; Inde- cent liberty with a child; Wrongful sexual contact (8) Abusive sexual contact. Article 120—Wrong- ful sexual contact; Indecent act (9) Abusive sexual contact with a child. Article 120—Indecent liberty with a child; Wrongful sexual contact (10) Indecent liberty with a child. Article 120— Wrongful sexual contact f. Maximum punishment. (1) Rape and rape of a child. Death or such other punishment as a court martial may direct. (2) Aggravated sexual assault. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 30 years. (3) Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years, aggravated sexual abuse of a child, aggravated sexual contact, and aggravated sexual contact with a child. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 20 years. (4) Abusive sexual contact with a child and inde- cent liberty with a child. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 15 years. ( 5 ) A b u s i v e s e x u a l c o n t a c t . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 7 years. (6) Indecent act or forcible pandering. Dishonor- able discharge, forfeiture of all pay and allowances, and confinement for 5 years. (7) Wrongful sexual contact or indecent exposure. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 1 year. g. Sample specifications. (1) Rape. (a) Rape by using force. ( i ) R a p e b y u s e o r d i s p l a y o f d a n g e r o u s weapon or object. In that (personal ju- risdiction data), did (at/on board-location) (subject- matter jurisdiction data, if required), on or about 20 , cause to engage in a sexual act, to wit: , by (using a dan- g e r o u s w e a p o n o r o b j e c t , t o w i t : against (him)(her)) (displaying a dan- gerous weapon or object, to wit: to (him)(her)). (ii) Rape by suggestion of possession of dan- gerous weapon or object. In that (per- sonal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , cause to engage in a sexual act, to wit: , by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him) (her) to believe it was a dangerous weapon or object. ( i i i ) R a p e b y u s i n g p h y s i c a l v i o l e n c e , strength, power, or restraint to any person. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , cause t o e n g a g e i n a s e x u a l a c t , t o w i t : , by using (physical violence) (strength) ( p o w e r ) ( r e s t r a i n t a p p l i e d t o ) , s u f f i - cient that (he) (she) could not avoid or escape the sexual conduct. (b) Rape by causing grievous bodily harm. In t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d (at/on board-location) (subject-matter jurisdiction da- ta, if required), on or about 20 , cause to engage in a sexual act, to wit: , by causing grievous bodily harm upon (him)(her)( ), to wit: a (broken leg)(deep cut)(fractured skull)( ). (c) Rape by using threats or placing in fear. In t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d (at/on board-location) (subject-matter jurisdiction da- ta, if required), on or about 20 , cause to engage in a sexual act, to wit: , by [threatening] [placing (him)(her) in fear] that (he)(she) ( ) will be subjected to (death)(grievous bodily harm) (kidnapping) by . (d) Rape by rendering another unconscious. In t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d (at/on board-location) (subject-matter jurisdiction da- ta, if required), on or about 20 , cause to engage in a sexual act, to wit: , by rendering (him)(her) unconscious. (e) Rape by administration of drug, intoxicant, or other similar substance. In that (personal jurisdiction data), did (at/on board-location) (subject- A28-11 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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matter jurisdiction data, if required), on or about 20 , cause to engage in a sexual act, to wit: , by administering to (him)(her) a drug, intoxicant, or other similar sub- s t a n c e , ( b y f o r c e ) ( b y t h r e a t o f f o r c e ) ( w i t h o u t ( h i s ) ( h e r ) k n o w l e d g e o r p e r m i s s i o n ) , a n d t h e r e b y substantially impaired (his)(her) ability to [(appraise) (control)][(his) (her)] conduct. (2) Rape of a child. (a) Rape of a child who has not attained the age of 12 years. In that (personal ju- risdiction data), did (at/on board-location) (subject- matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: with , a child who had not attained the age of 12 years. (b) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using force. (i) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by use or display of dangerous weapon or object. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by (using a dangerous weapon or object, to wit: against (him)(her)) (display- ing a dangerous weapon or object, to wit: to (him)(her)). (ii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by suggestion of possession of dangerous weapon or object. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , en- gage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her) to believe it was a dangerous weapon or object. (iii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using physical violence, strength, power, or restraint to any person. In that (personal jurisdiction data), did (at/on board-location) (subject- matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by using (physical violence) (strength) (power) (re- straint applied to ) sufficient that (he)(she) could not avoid or escape the sexual conduct. (c) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm. In that (per- sonal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by causing grievous bodily harm upon ( h i m ) ( h e r ) ( ) , t o w i t : a ( b r o k e n l e g ) ( d e e p cut)(fractured skull)( ). (d) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear. In that (per- sonal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 1 6 y e a r s , b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m ) ( h e r ) i n fear] that (he)(she) ( ) would be subjected to ( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n a p p i n g ) b y . (e) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child unconscious. In that (per- sonal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by rendering (him)(her) unconscious. (f) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance. In that (personal jurisdiction da- ta), did (at/on board-location) (subject-matter juris- diction data, if required), on or about 20 , engage in a sexual act, to wit: ,with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by ad- ministering to (him)(her) a drug, intoxicant, or other s i m i l a r s u b s t a n c e ( b y f o r c e ) ( b y t h r e a t o f f o r c e ) (without (his)(her) knowledge or permission), and A28-12 APPENDIX 28
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thereby substantially impaired (his)(her) ability to [(appraise)(control)][(his)(her)] conduct. (3) Aggravated sexual assault. (a) Aggravated sexual assault by using threats or placing in fear. In that (personal jurisdic- tion data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , cause to engage in a sexual act, to wit: , by [threatening] [placing(him)(her) in f e a r o f ] [ ( p h y s i c a l i n j u r y t o ) ( i n j u r y t o ’s property)(accusation of crime)(exposition of secret)(abuse of military position)( )]. (b) Aggravated sexual assault by causing bod- ily harm. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , cause to engage in a sexual act, to wit: , by c a u s i n g b o d i l y h a r m u p o n ( h i m ) ( h e r ) ( ) , t o wit: . (c) Aggravated sexual assault upon a person substantially incapacitated or substantially incapa- ble of appraising the act, declining participation, or c o m m u n i c a t i n g u n w i l l i n g n e s s . I n t h a t ( p e r - sonal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: with , who was (substantially in- capacitated) [substantially incapable of (appraising the nature of the sexual act)(declining participation in the sexual act) (communicating unwillingness to engage in the sexual act)]. (4) Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years. In that (personal jurisdic- tion data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , engage in a sexual act, to wit: with , who had attained the age of 12 years, but had not attained the age of 16 years. (5) Aggravated sexual contact. (a) Aggravated sexual contact by using force. (i) Aggravated sexual contact by use or dis- p l a y o f d a n g e r o u s w e a p o n o r o b j e c t . I n t h a t (personal jurisdiction data), did (at/on board- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - quired), on or about 20 , [(engage in s e x u a l c o n t a c t , t o w i t : w i t h ) ( c a u s e to engage in sexual contact, to wit: , w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r b y , to wit: )] by (using a dangerous weapon or object, to wit: against (him)(her)) (displaying a dangerous weapon or object, to wit: to (him)(her)). (ii) Aggravated sexual contact by suggestion of possession of dangerous weapon or object. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in s e x u a l c o n t a c t , t o w i t : w i t h ) ( c a u s e to engage in sexual contact, to wit: , w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r b y , to wit: )] by the suggestion of posses- sion of a dangerous weapon or an object that was used in a manner to cause (him)(her)( ) to believe it was a dangerous weapon or object. ( i i i ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g physical violence, strength, power, or restraint to any person. In that (personal jurisdiction da- ta), did (at/on board-location) (subject-matter juris- diction data, if required), on or about 20 , [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by using (physical violence) (strength) (power) (restraint applied to ), sufficient that (he)(she)( ) could not avoid or escape the sexual conduct. ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g grievous bodily harm. In that (personal ju- risdiction data), did (at/on board-location) (subject- matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by causing grievous bodily harm upon (him)(her)( ), to w i t : a ( b r o k e n l e g ) ( d e e p c u t ) ( f r a c t u r e d s k u l l ) ( ). (c) Aggravated sexual contact by using threats or placing in fear. In that (personal jurisdic- tion data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : with )(cause to engage in sex- ual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] b y [ ( t h r e a t e n i n g ( h i m ) ( h e r ) ( ) ] [(placing(him)(her) ( ) in fear] that (he)(she)( A28-13 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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) will be subjected to (death)(grievous bodily harm)(kidnapping) by . (d) Aggravated sexual contact by rendering an- other unconscious. In that (personal jurisdic- tion data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : with )(cause to engage in sex- ual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by rendering (him)(her)( ) unconscious. (e) Aggravated sexual contact by administra- tion of drug, intoxicant, or other similar substance. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in s e x u a l c o n t a c t , t o w i t : w i t h ) ( c a u s e to engage in sexual contact, to wit: , w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r b y , to wit: )] by administering to (him) (her)( ) a drug, intoxicant, or other similar substance, (by force) (by threat of force) (without ( h i s ) ( h e r ) ( ) k n o w l e d g e o r p e r m i s s i o n ) , a n d t h e r e b y s u b s t a n t i a l l y i m p a i r e d ( h i s ) ( h e r ) ( ) ability to [(appraise) (control)] [(his) (her)] conduct. (6) Aggravated sexual abuse of a child. In that (personal jurisdiction data), did (at/on board- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - quired), on or about 20 , engage in a lewd act, to wit: with , a child who had not attained the age of 16 years. (7) Aggravated sexual contact with a child. (a) Aggravated sexual contact with a child who h a s n o t a t t a i n e d t h e — a g e o f 1 2 y e a r s . I n t h a t (personal jurisdiction data), did (at/on board- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - quired), on or about 20 , [(engage in sexual contact, to wit: with , a child who had not attained the age of 12 years)(cause to engage in sexual contact, to wit: , with , a child who had not attained the age of 12 years) (cause sexual contact with or by , a child who had not attained the age of 12 years, to wit: )]. (b) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using force. (i) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by use or display of dangerous weapon or object. In that (personal jurisdiction data), did (at/on board-location) (subject- matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but h a d n o t a t t a i n e d t h e a g e o f 1 6 y e a r s , t o w i t : )] by (using a dangerous weapon or object, to wit: against (him)(her)( )) (displaying a dangerous weapon or object, to wit: to (him)(her)( )). (ii) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by suggestion of posses- s i o n o f d a n g e r o u s w e a p o n o r o b j e c t . I n t h a t (personal jurisdiction data), did (at/on board- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - quired), on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to en- gage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her)( ) to believe it was a dangerous weapon or object. (iii) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using physical vio- lence, strength, power, or restraint to any person. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to en- gage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had not A28-14 APPENDIX 28
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attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by using (physical violence) (strength) (power) (restraint applied to ) sufficient that (he)(she)( ) could not avoid or escape the sexual conduct. (c) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained t h e a g e o f 1 6 y e a r s b y c a u s i n g g r i e v o u s b o d i l y harm. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by c a u s i n g g r i e v o u s b o d i l y h a r m u p o n ( h i m ) ( h e r ) ( ), to wit: a (broken leg)(deep cut)(fractured skull)( ). (d) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction da- ta, if required), on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to en- gage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by [threatening] [placing (him)(her)( ) in fear] that (he)(she)( ) w i l l b e s u b j e c t e d t o ( d e a t h ) ( g r i e v o u s b o d i l y harm)(kidnapping) by . (e) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child or an- other unconscious. In that (personal jurisdic- tion data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but h a d n o t a t t a i n e d t h e a g e o f 1 6 y e a r s , t o w i t : ) ] b y r e n d e r i n g ( h i m ) ( h e r ) ( ) unconscious. (f) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intox- icant, or other similar substance. In that (per- sonal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with , a child who had at- tained the age of 12 years but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years but had not attained the age of 16 years, to w i t : ) ] b y a d m i n i s t e r i n g t o ( h i m ) ( h e r ) ( ) a drug, intoxicant, or other similar substance (by force) (by threat of force) (without (his)(her)( ) knowledge or permission), and thereby sub- s t a n t i a l l y i m p a i r e d ( h i s ) ( h e r ) ( ) a b i l i t y t o [(appraise) (control)][(his) (her)] conduct. (8) Abusive sexual contact. (a) Abusive sexual contact by using threats or placing in fear. In that (personal jurisdiction data), did (at/on board-location) (subject-matter ju- risdiction data, if required), on or about 20 , [ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : w i t h ) ( c a u s e t o e n g a g e i n sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by [(threatening) (placing (him)(her)( ) in fear of)] [(physical injury to )(injury to ’s p r o p e r t y ) ( a c c u s a t i o n o f c r i m e ) ( e x p o s i t i o n o f secret)(abuse of military position)( )]. (b) Abusive sexual contact by causing bodily harm. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by A28-15 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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, to wit: )] by causing bodily harm upon (him)(her)( ), to wit: ( ). (c) Abusive sexual contact by engaging in a sexual act with a person substantially incapacitated or substantially incapable of appraising the act, de- clining participation, or substantially incapable of c o m m u n i c a t i n g u n w i l l i n g n e s s . I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r b y , to wit: )] while (he)(she)( ) was [substantially incapacitated] [substantially inca- pable of (appraising the nature of the sexual contact) (declining participation in the sexual contact) (com- municating unwillingness to engage in the sexual contact)]. (9) Abusive sexual contact with a child. In that (personal jurisdiction data), did (at/on board- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - quired), on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years but had not attained the age of 16 years)(cause to en- gage in sexual contact, to wit: , with , a child who had attained the age of 12 years but had not attained the age of 16 years) (cause sexual con- tact with or by , a child who had attained the age of 12 years but had not attained the age of 16 years, to wit: )]. ( 1 0 ) I n d e c e n t l i b e r t i e s w i t h a c h i l d . I n t h a t (personal jurisdiction data), did, (at/on board- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - quired), on or about 20 ,(take indecent liberties) (engage in indecent conduct) in the physi- cal presence of , a (female) (male) under 16 years of age, by (communicating the words: to wit: ) (exposing one’s private parts, to wit: ) ( ), with the intent to [(arouse) (appeal to) (gratify) the (sexual desire) of the (or )] [(abuse)(humiliate)(degrade) ]. (11) Indecent act. In that (personal juris- d i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t - matter jurisdiction data, if required), on or about 20 ,wrongfully commit indecent con- duct, to wit . ( 1 2 ) F o r c i b l e p a n d e r i n g . I n t h a t ( p e r - sonal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20 , compel to engage in [(a sexual act)(sexual contact) (lewd act), to wit: ] for the purpose of receiving money or other compensation with (a) person(s) to be di- rected to (him)(her) by the said . (13) Wrongful sexual contact. In that (per- sonal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20 , engage in sexual contact with , to wit: , and such sexual contact was without legal justification or lawful authoriza- tion and without the permission of . (14) Indecent exposure. In that (personal jurisdiction data), did (at/on board-location), (sub- j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r about 20 , intentionally (expose in an indecent manner (his) (her) ( ) ( ) while ( a t t h e b a r r a c k s w i n d o w ) ( i n a p u b l i c p l a c e ) ( ).” Appendix 23 Analysis Follows: [Note: The analysis below was removed from Ap- pendix 23 and pertains to the 2007 Amendment of Article 120. The analysis was inserted into this ap- pendix to accompany the version of Article 120 ap- plicable to offenses committed during the period 1 October 2007 through 27 June 2012. For offenses committed prior to 1 October 2007, analysis related to Article 120 and other punitive articles applicable to sexual offenses is contained in Appendix 27. For offenses committed on or after 28 June 2012, analy- sis related to Article 120, 120b, and 120c is con- tained in Appendix 23.] 45. Article 120—Rape, sexual assault, and other sexual misconduct 2007 Amendment: Changes to this paragraph are contained in Div. A. Title V. Subtitle E, Section 552(a)(1) of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 119 Stat. 3257 (6 January 2006), which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct. In accordance with Section 552(c) of that Act, the amendment to A28-16 APPENDIX 28
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t h e A r t i c l e a p p l i e s o n l y w i t h r e s p e c t t o o f f e n s e s committed on or after 1 October 2007. N o t h i n g i n t h e s e a m e n d m e n t s i n v a l i d a t e s a n y nonjudicial punishment proceeding, restraint, investi- gation, referral of charges, trial in which arraignment occurred, or other action begun prior to 1 October 2007. Any such nonjudical punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action may proceed in the same manner and with the same ef- fect as if these amendments had not been prescribed. This new Article 120 consolidates several sexual misconduct offenses and is generally based on the S e x u a l A b u s e A c t o f 1 9 8 6 , 1 8 U . S . C . S e c t i o n s 2241-2245. The following is a list of offenses that have been replaced by this new paragraph 45: (1) Paragraph 63, 134 Assault - Indecent, has been replaced in its entirety by three new offenses under paragraph 45. See subsections (e) Aggravated Sexual Contact, (h) Abusive Sexual Contact, and (m) Wrongful Sexual Contact. (2) Paragraph 87, 134 Indecent Acts or Liberties with a Child, has been replaced in its entirety by three new offenses under paragraph 45. See subsec- tions (g) Aggravated Sexual Contact with a Child, (i) Abusive Sexual Contact with a Child, and (j) Indecent Liberty with a Child. (3) Paragraph 88, Article 134 Indecent Exposure, has been replaced in its entirety by a new offense under paragraph 45. See subsection (n) Indecent Ex- posure. (4) Paragraph 90, Article 134 Indecent Acts with Another, has been replaced in its entirety by a new offense under paragraph 45. See subsection (k) Inde- cent Act. ( 5 ) P a r a g r a p h 9 7 , A r t i c l e 1 3 4 P a n d e r i n g a n d Prostitution, has been amended. The act of compel- ling another person to engage in an act of prostitu- t i o n w i t h a n o t h e r p e r s o n w i l l n o l o n g e r b e a n offense under paragraph 97 and has been replaced by a new offense under paragraph 45. See subsection (l), Forcible Pandering. c. Explanation. Subparagraph (3), definition of “in- decent,” is taken from paragraphs 89.c and 90.c of the Manual (2005 ed.) and is intended to consolidate the definitions of “indecent,” as used in the former offenses under Article 134 of “Indecent acts or liber- ties with a child,” “Indecent exposure,” and “In- decent acts with another,” formerly at paragraphs 87, 88, and 90 of the 2005 Manual, and “Indecent lan- guage,” at paragraph 89. The application of this sin- g l e d e f i n i t i o n o f “ i n d e c e n t ” t o t h e o f f e n s e s o f “Indecent liberty with a child,” “Indecent act,” and “Indecent exposure” under Article 120 is consistent with the construction given to the former Article 134 offenses in the 2005 Manual that were consolidated into Article 120. See e.g. United States v. Negron , 60 M.J. 136 (C.A.A.F. 2004). d. Additional Lesser Included Offenses . The test to determine whether an offense is factually the same as another offense, and therefore lesser-included to that offense, is the “elements” test. United States v. Foster, 40 M.J. 140, 142 (C.M.A. 1994). Under this test, the court considers “whether each provision re- quires proof of a fact which the other does not.” Blockburger, 284 U.S. 299 at 304 (1932). Rather than adopting a literal application of the elements test, the Court stated that resolution of lesser-in- cluded claims “can only be resolved by lining up elements realistically and determining whether each element of the supposed ‘lesser’ offense is rationally derivative of one or more elements of the other offense - and vice versa.” Foster, 40 M.J. at 146. Whether an offense is a lesser-included offense is a matter of law that the Court will consider de novo. U n i t e d S t a t e s v . P a l a g a r , 5 6 M . J . 2 9 4 , 2 9 6 (C.A.A.F. 2002). e. Maximum punishment . See 1995 Amendment re- garding maximum punishment of death. A28-17 PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
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MCM INDEX Subject Ref. Page Abandoned property, seizure of . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(2) . . . . . . . . . . III–16 Abandoned property of enemy, offenses concerning . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39 Abandoning guard or watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV, Para. 10b(4) . . . . . . . . . . . . . . . . IV–14 See also Sentinel or lookout. Abandonment or surrender of command, military property, place, unit or ship Shamefully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Subordinate compelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36 Abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1a(1); 1b(1) . . . . . . . . . . . IV–1 See also Principals. Absence Accused’s After trial substitute service . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b)(1)(C) . . . . . . . . . . . . II–153 During preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(5) . . . . . . . . . . . . . . . . II–41 During pretrial conference . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–82 During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804 . . . . . . . . . . . . . . . . . . . . II–82 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c)(1) . . . . . . . . . . . . . . . . II–7 6 Voluntary for child testimony . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c) . . . . . . . . . . . . . . . . . . II–82 Defense counsel, during trial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–84 Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–84 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–84 Trial counsel, during trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–84 Absence without leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–13 See also Desertion Abusive sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–66 Accessory After the fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2 . . . . . . . . . . . . . . . . . . . . . IV–2 Before the fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1) . . . . . . . . . . . . . . . . . IV–1 Accident As defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(f) . . . . . . . . . . . . . . . . . . II–117 Fleeing scene of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 82 . . . . . . . . . . . . . . . . . . . . IV–132 Accomplices See also Conspiracy; Joint trial; Principals. Co-conspirators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c . . . . . . . . . . . . . . . . . . . . IV–6 Joint charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(5) . . . . . . . . . . . . . . . . II–30 Accused See also specific topics. Absence of After trial substitute service . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b)(1)(C) . . . . . . . . . . . . II–153 During preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(5) . . . . . . . . . . . . . . . . II–41 During pretrial conference . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–82 During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804 . . . . . . . . . . . . . . . . . . . . II–82 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c)(1) . . . . . . . . . . . . . . . . II–7 6 Voluntary for child testimony . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c) . . . . . . . . . . . . . . . . . . II–82 Action, service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(h) . . . . . . . . . . . . . . . . . II–166 Announcement of presence in court . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(2) . . . . . . . . . . . . . . . . II–92 Appearance of, at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c)(1) . . . . . . . . . . . . . . . . II–83 Appellate rights, advice By defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II– 48 By military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1010 . . . . . . . . . . . . . . . . . . . I I–143 Character evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404 . . . . . . . . . . . . . . . III–19 Charges Notification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–31 Service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–57 Composition of court-martial, elections . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–95 Conferences Presence at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–82 Rights at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(c) . . . . . . . . . . . . . . . . . . II–82 Counsel See also Counsel; Defense counsel. Explanation at trial of right to . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–93 Rights to See also Self-Incrimination. Index 1
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Subject Ref. Page Appellate counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(b)(2) . . . . . . . . . . . . . . . I I–181 At general or special court-martial . . . . . . . . . . . . . . . . R.C.M. 506 . . . . . . . . . . . . . . . . . . . . II–53 At interrogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d); 305(e) . . . . . . III–7 At lineups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(2) . . . . . . . . . . III–17 At preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f)(2)(b) . . . . . . . . . . . . . . II–37 At summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–191 Before review of pretrial confinement . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22 Counsel advice on post-trial rights . . . . . . . . . . . . . . . . R.C.M. 1010(d) . . . . . . . . . . . . . . . . . II–143 Decision of Court of Criminal Appeal, service on . . . . . . R.C.M. 908(c)(3); 1203(d) . . . . . . . . II–105; II–183 After appeal by accused . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(d) . . . . . . . . . . . . . . . . . II–183 After appeal by United States . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(3) . . . . . . . . . . . . . . . . II–105 Joinder of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(3) . . . . . . . . . . . . . . . . II–56 Jurisdiction over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13 Mental examination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–74 Notification of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–31 Post-trial rights Advice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1010 . . . . . . . . . . . . . . . . . . . I I–143 Preliminary hearing, rights . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f) . . . . . . . . . . . . . . . . . . II–37 Right to submit matters to convening authority . . . . . . . . . R.C.M. 1010(a); 1105 . . . . . . . . . . . . II–143; II–155 Presence at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803; 804 . . . . . . . . . . . . . . . . II–82 Removal from courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(b) . . . . . . . . . . . . . . . . . . II–82 Restraint of During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(d)(3) . . . . . . . . . . . . . . . . II–84 Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304; 305 . . . . . . . . . . . . . . . . II–19; II–21 Sentencing, See Presenting procedure. Service of appellate court decision . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(3); 1203(d) . . . . . . . . II–105; II– 183 Service of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–57 Severance of, motion for See also Joint trial. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(9) . . . . . . II– 97; II–100 Time for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5) . . . . . . . . . . . . . . . . II–97 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–98 Accuser Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(9), UCMJ . . . . . . . . . . . . . . . . A2–1 Disqualification Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(c)(1); 601(c) . . . . . . . . . II–51; II– 55 Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(A) . . . . . . . . . . . . . II– 47 Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(C) . . . . . . . . . . . . . II–110 Personnel of court-martial . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2)(A) . . . . . . . . . . . . . II–49 Reviewer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112(c) . . . . . . . . . . . . . . . . . II–174 Subordinate of convening authority . . . . . . . . . . . . . . . . R.C.M. 504(c)(2) . . . . . . . . . . . . . . . . II–51 Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(A) . . . . . . . . . . . . . II–47 Nominal accuser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(21); 307(a) . . . . . . . . . . II–2; II–28 Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–31 Preferral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307 . . . . . . . . . . . . . . . . . . . . II–27 Acquittal See also Findings. Motion for a finding of not guilty . . . . . . . . . . . . . . . . . . . . R.C.M. 917 . . . . . . . . . . . . . . . . . . . . II– 119 Reconsideration of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924 . . . . . . . . . . . . . . . . . . . . II–125 Record of trial in case of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–149 Action of convening authority See also Convening authority. Ambiguous action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(g) . . . . . . . . . . . . . . . . . II–166 Contents of action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f) . . . . . . . . . . . . . . . . . II–164 Dismissal of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c) . . . . . . . . . . . . . . . . . II–161 Erroneous action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(g) . . . . . . . . . . . . . . . . . II–166 Findings, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c) . . . . . . . . . . . . . . . . . II–161 Forms for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 16 . . . . . . . . . . . . . . . . . . . A16–1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107 . . . . . . . . . . . . . . . . . . . II–159 Incomplete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(g) . . . . . . . . . . . . . . . . . II–166 Lesser included offense, approval of . . . . . . . . . . . . . . . . . . R.C.M. 1107(c) . . . . . . . . . . . . . . . . . II–161 Matters considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(3) . . . . . . . . . . . . . . . II–160 Mental capacity, when accused lacks . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(5) . . . . . . . . . . . . . . . II–161 Mental responsibility, lack of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(4) . . . . . . . . . . . . . . . II –160 Index 2 MCM, 2016 INDEX
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Subject Ref. Page Modification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2); 1107(g) . . . . . . . II–164; II–166 New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5)(B) . . . . . . . . . . . . II–166 Not guilty findings, action on . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(4) . . . . . . . . . . . . . . . II –160 Other trial, ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(e)(3) . . . . . . . . . . . . . . . II–164 Pretrial agreement, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(E) . . . . . . . . . . . . . I I–72 Rehearing, ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c)(2); 1107(e); R.C.M. 1107(f) . . . . . . . . . . . . . . . . . II–161; II–163; II–164 Sentence, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(d); 1107(f)(4) . . . . . . . II –161; II–165 Service on accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(h) . . . . . . . . . . . . . . . . . II–166 Suspension of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108 . . . . . . . . . . . . . . . . . . . II–166 When taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(2) . . . . . . . . . . . . . . . II–160 Who may take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(a) . . . . . . . . . . . . . . . . . II–160 Withdrawal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2) . . . . . . . . . . . . . . . II–164 Additional charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–28 Adequate interest to challenge search and seizure . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8 Adjournment of courts-martial Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1011 . . . . . . . . . . . . . . . . . . . II–143 Sessions after . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803; 1102 . . . . . . . . . . . . . . . II–82; II–146 Administrative action, to dispose of offense . . . . . . . . . . . . . . . R.C.M. 306(c)(2); V. Para. 1d(1) . . II–26; V–1 Administrative proceeding, wrongful interference with . . . . . . IV. Para. 96a . . . . . . . . . . . . . . . . . . . IV–140 Admissions. See Self-incrimination. Admonition Of court-martial, member, military judge, or counsel . . . . R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4 Punishment, nonjudicial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5 Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 62 . . . . . . . . . . . . . . . . . . . . IV–117 Advice, pretrial Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(b) . . . . . . . . . . . . . . . . . . II–43 Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(c) . . . . . . . . . . . . . . . . . . II–43 General court-martial, requirement for . . . . . . . . . . . . . . . . . R.C.M. 601(d)(2)(B) . . . . . . . . . . . . . II–55 Motion concerning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1) . . . . . . . . . . . . . . . . II–97 R.C.M. 906(b)(3) . . . . . . . . . . . . . . . . II–100 Responsibility for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(a) . . . . . . . . . . . . . . . . . . II–43 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(d)(2)(B) . . . . . . . . . . . . . II–55 When required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(a) . . . . . . . . . . . . . . . . . . II–43 Affidavits Character of accused, proof by . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(c) . . . . . . . . . . . . . III–2 0 Sentencing proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(3) . . . . . . . . . . . . . . . II–129 Affirmation See also Oaths. Oath, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(a) . . . . . . . . . . . . . . . . . . II–86 Affirmative defenses. See Defenses. Aggravated assault. See Assault. Aggravated sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–66 Aggravating circumstances, capital cases . . . . . . . . . . . . . . . . . R.C.M. 1004(c) . . . . . . . . . . . . . . . . . II–137 See also Capital case. Aggravation, evidence in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(b)(4) . . . . . . . . . . . . . . . II–128 Agreement Pretrial. See Pretrial agreement. To commit offense. See Conspiracy. Aider and abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1 See also Principals. Aiding the enemy Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(d); 28 . . . . . . . . . . . IV–5; IV–40 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–40 Alcohol. See Drunk; Intoxication. Alibi Failure to disclose, effect of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II–62 Notice of, by defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Notice of rebuttal witnesses by trial counsel . . . . . . . . . . . R.C.M. 701(a)(3)(B) . . . . . . . . . . . . . II–59 Withdrawal after disclosure, effect of . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–61 Amending charges and specifications . . . . . . . . . . . . . . . . . . . . R.C.M. 603 . . . . . . . . . . . . . . . . . . . . II–57 See also Charges and specifications. Ammunition, casting away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Amphetamines. See Controlled substances, offenses involving. Index 3 MCM, 2016INDEX
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Subject Ref. Page Analysis Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 22 . . . . . . . . . . . . . . . . . . . A22–1 Nonjudicial Punishment Procedure . . . . . . . . . . . . . . . . . . . . . Appendix 24 . . . . . . . . . . . . . . . . . . . A24– 1 Punitive Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 23 . . . . . . . . . . . . . . . . . . . A23–1 Rules for Courts-Martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 21 . . . . . . . . . . . . . . . . . . . A21–1 Animal, abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 61 . . . . . . . . . . . . . . . . . . . . IV–116 Announcement Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922 . . . . . . . . . . . . . . . . . . . . II–125 Form for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 10 . . . . . . . . . . . . . . . . . . . A10–1 Persons present or absent at trial . . . . . . . . . . . . . . . . . . . . . R.C.M. 813 . . . . . . . . . . . . . . . . . . . . I I–92 Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007 . . . . . . . . . . . . . . . . . . . II–142 Form for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 11 . . . . . . . . . . . . . . . . . . . A11–1 Pretrial agreement inquiry after . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(3) . . . . . . . . . . . . . . . . II–108 Appeals. See Appellate review. Appellate counsel. See Appellate review. Appellate review. Appeal by United States (Art. 62, UCMJ) . . . . . . . . . . . . . R.C.M. 908 . . . . . . . . . . . . . . . . . . . . II–104 Appellate counsel Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(b) . . . . . . . . . . . . . . . . . II–181 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(a) . . . . . . . . . . . . . . . . . II–181 When appeal filed by United States . . . . . . . . . . . . . . . R.C.M. 908(c)(1) . . . . . . . . . . . . . . . . II–105 Finality of courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–187 Judge Advocate General, The Cases of lack of mental responsibility . . . . . . . . . . . . . R.C.M. 1201(b)(3)(B) . . . . . . . . . . . . II–180 Cases referred to Court of Criminal Appeals by (Art. 66, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1201(a) . . . . . . . . . . . . . . . . . II–180 Cases reviewed by (Art 69, UCMJ) . . . . . . . . . . . . . . . R.C.M. 1201(b)(1); 1201(b)(2); 1201(b)(3) . . . . . . . . . . . . . . . . . . . . . . II–180 Remission and suspension of sentence by . . . . . . . . . . R.C.M. 1201(c) . . . . . . . . . . . . . . . . . II–181 Review of summary court-martial by . . . . . . . . . . . . . . R.C.M. 1306(d) . . . . . . . . . . . . . . . . . II–195 New trial. See New trial. Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7 . . . . . . . . . . . . . . . . . . . . . V–8 Powers and responsibilities of the Service Secretary . . . . . R.C.M. 1206 . . . . . . . . . . . . . . . . . . . II–186 Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1208 . . . . . . . . . . . . . . . . . . . II–186 Review by a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112 . . . . . . . . . . . . . . . . . . . II –174 Review by Court of Appeals for the Armed Forces. See Court of Appeals for the Armed Forces. Review by Court of Criminal Appeals. See Court of Criminal Appeals. Review by the Supreme Court (Art. 67(h)(1), (2)) Action by Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1205(b) . . . . . . . . . . . . . . . . . II –186 Cases subject to review . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1205(a) . . . . . . . . . . . . . . . . . II–186 Sentence requiring approval of the President . . . . . . . . . . . R.C.M. 1207 . . . . . . . . . . . . . . . . . . . II–186 Waiver or withdrawal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–172 Appellate rights waiver form . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 19 . . . . . . . . . . . . . . . . . . . A19–1 Appointment in armed forces. See Enlistment. Apprehension Absence without leave, terminated by . . . . . . . . . . . . . . . . . IV. Para. 10e(2)(d) . . . . . . . . . . . . . . IV–16 Attachment of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15 Authorization, when required . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2) . . . . . . . . . . . . . . . . I I–18 Custody, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19c(4)(a) . . . . . . . . . . . . . . IV–29 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(a) . . . . . . . . . . . . . . . . . . II–17 Deserters, by civilian authorities . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(3) . . . . . . . . . . . . . . . . I I–18 Desertion, terminated by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9e(2)(a) . . . . . . . . . . . . . . . IV–13 Force, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(d)(3) . . . . . . . . . . . . . . . . II–18 Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(c) . . . . . . . . . . . . . . . . . . II–18 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(d) . . . . . . . . . . . . . . . . . . II–18 Resisting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Search incident to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g) . . . . . . . . . . . . III–14 See also Search and seizure. Unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32 Warrant, when required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(d)(2); 302(e)(2) . . . . . . . II–18 Where made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e) . . . . . . . . . . . . . . . . . . II–18 Who may apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b) . . . . . . . . . . . . . . . . . . II–17 Index 4 MCM, 2016 INDEX
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Subject Ref. Page Appropriation, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV Para. 46 . . . . . . . . . . . . . . . . . . . . IV–87 Argument Control of, by military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II –78 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 919 . . . . . . . . . . . . . . . . . . . . II–121 Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II–78 Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(g) . . . . . . . . . . . . . . . . . II–130 Statement, opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(b) . . . . . . . . . . . . . . . . . . II–112 Armed forces, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(21) . . . . . . . . . . . . . . . . . II–2 Arms, casting away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV– 33 Arraignment Accused, presence required at . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804 . . . . . . . . . . . . . . . . . . . . II–82 Additional charges, effect on referral of . . . . . . . . . . . . . . . R.C.M. 601(e)(2) . . . . . . . . . . . . . . . . II–56 Amending charges, effect on . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603(b); 603(c) . . . . . . . . . . . II–57 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 904 . . . . . . . . . . . . . . . . . . . . II–96 Arrest Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–1 5 Breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 In quarters, as nonjudicial punishment . . . . . . . . . . . . . . . . . V. Para. 5b(1)(B)(i); 5c(3) . . . . . . . . V–4; V–5 Members, disqualification while in . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(L) . . . . . . . . . . . . . II–110 Pretrial See also Restraint, pretrial. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(3) . . . . . . . . . . . . . . . . II–20 Duties inconsistent with . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(3) . . . . . . . . . . . . . . . . II–20 Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20 Notice to persons in . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(e) . . . . . . . . . . . . . . . . . . II –21 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(d) . . . . . . . . . . . . . . . . . . II–20 Punishment prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II– 21 Release from Authority to grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(g) . . . . . . . . . . . . . . . . . . II–2 1 When required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II– 76 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1); 707(b)(2) . . . . . . II–75 Who may order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . I I–20 Unlawful, as offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32 Arson See also Burning with intent to defraud. Aggravated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 52 . . . . . . . . . . . . . . . . . . . . IV–98 Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–6 0 Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Simple arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 52 . . . . . . . . . . . . . . . . . . . . IV–98 Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 4a . . . . . . . . . . . . . . . . . . . . I V–4 Article 15. See Nonjudicial punishment. Article 32. See Preliminary hearing. Article 39(a) session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–82 Presence of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(a) . . . . . . . . . . . . . . . . . . II–82 Presence of military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–84 Assault Aggravated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(f); 54 . . . . . . . . . . . IV–5; IV–100 Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Child, as victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Commissioned officer, as victim In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–19 Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV– 100 Of a friendly foreign power . . . . . . . . . . . . . . . . . . . . . IV. Para. 54e(3) . . . . . . . . . . . . . . . . IV–104 Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–117 Indecent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 63 . . . . . . . . . . . . . . . . . . . . IV–118 Law enforcement official, as victim . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV –100 Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 50 . . . . . . . . . . . . . . . . . . . . IV–97 Noncommissioned, petty, or warrant officer, as victim In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV– 100 Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–116 Sentinel or lookout, as victim . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Simple assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Index 5 MCM, 2016INDEX
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Subject Ref. Page With intent to commit murder, voluntary manslaughter, rape, robbery, forcible sodomy, arson, burglary, or housebreaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV –64 Assembly of court-martial Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(b); 911 . . . . . . . . . . . . . II–93; II–109 Effect on Changing members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c) . . . . . . . . . . . . . . . . . . II–5 2 Changing military judge . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(e) . . . . . . . . . . . . . . . . . . II–53 Enlisted members, request for . . . . . . . . . . . . . . . . . . . . R.C.M. 903(a)(1); 903(d) . . . . . . . . . II–95; II–96 Military judge alone, request for trial by . . . . . . . . . . R.C.M. 903(b)(2); 903(d) . . . . . . . . . II–95; II–96 Assistant counsel. See Counsel; Defense counsel; Trial counsel. Associate defense counsel. See Counsel; Defense counsel. Attachment, warrant of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–68 Attempts Aiding the enemy (Art. 104, UCMJ) . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(d); 28 . . . . . . . . . . . IV–5; IV–40 Assault (Art. 128, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(f); 54 . . . . . . . . . . . IV–5 ; IV–100 Desertion (Art. 85, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(a); 9 . . . . . . . . . . . . IV–5 ; IV–10 Generally (Art. 80, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4 . . . . . . . . . . . . . . . . . . . . . IV–4 Mutiny (Art. 94, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(b); 18 . . . . . . . . . . . IV–5 ; IV–26 Subordinate compelling surrender (Art. 100, UCMJ) . . . . . IV. Paras. 4c(6)(c); 24 . . . . . . . . . . . IV–5; IV–36 Attorney. See Counsel; Defense counsel; Trial counsel. Attorney—client relationship See also Counsel; Defense counsel. Availability of individual military counsel, effect on . . . . . R.C.M. 506(b)(2) . . . . . . . . . . . . . . . . II–54 Change of defense counsel, effect on . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2) . . . . . . . . . . . . . . . . II–53 Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . I II–23 Attorney General, grants of immunity . . . . . . . . . . . . . . . . . . . R.C.M. 704(c)(1); 704(c)(2) . . . . . . . II–70; II–71 Authentication of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–49; III–50 See also Evidence, Authentication and identification. Promulgating orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(e) . . . . . . . . . . . . . . . . . II–178 Record of trial Certificate of correction . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–1 54 Examination preceding . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i) . . . . . . . . . . . . . . . . . II–150 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104 . . . . . . . . . . . . . . . . . . . II–152 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(c) . . . . . . . . . . . . . . . . . II–19 4 Authorization to search, seize and apprehend. See Search and seizure. Automobile. See Search and seizure, Automobile;Vehicle. Aviation cadet Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(2), UCMJ; R.C.M. 202(a) A2–1; II–13 Summary courts-martial, not subject to trial by . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Bad checks. See Checks. Bad-conduct discharge Multiple offenses, authorizing . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(3) . . . . . . . . . . . . . . . II –136 Prior convictions authorizing . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(2) . . . . . . . . . . . . . . . I I–136 Punishment, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(C) . . . . . . . . . . . . II–134 Special courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12 Summary courts-martial, power to adjudge . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–190 Bailiff Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Disqualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2) . . . . . . . . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C) . . . . . . . . . . . . . II–49 Qualifications Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Lack of, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II –49 Battery. See Assault. Bestiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 51 . . . . . . . . . . . . . . . . . . . . IV–98 Best evidence. See Evidence, Contents of writings, recordings, and photographs. Bias Ground for challenge of Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(N) . . . . . . . . . . . . . II–110 Index 6 MCM, 2016 INDEX
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Subject Ref. Page Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(a); 902(b)(1) . . . . . . . . . II–94 Impeachment of witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 608(c) . . . . . . . . . . . . . I II–41 Bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 65 . . . . . . . . . . . . . . . . . . . . IV–119 Bill of particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(6) . . . . . . . . . . . . . . . . II–10 0 Blasting caps, included in explosives . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(11) . . . . . . . . . . . . . . . . . II–1 Blood extraction, as evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11 Board, sanity. See Mental capacity; Mental responsibility. Boat. See Vessel. Bodily harm. See Assault. Body fluids, seizure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11 See also Search and seizure, Body views and intrusions. Bomb Explosive, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(11) . . . . . . . . . . . . . . . . . II–1 Hoax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 109 . . . . . . . . . . . . . . . . . . . IV–150 Threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 109 . . . . . . . . . . . . . . . . . . . IV–150 Breach of correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 70 . . . . . . . . . . . . . . . . . . . . IV–125 Breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 41 . . . . . . . . . . . . . . . . . . . . IV–59 Breaking and entering. See Burglary; Housebreaking; Unlawful entry. Breaking arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Breaking medical quarantine . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 100 . . . . . . . . . . . . . . . . . . . IV–144 Breaking restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 102 . . . . . . . . . . . . . . . . . . . IV–1 45 See also Restriction. Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 66 . . . . . . . . . . . . . . . . . . . . IV–120 Broadcasting of courts-martial, prohibited . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II–86 Burden of proof. See also Search and seizure, Burden of proof; Self- Incrimination, Burden of proof. Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(3) . . . . . . . . . . . . . . . . II–111 Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(b) . . . . . . . . . . . . . . . . . . II–115 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5) . . . . . . . . . . . . . . . . II–123 Motions Admissions and confessions . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–5 Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d) . . . . . . . . . . . . III–18 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c) . . . . . . . . . . . . . . . . . . II–97 Search and seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(5) . . . . . . . . . . III–9 Burglary Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 55 . . . . . . . . . . . . . . . . . . . . IV–105 Housebreaking, distinguished from . . . . . . . . . . . . . . . . . . . . IV. Para. 56c(1) . . . . . . . . . . . . . . . . IV–107 Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–60 Burning with intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 67 . . . . . . . . . . . . . . . . . . . . IV–121 Business records, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–46 Cadet Conduct unbecoming officer and gentlemen . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–112 Dismissal, punishment by . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II– 133 Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(2), UCMJ; R.C.M. 202 . . A2–1; II–13 Summary courts-martial, not subject to trial by . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Capital case See also Capital offense; Death, as punishment. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(2) . . . . . . . . . . . . . . . . . . II–1 Deposition, use in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 49, UCMJ; Mil. R. Evid. 804(b)(1) . . . . . . . . . . A2–15; III–48 Guilty plea prohibited in . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–106 Military judge alone, no jurisdiction to try . . . . . . . . . . . . . R.C.M. 201(f)(1)(C) . . . . . . . . . . . . . II–11 Notice of aggravating circumstances required . . . . . . . . . . . R.C.M. 1004(b)(1) . . . . . . . . . . . . . . . II–136 Procedures in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004(b) . . . . . . . . . . . . . . . . . II–136 Capital offense Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(3) . . . . . . . . . . . . . . . . . . II–1 Referral As noncapital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A) . . . . . . . . . . . . . I I–11 To special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(C) . . . . . . . . . . . . . II–12 To summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . I I–190 Captain’s mast. See Nonjudicial punishment. Index 7 MCM, 2016INDEX
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Subject Ref. Page Captured or abandoned property, offenses concerning . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39 Carrying concealed weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 112 . . . . . . . . . . . . . . . . . . . IV–152 Casting away arms or ammunition . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Causing false alarms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Censure Court-martial, member, military judge, or counsel, prohibited R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4 Provoking speech and gestures, distinguished . . . . . . . . . . . IV. Para. 42c(1) . . . . . . . . . . . . . . . . IV–60 Certificate of correction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–154 Challenges Control of, by military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II –78 Members For cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f) . . . . . . . . . . . . . . . . . . II–110 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912 . . . . . . . . . . . . . . . . . . . . II–109 Peremptory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(g) . . . . . . . . . . . . . . . . . . II–111 Presence of members during . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–84 Special court-martial without military judge . . . . . . . . R.C.M. 912(h) . . . . . . . . . . . . . . . . . . II–111 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–94 Change of venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(11) . . . . . . . . . . . . . . . II–1 01 Chaplains, privileged communications . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Character, evidence. See Evidence, Character evidence; Presentencing procedure. Charges and specifications See also specific offenses. Additional charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–28 Amendment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603 . . . . . . . . . . . . . . . . . . . . II–57 Bill of particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(6) . . . . . . . . . . . . . . . . II–100 Charge Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 4 . . . . . . . . . . . . . . . . . . . . A4–1 Definitions Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–28 Specification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(3) . . . . . . . . . . . . . . . . II–28 Dismissal of By commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(c)(1); 401(c)(1) . . . . . . . II–26; I I–32 By military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907 . . . . . . . . . . . . . . . . . . . . II–102 Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–76 Disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–32 Duplicious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(5) . . . . . . . . . . . . . . . . II–100 Error in citation, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(d) . . . . . . . . . . . . . . . . . . II–31 Failure to state offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(E) . . . . . . . . . . . . . II–103 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–120 Format . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(1); Appendix 4 . . . . II–28; A4–1 Forwarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(c)(2) . . . . . . . . . . . . . . . . II–33 Joinder of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4); 601(e)(2) . . . . . . . II–30; II–56 Joint offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(5); 601(e)(3) . . . . . . . II–31; II–56 Lesser included offenses. See Findings; Lesser included offenses. Motions as to defects in . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(2); 906(b)(4); 906(b)(5); 906(b)(6) . . . . . . . . . . . . . II–97; II–100 Multiple offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(5) . . . . . . . . . . . . . . . . II–31 Multiple offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4) . . . . . . . . . . . . . . . . II–30 Multiplicious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4); 1003(c)(1)(C) . . . II–30; II–135 Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–31 Papers, accompanying, discovery of . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1) . . . . . . . . . . . . . . . . II–59 Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–28 Preferral. See Preferral of charges. Preliminary hearing for. See Preliminary hearing. Reading of, as part of arraignment . . . . . . . . . . . . . . . . . . . . R.C.M. 904 . . . . . . . . . . . . . . . . . . . . II– 96 Referral. See Referral of charges. Service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–57 Severance of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5) . . . . . . . . . . . . . . . . II–97 Staff judge advocate, advice as to . . . . . . . . . . . . . . . . . . . . R.C.M. 406 . . . . . . . . . . . . . . . . . . . . II– 43 Statute of limitations, tolling . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(a) . . . . . . . . . . . . . . . . . . II–34 War, effect on disposition of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–33 ; II–44 Withdrawal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604 . . . . . . . . . . . . . . . . . . . . II–58 Pursuant to pretrial agreement . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–72 Index 8 MCM, 2016 INDEX
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Subject Ref. Page Checks Dishonorable failure to maintain funds . . . . . . . . . . . . . . . . . IV. Para. 68 . . . . . . . . . . . . . . . . . . . . IV– 121 Forged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 48 . . . . . . . . . . . . . . . . . . . . IV–92 Making, drawing, or uttering check, draft, or order without sufficient funds . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 49 . . . . . . . . . . . . . . . . . . . . IV–94 Child Sexual assault of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45b . . . . . . . . . . . . . . . . . . . IV–79 Sexual abuse of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45b . . . . . . . . . . . . . . . . . . . IV–79 Assault consummated by battery on . . . . . . . . . . . . . . . . . . . IV. Para. 54b(3)(c) . . . . . . . . . . . . . . IV–101 Endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 68a . . . . . . . . . . . . . . . . . . . IV–121 Indecent liberties with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–136 Rape of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45b . . . . . . . . . . . . . . . . . . . IV–79 Remote live testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c); R.C.M. 914A; Mil. R. Evid. 611(d) . . . . . . . . . . . . II–83; II–114; III–42 Forcible sodomy on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 51 . . . . . . . . . . . . . . . . . . . . IV–98 Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV Para. 44a . . . . . . . . . . . . . . . . . . . IV– 62 Witness, competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–40 Civilian authorities and tribunals Authority to apprehend persons under code . . . . . . . . . . . . R.C.M. 302(a)(2); 302(b)(3) . . . . . . . II–17; II–18 Control by, effect on absence without leave . . . . . . . . . . . . IV. Para. 10c(5) . . . . . . . . . . . . . . . . IV–14 Delivery of military offenders to . . . . . . . . . . . . . . . . . . . . . R.C.M. 106 . . . . . . . . . . . . . . . . . . . . II –6 Former jeopardy, effect of trial by . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d); 907(b)(2)(C) . . . . . . II–10; II–103 Martial law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(2) . . . . . . . . . . . . . . . . . I–1 Military occupation, superseding . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I –1 Offenses subject to trial by . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10 Civilian counsel. See Counsel; Defense counsel. Civilians Aiding the enemy, subject to trial for . . . . . . . . . . . . . . . . . IV. Para. 28c(1) . . . . . . . . . . . . . . . . IV–41 Authority to apprehend deserters . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(3) . . . . . . . . . . . . . . . . II– 18 Contempt, punishment for . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(a); 809(e) . . . . . . . . . . . II–88; II–89 Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(10); R.C.M. 202 . . . . . . . . A2–2; II–13 Orders, subject to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14c(3) . . . . . . . . . . . . . . . . IV–21 Spying, subject to trial for . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30c(3) . . . . . . . . . . . . . . . . IV–43 Witnesses Appear, neglect or refusal to . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–68 Subpoena of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2) . . . . . . . . . . . . . . . . II–67 Warrant of attachment . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–68 Claims, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Classified information Closure of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(2) . . . . . . . . . . . . . . . . II–85 Privilege concerning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25 Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b)(1)(D); 1104(b)(2) . . II –153; II–154 Clemency recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(b)(2)(D) . . . . . . . . . . . . II–155 Clergy, privileged communications to . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Clerk Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2) . . . . . . . . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C) . . . . . . . . . . . . . II–49 Lack of qualifications, action . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–49 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Co-accused. See Accomplices; Conspiracy; Principals. Code, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(4) . . . . . . . . . . . . . . . . . . II–1 Coercion Defense, as a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–117 Of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(a)(2) . . . . . . . . . . . . . . . . II–5 Of guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(d) . . . . . . . . . . . . . . . . . . II–107 Cohabitation, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 69 . . . . . . . . . . . . . . . . . . . . IV–125 Command Abandoning, surrendering, giving up . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–3 3 Compelling surrender or abandonment of . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36 Detached or separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(2)(A); 504(b)(2)(B) . II–51 Endangering safety of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Influence As an offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32 Index 9 MCM, 2016INDEX
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Subject Ref. Page Unlawful Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(a)(3) . . . . . . . . . . . . . . . . II–5 Over disposition of charges . . . . . . . . . . . . . . . . . . . . R.C.M. 306(a) . . . . . . . . . . . . . . . . . . II–25 Commander Appearance of accused at trial, responsibility for assistance R.C.M. 804(d)(1) . . . . . . . . . . . . . . . . II–83 Authorization to search. See Search and seizure. Charges and specifications, authority to change . . . . . . . . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . II–57 Charges, authority to dispose of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . I I–32 Confinement Post-trial, authority to order . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(b)(2) . . . . . . . . . . . . . . . II–144 Pretrial Action by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(h) . . . . . . . . . . . . . . . . . . II–22 Release, authority to order . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22 Convening authority. See Convening authority. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(5) . . . . . . . . . . . . . . . . . . II–1 For authorization to search . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–15 Dismissal of charges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(c)(1) . . . . . . . . . . . . . . . . II–32 Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401; 402 . . . . . . . . . . . . . . . . II–32; II–33 Disposition of offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25 Forwarding charges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(c)(2); 402 . . . . . . . . . . . II– 33 Influence, unlawful command . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104; IV. Para. 22 . . . . . . . . II–5; IV–32 Inquiry into reported offenses . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19 Lack of mental capacity or responsibility action on . . . . . R.C.M. 706(a) . . . . . . . . . . . . . . . . . . II–74 Nonjudicial punishment, authority to administer . . . . . . . . . V. Para. 1c; 1d; 2a . . . . . . . . . . . . . V–1; V–2 Notification to accused of charges . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II– 31 Preliminary investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19 Relations with court-martial, members, military judge . . . . R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4 Report of offense, forwarded to . . . . . . . . . . . . . . . . . . . . . . R.C.M. 301(b) . . . . . . . . . . . . . . . . . . II– 17 Subordinate, relations with . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(a); 401(a); 601(e) . . . . . II–25; II–32; II–55 Commissioned officer Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 14; 54 . . . . . . . . . . . . . . . IV–19; IV–100 Conduct unbecoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–112 Disobedience of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–19 Disrespect towards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13 . . . . . . . . . . . . . . . . . . . . IV–18 Preferral of charges, oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b)(1) . . . . . . . . . . . . . . . . II–28 Qualification as member of court-martial . . . . . . . . . . . . . . . R.C.M. 502(a)(1)(A) . . . . . . . . . . . . . II–45 Summary court-martial, power to try . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Commission, military. See Military commission. Common trial. See Joint trial. Communicating a threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 110 . . . . . . . . . . . . . . . . . . . IV–151 Communications, privileged. See Evidence, Privileges. Company punishment. See Nonjudicial punishment. Competency of witness. See Evidence, Competency. Composition of courts-martial Accused’s elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–95 Capital case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(C) . . . . . . . . . . . . . II–11 Changing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505 . . . . . . . . . . . . . . . . . . . . II–52 General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(1) . . . . . . . . . . . . . . . . II–45 Jurisdictional requisite . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(2) . . . . . . . . . . . . . . . . II–9 Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(2) . . . . . . . . . . . . . . . . II–45 Empowered to adjudge a bad-conduct discharge . . . . . R.C.M. 201(f)(2)(B)(ii) . . . . . . . . . . . II–12 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(a) . . . . . . . . . . . . . . . . . II–190 Concealment of Evidence, as accessory after the fact . . . . . . . . . . . . . . . . . . IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–3 Offender, as accessory after the fact . . . . . . . . . . . . . . . . . . IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–3 Stolen property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 106 . . . . . . . . . . . . . . . . . . . IV–148 Weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 112 . . . . . . . . . . . . . . . . . . . IV–152 Concurrent jurisdiction Civilian courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10 Investigation of offenses, subject to . . . . . . . . . . . . . . . . . . . Appendix 3 . . . . . . . . . . . . . . . . . . . . A3 –1 Military tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–13 Conditional guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–106 Conditions Index 10 MCM, 2016 INDEX
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Subject Ref. Page In pretrial agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c) . . . . . . . . . . . . . . . . . . II–72 Of suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(c) . . . . . . . . . . . . . . . . . II–167 On liberty Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(1) . . . . . . . . . . . . . . . . II–19 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304 . . . . . . . . . . . . . . . . . . . . II–19 Conduct Cowardly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23c(5) . . . . . . . . . . . . . . . . IV–35 Service discrediting, generally . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60c(3) . . . . . . . . . . . . . . . . IV–114 Unbecoming an officer and gentleman . . . . . . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–112 Conferences, pretrial Accused’s presence at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–82 Admissions made at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(e) . . . . . . . . . . . . . . . . . . II–82 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(a) . . . . . . . . . . . . . . . . . . II–81 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(f) . . . . . . . . . . . . . . . . . . II–82 Matters on record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(b) . . . . . . . . . . . . . . . . . . II–82 Rights of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(c) . . . . . . . . . . . . . . . . . . II–82 Confessional stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–72 Confessions. See Self-incrimination. Confinement Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–1 5 Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(D) . . . . . . . . . . . . II–165 Deferment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c) . . . . . . . . . . . . . . . . . II–144 See also Deferment of confinement. Escape from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Hard labor without. See Hard labor without confinement. In lieu of fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(e)(3) . . . . . . . . . . . . . . . II–177 On bread and water or diminished rations As nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(i); 5b(2)(B)(i); V. Para. 5c(5) . . . . . . . . . . . . . . . . . . V–4; V–5; V–6 Post-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101 . . . . . . . . . . . . . . . . . . . II–144 Pretrial Advice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(e) . . . . . . . . . . . . . . . . . . I I–22 Authority to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b); 305(c) . . . . . . . . . . . II–20; II–21 Conditions of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II–21 Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(e)(3); 305(f) . . . . . . . . . II–22 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(4); 305(a) . . . . . . . . . II–20; II–21 Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c); 305(d); 305(h)(2)(B) II–20; II–21; II–23 Illegal, remedy for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(j)(2); 305(k) . . . . . . . . . II–25 Motions concerning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(8) . . . . . . . . . . . . . . . . II– 100 Procedure for ordering . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305 . . . . . . . . . . . . . . . . . . . . II– 21 Punishment prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II– 21 Release Authority to direct . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II– 22 Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(k); 305(l) . . . . . . . . . . . . I I–25 Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–76 Review of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(i); 305(j) . . . . . . . . . . . . II–23; II–24 Sea, effect of being at . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(m) . . . . . . . . . . . . . . . . . II–25 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1); 707(b)(2) . . . . . . II–75 Punishment Contempt (Art. 48, UCMJ) . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(e) . . . . . . . . . . . . . . . . . . II–89 Deferment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c) . . . . . . . . . . . . . . . . . II–144 See also Deferment of confinement. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(e)(2) . . . . . . . . . . . . . . . II–176 General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii); 201(f)(1)(B)(ii) . . . . . . . . . . . . . . . . . . II–11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–133 Place of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(C); 1113(e)(2)(C) II–165 ; II–177 Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–190 Release from without authority . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–31 Unlawful, as offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32 Congress, contemptuous words against . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–17 Consent. See Search and seizure. Conspiracy Index 11 MCM, 2016INDEX
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Subject Ref. Page See also Principals. Evidence, statement of co-conspirator . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(2) . . . . . . . . . . III–45 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5 . . . . . . . . . . . . . . . . . . . . . IV–6 Constitution of the United States . . . . . . . . . . . . . . . . . . . . . . . . Appendix 1 . . . . . . . . . . . . . . . . . . . . A1–1 Constructive condonation of desertion . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–103 Constructive enlistment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13 Contempt See also Disrespect. Power of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(b)(2); 809 . . . . . . . . . . . II –79; II–88 Toward noncommissioned, petty, or warrant officer . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Toward public officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–17 Continuances As remedy for Failure to notify accused of charges . . . . . . . . . . . . . . R.C.M. 308(c) . . . . . . . . . . . . . . . . . . II–31 Failure to notify defense of evidence seized from the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(2)(B) . . . . . . . III–9 Failure to notify defense of immunity or leniency granted to a government witness . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d)(2) . . . . . . . . . . III–3 Failure to notify defense of prior identification of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d) . . . . . . . . . . . . II I–18 Failure to notify defense of statements of the accused Mil. R. Evid. 304(d) . . . . . . . . . . . . III–5 Noncompliance with the discovery requirements . . . . . R.C.M. 701(g)(3)(B) . . . . . . . . . . . . . II–62 Examination of witness’ prior statement, for purpose of . . R.C.M. 914(d) . . . . . . . . . . . . . . . . . . II–114 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(1) . . . . . . . . . . . . . . . . II–99 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707 . . . . . . . . . . . . . . . . . . . . II–75 Controlled substances, offenses involving . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Convening authority Accuser Disqualifications To convene general or special courts-martial . . . . . R.C.M. 504(c)(1) . . . . . . . . . . . . . . . . II–51 To convene summary courts-martial . . . . . . . . . . . . . R.C.M. 1302(a) . . . . . . . . . . . . . . . . . II–191 To refer charges to general or special courts-martial R.C.M. 601(c) . . . . . . . . . . . . . . . . . . II–55 Subordinate of, disqualified . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(c)(2) . . . . . . . . . . . . . . . . II–51 Action by. See Action of convening authority. Censure of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–5 Changing members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c) . . . . . . . . . . . . . . . . . . II–52 Charges and specifications Authority to change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . I I–57 Authority to dispose of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(a); 403(b); 404; 407 . . II–32; II–34; II–44 Command influence, unlawful . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II –5 Communications with staff judge advocate . . . . . . . . . . . . . R.C.M. 105(a) . . . . . . . . . . . . . . . . . . II–5 Contempt Action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(e); 809(f) . . . . . . . . . . . . II–89 Review of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(d) . . . . . . . . . . . . . . . . . . II–89 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(6) . . . . . . . . . . . . . . . . . . II–1 Delegation of authority as, prohibited . . . . . . . . . . . . . . . . . R.C.M. 504(b)(4) . . . . . . . . . . . . . . . . II–51 Deposition, authority to order . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(b) . . . . . . . . . . . . . . . . . . II–62 Detailing members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a) . . . . . . . . . . . . . . . . . . II–49 Disqualification to act as . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(c); 601(c) . . . . . . . . . . . II –51; II–55 Execution of sentences, authority to order . . . . . . . . . . . . . . R.C.M. 1113(b); 1113(c) . . . . . . . . . II–175 General court-martial Action on certain cases by . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112(f) . . . . . . . . . . . . . . . . . II–175 Constructive condonation of desertion . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–103 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(1) . . . . . . . . . . . . . . . . II–51 Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 407 . . . . . . . . . . . . . . . . . . . . II–4 4 Immunity, authority to grant . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(c) . . . . . . . . . . . . . . . . . . II–70 National security matters, duties regarding . . . . . . . . . R.C.M. 407(b) . . . . . . . . . . . . . . . . . . II–44 Vacation of suspension, action on . . . . . . . . . . . . . . . . R.C.M. 1109(d)(2) . . . . . . . . . . . . . . . II–169 Mental capacity or responsibility of accused, inquiry into R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–74 National security, case affecting disposition . . . . . . . . . . . . R.C.M. 401(d) . . . . . . . . . . . . . . . . . . II–33 Pretrial agreement, authority to enter . . . . . . . . . . . . . . . . . . R.C.M. 705(a); 705(d)(4) . . . . . . . . . II–71; II–7 3 Pretrial hearing, directed by . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(5); 404(e); 405(c); 407(a)(5) . . . . . . . . . . . . . . . . . . . . . . . II–34; II–35; II–36; II–44 Referral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(4); 404(d); 407(a)(4) II–1 Index 12 MCM, 2016 INDEX
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Subject Ref. Page R.C.M. 407(a)(6); 601 . . . . . . . . . . . II–44; II–55 Special court-martial Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(2) . . . . . . . . . . . . . . . . II–51 Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 404 . . . . . . . . . . . . . . . . . . . . II–3 4 Staff judge advocate Communications with . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 105(a) . . . . . . . . . . . . . . . . . . II–5 Delegation of authority Excusal of court members . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c)(1)(B) . . . . . . . . . . . . . II–52 Generally prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(4) . . . . . . . . . . . . . . . . II–51 Successors, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(6) . . . . . . . . . . . . . . . . . . II–1 Summary court-martial Charge sheet, recording receipt . . . . . . . . . . . . . . . . . . . R.C.M. 403(a) . . . . . . . . . . . . . . . . . . II–34 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(a) . . . . . . . . . . . . . . . . . II–191 Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b) . . . . . . . . . . . . . . . . . . II–34 Superior authority calling for transmittal of charges from subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(f) . . . . . . . . . . . . . . . . . . II–56 Superior authority withholding from subordinate the authority to dispose of charges . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(a); 401(a) . . . . . . . . . . . II–25; II–3 2 Withdrawal of charges by Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604 . . . . . . . . . . . . . . . . . . . . II–58 Pretrial agreement, pursuant to . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–72 Convening courts-martial See also Convening authority. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504 . . . . . . . . . . . . . . . . . . . . II–51 Jurisdictional requisite, as a . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b) . . . . . . . . . . . . . . . . . . II–9 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302 . . . . . . . . . . . . . . . . . . . II–191 Convening orders Amending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–52 Changing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–52 Defense, copies to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(B) . . . . . . . . . . . . . II–59 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 6 . . . . . . . . . . . . . . . . . . . . A6–1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(d) . . . . . . . . . . . . . . . . . . II–52 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(c) . . . . . . . . . . . . . . . . . II–191 Convictions, prior Admissibility in aggravation . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(b)(3) . . . . . . . . . . . . . . . II–127 Finality of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–187 Impeachment by evidence of . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III– 41 Increasing punishment authorized . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(1); 1003(d)(2) . . . . II–136 Correctional custody Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(ii); 5b(2)(B)(ii); V. Para. 5c(4) . . . . . . . . . . . . . . . . . . V–4; V–5 Offenses against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 70 . . . . . . . . . . . . . . . . . . . . IV–125 Correction of record of trial After authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–154 Before authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i) . . . . . . . . . . . . . . . . . II–150 Corroboration of confession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c) . . . . . . . . . . . . . III–5 Counsel See also Defense counsel; Trial counsel; Victim counsel. Appellate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(1); 1202 . . . . . . . . . . II–105; II–181 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c) . . . . . . . . . . . . . . . . . . II–50 General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II –45 Special courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II –45 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–19 1 Qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–46 Supervision of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6 Suspension of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6 Counseling commission of offense . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1 Countersign, improper use of . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 25 . . . . . . . . . . . . . . . . . . . . IV–37 Court-martial Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(8) . . . . . . . . . . . . . . . . . . II–1 Types of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f) . . . . . . . . . . . . . . . . . . II–11 Court-martial orders. See Promulgating orders. Court of inquiry Admissibility of evidence taken in . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Index 13 MCM, 2016INDEX
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Subject Ref. Page Application of Rules for Courts-Martial to . . . . . . . . . . . . . I. Para. 2(b)(3) . . . . . . . . . . . . . . . . . I–1 Exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(3) . . . . . . . . . . . . . . . . . I–1 Nonjudicial punishment based on . . . . . . . . . . . . . . . . . . . . . V. Para. 4d . . . . . . . . . . . . . . . . . . . . V–4 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(3) . . . . . . . . . . . . . . . . . I–1 Subpoena, authority to issue . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(C) . . . . . . . . . . . . . II–6 7 Court of Appeals for the Armed Forces Action on decision by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(c) . . . . . . . . . . . . . . . . . II–185 Appeals by United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(3) . . . . . . . . . . . . . . . . II–105 Cases reviewed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(a) . . . . . . . . . . . . . . . . . II–184 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204 . . . . . . . . . . . . . . . . . . . II–184 Petition by accused to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(b) . . . . . . . . . . . . . . . . . II–185 Court of Criminal Appeals Action on decision by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(c) . . . . . . . . . . . . . . . . . II–182 Appeals by United States to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(b)(7) . . . . . . . . . . . . . . . . II –104 Armed force of accused as determining which court reviews R.C.M. 201(e)(5) . . . . . . . . . . . . . . . . II–11 Cases reviewed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(b) . . . . . . . . . . . . . . . . . II–182 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203 . . . . . . . . . . . . . . . . . . . II–182 Notification to accused of decision . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(d) . . . . . . . . . . . . . . . . . II–1 83 Cowardly conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . I V–33 Crimes See Offenses; specific topics. Crimes and offenses not capital . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60 . . . . . . . . . . . . . . . . . . . . IV–113 Cross-examination at Court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611 . . . . . . . . . . . . . . . III–42 Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1)(B); 702(g)(2)(C) . II–64 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(e)(2); 405(f)(2) . . . . . . . I I–37 Cruelty and maltreatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 17 . . . . . . . . . . . . . . . . . . . . IV–26 Culpable negligence, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44c(2)(a)(i) . . . . . . . . . . . . IV–63 Custody Correctional. See Correctional custody. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19c(4)(a) . . . . . . . . . . . . . . IV–29 Escaped from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Damage Military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Nonmilitary property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–48 Dangerous weapon, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54c(4)(a)(i) . . . . . . . . . . . . IV–103 See also Assault. Death, as punishment See also Capital case; Capital offense. Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28e . . . . . . . . . . . . . . . . . . . IV–41 Assaulting officer, time of war . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14e(3) . . . . . . . . . . . . . . . . IV –21 Countersign, improper use of . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 25e . . . . . . . . . . . . . . . . . . . IV–38 Desertion, time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9e(3) . . . . . . . . . . . . . . . . . IV–13 Disobedience of officer, time of war . . . . . . . . . . . . . . . . . . IV. Para. 14e(3) . . . . . . . . . . . . . . . . IV–21 Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(3); 1113(e)(1) . . . . . II–176 General court-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii); 201(f)(1)(B)(ii) . . . . . . . . . . . . . . . . . . II–11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(9) . . . . . . . . . . . . . . . II–134 Mandatory, votes required . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006(d)(4)(A) . . . . . . . . . . . . II–1 41 Misbehavior before enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23e . . . . . . . . . . . . . . . . . . . IV–35 Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43e(1) . . . . . . . . . . . . . . . . IV–62 Mutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18e . . . . . . . . . . . . . . . . . . . IV–27 Procedures for adjudging . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004 . . . . . . . . . . . . . . . . . . . II–136 Safeguard, forcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 26e . . . . . . . . . . . . . . . . . . . IV–39 Sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18e . . . . . . . . . . . . . . . . . . . IV–27 Solicitation to desert, mutiny, to commit acts of misbehavior before the enemy, or to commit sedition . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Special court-martial, no power to adjudge . . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12 Spying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30e . . . . . . . . . . . . . . . . . . . IV–44 Summary court-martial, no power to adjudge . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–190 Surrender, subordinate compelling . . . . . . . . . . . . . . . . . . . . . IV. Para. 24e . . . . . . . . . . . . . . . . . . . I V–37 Debt, dishonorably failing to pay . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 71 . . . . . . . . . . . . . . . . . . . . IV–126 Defendant. See Accused. Defense counsel Index 14 MCM, 2016 INDEX
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Subject Ref. Page Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–84 Accused Inquiry as to rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . I I–93 Rights to, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506 . . . . . . . . . . . . . . . . . . . . II–53 Announcement of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(7) . . . . . . . . . . . . . . . . II–92 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c)(2) . . . . . . . . . . . . . . . . II–50 Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(6) . . . . . . . . . . . . . . . . II–92 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(2) . . . . . . . . . . . . . . . . II–93 Appellate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202 . . . . . . . . . . . . . . . . . . . II–181 Assistant and associate Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–84 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 503(c) . . . . . . . . . . . II–45; II–50 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4); 502(f) . . . . . . . . . II– 47; II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–48 Individual counsel, effect of . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–54 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–87 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–46 Change of Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(c) . . . . . . . . . . . . . . . . . . II–92 Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2); 506(b)(3); 506(c) II–53; II–54 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–52 Civilian Accused’s right to Appellate review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202 . . . . . . . . . . . . . . . . . . . II–1 81 Court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506 . . . . . . . . . . . . . . . . . . . . II–53 During interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d) . . . . . . . . . . . . III–7 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(C) . . . . . . . . . . . . . II–36 Pretrial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(e)(3) . . . . . . . . . . . . . . . . II–22 Advice to accused at trial concerning right to . . . . . . R.C.M. 901(d)(4)(A) . . . . . . . . . . . . . II–93 Disqualification, action on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(3) . . . . . . . . . . . . . . . . II–93 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(3) . . . . . . . . . . . . . . . . II–46 Deposition, detailed or assigned for . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(2) . . . . . . . . . . . . . . . . II–63 Detailed Accused’s right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(a) . . . . . . . . . . . . . . . . . . II–53 Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(a); 505(b); 505(d)(2) . . II–52; I I–53 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(10) . . . . . . . . . . . . . . . . . II–1 Different armed force, counsel from . . . . . . . . . . . . . . . R.C.M. 503(c)(3) . . . . . . . . . . . . . . . . II–50 Disqualification, action on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(3) . . . . . . . . . . . . . . . . II–93 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–48 Excusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2); 506(c) . . . . . . . . . II–53; II–54 General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . I I–45 Individual military counsel, effect of Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–54 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(B) . . . . . . . . . . . . . II–36 Motion to retain Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–54 Preserved for record . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(2) . . . . . . . . . . . . . . . . II– 99 When made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(6) . . . . . . . . . . . . . . . . II–97 Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c)(2) . . . . . . . . . . . . . . . . II–50 Preliminary hearing, right to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405 . . . . . . . . . . . . . . . . . . . . II–35 Pretrial confinement, right to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22 Qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1) . . . . . . . . . . . . . . . . II–46 Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–45 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2)(B); 506(c) . . . . . . II–53; II–54 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4); 901(d)(3) . . . . . . II–47; II–93 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–48 Evaluation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(b)(1) . . . . . . . . . . . . . . . . II–5 Identification, right to at . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(2) . . . . . . . . . . I II–17 Individual military counsel Accused’s right to request . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(a) . . . . . . . . . . . . . . . . . . II–53 Advice at trial to accused concerning right to . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–93 Attorney-client relationship affecting right to . . . . . . . R.C.M. 506(b)(2) . . . . . . . . . . . . . . . . II–54 Availability to act as . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(1); 506(b)(2) . . . . . . II–53; II–54 Index 15 MCM, 2016INDEX
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Subject Ref. Page Detailed counsel, excusal of . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–54 Motion on request for . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(6) . . . . . . . . . . . . . . . . II–9 7 Preliminary hearing, right to at . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(B) . . . . . . . . . . . . . II–36 Pretrial confinement, no right to . . . . . . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22 Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(2) . . . . . . . . . . . . . . . . II–54 Qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(3) . . . . . . . . . . . . . . . . II–46 Interrogation, right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d); 305(e) . . . . . . II I–7 Member, ineligible to serve as . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(E) . . . . . . . . . . . . . II–110 Military judge, disqualified to act as . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(2) . . . . . . . . . . . . . . . . II–94 Nonlawyer presence at counsel table . . . . . . . . . . . . . . . . . . R.C.M. 506(e) . . . . . . . . . . . . . . . . . . II–54 Oath Announcement of status as to . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(2) . . . . . . . . . . . . . . . . II–93 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Requirement to take . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(5) . . . . . . . . . . . . . . . . II–9 4 Post-trial duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–48 Presence of Article 39(a) sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . I I–82 Findings announcement . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(a) . . . . . . . . . . . . . . . . . . II–12 5 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805 . . . . . . . . . . . . . . . . . . . . II–84 Pretrial conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802 . . . . . . . . . . . . . . . . . . . . II–81 Sentence announcement . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007(a) . . . . . . . . . . . . . . . . . II–142 Pretrial agreement, waiver not permitted . . . . . . . . . . . . . . . R.C.M. 705(c)(1)(B) . . . . . . . . . . . . . II–72 Pretrial confinement, right to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22 Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . I II–23 Summary courts-martial, right to . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II– 191 Waiver of appellate review, right to consult with . . . . . . . R.C.M. 1110(b)(2) . . . . . . . . . . . . . . . II–172 Waiver of right to, in courts-martial . . . . . . . . . . . . . . . . . . R.C.M. 506(d) . . . . . . . . . . . . . . . . . . II–54 Withdrawal of appellate review, right to consult with . . . . R.C.M. 1110(b)(3) . . . . . . . . . . . . . . . II–172 Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–11 7 Defenses Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(f) . . . . . . . . . . . . . . . . . . II–117 Alibi, notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(b) . . . . . . . . . . . . . . . . . . II–115 Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–117 Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–117 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(a) . . . . . . . . . . . . . . . . . . II–115 Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–117 Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(g) . . . . . . . . . . . . . . . . . . II–117 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916 . . . . . . . . . . . . . . . . . . . . II–115 Ignorance of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–118 Ignorance of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–119 Inability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–118 Instructions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(3) . . . . . . . . . . . . . . . . II–122 Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(c) . . . . . . . . . . . . . . . . . . II–116 Lack of mental responsibility Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k) . . . . . . . . . . . . . . . . . . II–118 Notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Mistake of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–118 Mistake of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–119 Obedience to orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(d) . . . . . . . . . . . . . . . . . . II–116 Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–116 Voluntary intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(2) . . . . . . . . . . . . . . . . II–119 Withdrawn, effect of notice . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–61 Deferment of confinement Action of convening authority . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(E) . . . . . . . . . . . . II–165 Contempt cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(e) . . . . . . . . . . . . . . . . . . II–89 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c) . . . . . . . . . . . . . . . . . II–144 Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(4); 1114(c)(1) . . . . . II–144; II–178 Termination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(6) . . . . . . . . . . . . . . . II–145 Defraud See also Fraud. Burning with intent to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 67 . . . . . . . . . . . . . . . . . . . . IV–121 Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4 Delay Index 16 MCM, 2016 INDEX
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Subject Ref. Page See also Continuances. Government appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(b)(1) . . . . . . . . . . . . . . . . II–104 Responsibility for, as offense . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32 Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–76 Delegation Authority to impose pretrial restraint . . . . . . . . . . . . . . . . . . R.C.M. 304(b)(3) . . . . . . . . . . . . . . . . II–20 Convening courts-martial, power to . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(4) . . . . . . . . . . . . . . . . II–51 Excusal of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c)(1)(B) . . . . . . . . . . . . . II–52 Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2c . . . . . . . . . . . . . . . . . . . . V–2 Deliberations and voting Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004(b)(7) . . . . . . . . . . . . . . . II–137 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921 . . . . . . . . . . . . . . . . . . . . II–123 Interlocutory questions, special court-martial without military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(3) . . . . . . . . . . . . . . . . II–80 Military judge, presence during . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . I I–84 Privilege protecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 509 . . . . . . . . . . . . . . . III–36 Exceptions to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006 . . . . . . . . . . . . . . . . . . . II–140 Delivering less than amount called for by receipt . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Deposition Admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1); R.C.M. 1001(b)(4) . . . . . . . . . . . . . . . III–48; II–128 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702 . . . . . . . . . . . . . . . . . . . . II–62 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(h) . . . . . . . . . . . . . . . . . . II–65 Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(1); 702(f) . . . . . . . . . II–63; II–64 Oral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1); 702(h)(2) . . . . . . II–64; II–65 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g) . . . . . . . . . . . . . . . . . . II–64 Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(c) . . . . . . . . . . . . . . . . . . II–63 Who may order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(b) . . . . . . . . . . . . . . . . . . II–62 Witnesses, subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 47, UCMJ; Appendix 7 . . . . . . A2–15; A7–1 Written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(2); 702(h)(3) . . . . . . II–64; II–65 Dereliction in the performance of duty . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Desertion Apprehend deserter, authority to . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(3) . . . . . . . . . . . . . . . . II– 18 Attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(6)(a); 9 . . . . . . . . . . . . . IV–5; IV–10 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9 . . . . . . . . . . . . . . . . . . . . . IV–10 Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Destroying Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–138 Military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Nonmilitary property Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–48 Reparation for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 139, UCMJ . . . . . . . . . . . . . . . . A 2–39 Detail Bailiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 503(c) . . . . . . . . . . . II–45; II–50 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(10) . . . . . . . . . . . . . . . . . II–1 Escort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a) . . . . . . . . . . . . . . . . . . II–49 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b) . . . . . . . . . . . . . . . . . . II–50 Orderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Orders Amending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–52 Appointing counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c)(2) . . . . . . . . . . . . . . . . II– 50 Appointing military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b)(2) . . . . . . . . . . . . . . . . II–50 Convening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(d) . . . . . . . . . . . . . . . . . . II–52 Reporter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 503(c) . . . . . . . . . . . II–45; II–50 Detention, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV– 32 Discharge See also Bad-conduct discharge; Dishonorable discharge. Effecting fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . 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Subject Ref. Page Firearms Negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 80 . . . . . . . . . . . . . . . . . . . . IV–132 Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 81 . . . . . . . . . . . . . . . . . . . . IV–132 Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–9 Disclosure and discovery Aggravating circumstances, notice in capital cases . . . . . . . R.C.M. 1004(b)(1) . . . . . . . . . . . . . . . II–136 Alibi defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Amending orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(B) . . . . . . . . . . . . . II–59 Charges, papers, accompanying . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(A) . . . . . . . . . . . . . II–59 Classified or privileged government information, intent to disclose at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505(i); 506(i) . . . . . . II I–28; III–33 Continuing duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(d) . . . . . . . . . . . . . . . . . . II–61 Convening orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(B) . . . . . . . . . . . . . II–59 Convictions, prior Accused, used against . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(4); 701(a)(5)(A) . . . . II–59 Witnesses, impeachment by convictions older than 10 years, intent to use . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609(b) . . . . . . . . . . . . III–42 Defense, disclosure by, generally . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b) . . . . . . . . . . . . . . . . . . II– 60 Defense, intent to use insanity . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II –60 Defense, withdrawn, inadmissibility . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–6 1 Deposition, witness statements . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1)(B) . . . . . . . . . . . . . II–6 4 Documents In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–6 0 In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–59 Evidence Access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–61 Favorable to defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(6) . . . . . . . . . . . . . . . . II– 59 Prior identifications of the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d)(1) . . . . . . . . . . III–18 Seized from the accused . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9 Examinations, physical In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–6 0 In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–59 Following direction of preliminary hearing . . . . . . . . . . . . . R.C.M. 404A . . . . . . . . . . . . . . . . . . . II–35 Foreign law, intent to request judicial notice of . . . . . . . . Mil. R. Evid. 202(b) . . . . . . . . . . . . III–2 Mental examinations In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–6 0 In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–59 Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–37 Statements of accused related to . . . . . . . . . . . . . . . . . . R.C.M. 706(c)(5); Mil. R. Evid. 302 II–75; III–4 Military judge, regulation of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g) . . . . . . . . . . . . . . . . . . II–61 Military Rules of Evidence, pursuant to Evidence seized from the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9 Prior identifications of the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d)(1) . . . . . . . . . . III–18 Statements of the accused . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d) . . . . . . . . . . . . III–5 Motion relating to Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(7) . . . . . . . . . . . . . . . . II–100 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–98 When made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4) . . . . . . . . . . . . . . . . II–97 Noncompliance, remedy for . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II –62 Objects In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–6 0 In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–59 Orders, protective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(2) . . . . . . . . . . . . . . . . II–61 Photographs In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–6 0 In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–59 Preparation for trial, opportunity . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–61 Prior statements of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–113 Privileged information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(f) . . . . . . . . . . . . . . . . . . II–61 See also Evidence, Privileges. Psychiatric experts, intent to use . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2); Mil. R. Evid. 513 II–60; III–37 Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . I II–37 Regulation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g) . . . . . . . . . . . . . . . . . . II–61 Remedy for noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II– 62 Index 18 MCM, 2016 INDEX
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Subject Ref. Page Sexual behavior of victim, intent to offer evidence of . . . Mil. R. Evid. 412(c) . . . . . . . . . . . . . III–21 Statements relating to an offense . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(C) . . . . . . . . . . . . . II–59 Statements of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d) . . . . . . . . . . . . III– 5 Tests In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–6 0 In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–59 Trial counsel, disclosure by, generally . . . . . . . . . . . . . . . . . R.C.M. 701(a) . . . . . . . . . . . . . . . . . . II–59 Witnesses Access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–61 Accused’s limited testimony on motion, intent to use M i l . R . E v i d . 3 0 4 ( f ) ; 3 1 1 ( d ) ( 6 ) ; 321(d)(5) . . . . . . . . . . . . . . . . . . . . . . . III–5; III–10; III–18 Alibi, defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Failure to call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(c) . . . . . . . . . . . . . . . . . . II–61 Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(3)(A) . . . . . . . . . . . . . II–59 Prior statements of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–113 Psychiatric experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2); Mil. R. Evid. 513 II–60; III–37 Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–37 Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(3)(B) . . . . . . . . . . . . . II–59 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(5)(B) . . . . . . . . . . . . . II–59 Work product of counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(f) . . . . . . . . . . . . . . . . . . II–61 Discredit, conduct of a nature to bring on armed forces . . IV. Para. 60c(3) . . . . . . . . . . . . . . . . IV–114 Dishonorable discharge Death, included in sentence of . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004(e) . . . . . . . . . . . . . . . . . II– 139 Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(1) . . . . . . . . . . . . . . . II–175 General courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(B) . . . . . . . . . . . . II–134 Previous convictions authorizing . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(1) . . . . . . . . . . . . . . . II–1 36 Special courts-martial, no power to adjudge . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12 Summary courts-martial, no power to adjudge . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–190 Dishonorably failing to maintain funds . . . . . . . . . . . . . . . . . . IV. Para. 68 . . . . . . . . . . . . . . . . . . . . IV–121 Dishonorably failing to pay debt . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 71 . . . . . . . . . . . . . . . . . . . . IV–126 Disloyal statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 72 . . . . . . . . . . . . . . . . . . . . I V–127 Dismissal Charges. See Charges and specifications. Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, included in sentence of . . . . . . . . . . . . . . . . . . . R.C.M. 1004(e) . . . . . . . . . . . . . . . . . II–139 Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(2) . . . . . . . . . . . . . . . II–176 General courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–133 Special courts-martial, no power to adjudge . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12 Disobedience of orders Failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Willful Commissioned officer . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . I V–19 Noncommissioned, petty, or warrant officer . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Disorderly conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 73 . . . . . . . . . . . . . . . . . . . . I V–127 Disposition of charges, generally . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–32 Disposition of military property, wrongful . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Disposition of offenses, generally . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25 Disposition of record of trial after action . . . . . . . . . . . . . . . . R.C.M. 1111 . . . . . . . . . . . . . . . . . . . II–173 Disqualification See also specific topics. Discovery of, as to detailed personnel . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–49 Disrespect Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13c(3) . . . . . . . . . . . . . . . . IV–18 Sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–147 Superior commissioned officer . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13 . . . . . . . . . . . . . . . . . . . . IV–18 Noncommissioned, petty, or warrant officer . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Distribution of controlled substances . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Docketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(1) . . . . . . . . . . . . . . . . II–78 Documents Authentication requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901 . . . . . . . . . . . . . . . III–49 False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–45 Hearsay exceptions, declarant unavailable . . . . . . . . . . . . . . Mil. R. Evid. 804 . . . . . . . . . . . . . . . III–48 Index 19 MCM, 2016INDEX
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Subject Ref. Page Hearsay exceptions, generally . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803 . . . . . . . . . . . . . . . III –45 Hearsay inadmissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 802 . . . . . . . . . . . . . . . III–45 Original needed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–51 Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–50 Double jeopardy. See Former jeopardy. Draft, share or bank. See Checks. Drinking liquor with prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 74 . . . . . . . . . . . . . . . . . . . . IV–128 Driving, drunken or reckless . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–50 Drugs Inspection for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–11 Offenses involving illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Drunk See also Intoxication. And disorderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 73 . . . . . . . . . . . . . . . . . . . . IV–127 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35c(6) . . . . . . . . . . . . . . . . IV–51 Driving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–50 On duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 36 . . . . . . . . . . . . . . . . . . . . IV–52 On station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 73 . . . . . . . . . . . . . . . . . . . . IV–127 Prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 75 . . . . . . . . . . . . . . . . . . . . IV–128 Sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–56 Drunkenness, incapacitation for performance of duties through . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 76 . . . . . . . . . . . . . . . . . . . . IV–129 Dueling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 39 . . . . . . . . . . . . . . . . . . . . IV–57 Dupliciousness, in charging See also Charges and specifications. Motion to sever . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(5) . . . . . . . . . . . . . . . . II–100 Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–117 Duty Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 36c(2) . . . . . . . . . . . . . . . . IV–52 Dereliction in the performance of . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Drunk on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 36 . . . . . . . . . . . . . . . . . . . . IV–52 Going from place of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–13 To obey orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16c(2)(c) . . . . . . . . . . . . . . IV–24 Dying declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–48 Eavesdropping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Effecting unlawful enlistment, appointment, or separation . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–10 Efficiency reports, members, military judge, counsel . . . . . . . . R.C.M. 104(b) . . . . . . . . . . . . . . . . . . II–5 Elements of offense See also specific offenses. Instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(1); 920(e)(2) . . . . . . . II–122 Lesser included offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 3b(1) . . . . . . . . . . . . . . . . . IV–3 Specification, alleging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(1); 307(c)(3) . . . . . . . I I–28 Embezzlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–87 Emergency searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(i) . . . . . . . . . . . . . III–14 Endangering command, unit, place, or military property . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Enemy Aiding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–40 Commission, military, jurisdiction over . . . . . . . . . . . . . . . . I. Para. 2(b)(2); R.C.M. 201(g) . . . . I–1; II–13 Communicating with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–40 Confinement with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 12, UCMJ . . . . . . . . . . . . . . . . . A2–5 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23c(1)(b) . . . . . . . . . . . . . . IV–34 Failing to engage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Military government, subject to . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1 Misbehavior before . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Prisoner in hands of, misconduct . . . . . . . . . . . . . . . . . . . . . IV. Para. 29 . . . . . . . . . . . . . . . . . . . . I V–42 Property taken from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39 Running away before . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Spying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43 Enlisted persons Detailed to serve as court members . . . . . . . . . . . . . . . . . . . R.C.M. 503(a)(2) . . . . . . . . . . . . . . . . II–49 Request by accused for court members . . . . . . . . . . . . . . . . R.C.M. 503(a)(2) . . . . . . . . . . . . . . . . II–49 Restraint of, who may order . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . I I–20 Unit, same as accused for court members . . . . . . . . . . . . . . R.C.M. 912(f)(1)(A); 912(f)(4) . . . . II–110; II–111 Enlistment Index 20 MCM, 2016 INDEX
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Subject Ref. Page Constructive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(c), UCMJ . . . . . . . . . . . . . . . . A2–2 Desertion, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9c(1)(d) . . . . . . . . . . . . . . . IV–12 Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–9 Unlawful, effecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–10 Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(g) . . . . . . . . . . . . . . . . . . II–117 Entry, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 111 . . . . . . . . . . . . . . . . . . . IV–152 Escalator clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d) . . . . . . . . . . . . . . . . . I I–136 Escape Assisting another to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–3 Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 70 . . . . . . . . . . . . . . . . . . . . IV–125 Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Prisoner of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28c(3) . . . . . . . . . . . . . . . . IV–41 Suffering prisoner to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–31 Escort Designation by military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II –113 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2); 502(f) . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C); 913(c)(3) . . . . II–49; II–113 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Views and inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–113 Espionage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43 IV. Para. 30a . . . . . . . . . . . . . . . . . . . IV–43 Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 105 . . . . . . . . . . . . . . . . . . . IV–148 Evidence See also Search and seizure; Self-incrimination Absence of entry in records . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(7) . . . . . . . . . . . . III–46 Absence of public record or entry . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(10) . . . . . . . . . . . III–47 Access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–61 Accident, evidence of other crimes, wrongs, or acts to prove absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Accused Character of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(a)(1) . . . . . . . . . . II I–19 Favorable to, disclosure by trial counsel . . . . . . . . . . . R.C.M. 701(a)(6) . . . . . . . . . . . . . . . . II–59 Testimony by, concerning admissibility of an admission or confession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304 . . . . . . . . . . . . . . . III –4 Testimony by, concerning admissibility of evidence obtained from an unlawful search or seizure . . . . . Mil. R. Evid. 311(d)(6) . . . . . . . . . . III–10 Testimony by, concerning admissibility of eyewitness identification evidence . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d)(5) . . . . . . . . . . III–18 Testimony upon preliminary matter, generally . . . . . . . Mil. R. Evid. 104(d) . . . . . . . . . . . . III–2 Adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2 Admissibility Effect of relevancy upon . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 402; 403 . . . . . . . . . . III–19 Preserving a claim of error . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a) . . . . . . . . . . . . . III–1 For limited purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III –2 Motion as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(13) . . . . . . . . . . . . . . . II–101 Preliminary determinations concerning . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1 Admissions. See Self-Incrimination. Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(c) . . . . . . . . . . . . . III–20 Amendments to the Military Rules of Evidence . . . . . . . . . Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–52 Analysis of the Military Rules of Evidence . . . . . . . . . . . . Appendix 22 . . . . . . . . . . . . . . . . . . . A22–1 Ancient documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(16) . . . . . . . . . . . III–47 Annulment of conviction, effect on impeachment . . . . . . . . Mil. R. Evid. 609(c) . . . . . . . . . . . . . III–42 Appeal, effect on impeachment by evidence of conviction Mil. R. Evid. 609(e) . . . . . . . . . . . . . III–42 Applicability of rules Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(a); 1101(a) . . . . . III–1; III–52 Other evidentiary rules . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(b) . . . . . . . . . . . . III–1 Attorney-client privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23 Authentication and identification Attesting certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902(4) . . . . . . . . . . . . III–5 0 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(a) . . . . . . . . . . . . . III–49 Illustrations of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(b) . . . . . . . . . . . . I II–49 Index 21 MCM, 2016INDEX
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Subject Ref. Page Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . I II–50 Subscribing witness’ testimony unnecessary . . . . . . . . . Mil. R. Evid. 903 . . . . . . . . . . . . . . . III–51 Availability of a witness, determination of . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1 Baptismal certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(12) . . . . . . . . . . . III–47 Best evidence rule. See Contents of writings, recordings, and photographs, this heading. Bias or prejudice Compromise and offer to compromise, admissibility to prove . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 408 . . . . . . . . . . . . . . . III–20 Evidence of bias to impeach . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 608(c) . . . . . . . . . . . . . III–41 Exclusion of unfairly prejudicial evidence . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19 Burden of proof. See Burden of proof. Business entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–46 Certificate of rehabilitation, effect on impeachment . . . . . . Mil. R. Evid. 609(c) . . . . . . . . . . . . . III–42 Chaplain, privileged communications to . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Character Evidence of similar sexual crimes . . . . . . . . . . . . . . . . Mil. R. Evid 413; 414 . . . . . . . . . . . III–22 Inadmissibility to prove conduct; exceptions . . . . . . . . Mil. R. Evid. 404 . . . . . . . . . . . . . . . III–19 Methods of proving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405 . . . . . . . . . . . . . . . III– 20 Circumstantial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–121 Classified information, privilege concerning . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25 Clergyman Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503(b)(1) . . . . . . . . . . III–24 Privileged communications to . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503(a) . . . . . . . . . . . . . III–24 Co-accused, statements at joint trial . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8 Co-conspirator, statements of . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(2) . . . . . . . . . . III–4 5 Commercial publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III –47 Common law rules, applicability . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(b)(2) . . . . . . . . . . III–1 Competency Court members as witnesses . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 Military judge as witness . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–41 Witnesses, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III– 40 Compromise and offer to compromise . . . . . . . . . . . . . . . . . Mil. R. Evid. 408 . . . . . . . . . . . . . . . III–20 Concealing, as grounds for being accessory after the fact IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–3 Confessions. See Self-Incrimination. Confidential or privileged communications. See Privileges, this heading. Confusion of the issues, as grounds for, excluding relevant evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19 Conspiracy, statement of co-conspirator . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(2) . . . . . . . . . . III–45 Contents of writings, recordings, and photographs Admissibility of duplicates . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1003 . . . . . . . . . . . . . . III–51 Admissibility of other evidence as proof . . . . . . . . . . . Mil. R. Evid. 1004 . . . . . . . . . . . . . . III–51 Determination of fact issues related to . . . . . . . . . . . . . Mil. R. Evid. 1008 . . . . . . . . . . . . . . III–52 Proof by testimony or written admission of party . . . Mil. R. Evid. 1007 . . . . . . . . . . . . . . III–52 Public records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1005 . . . . . . . . . . . . . . III–52 Requirement of an original . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–51 Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1006 . . . . . . . . . . . . . . III–52 Continuance, determination by military judge . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1 Control, proof by subsequent remedial measures . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20 Conviction of crime, impeachment by . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–41 Corroboration Confessions or admissions . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c) . . . . . . . . . . . . . III–5 Witness’ prior identification to corroborate in-court identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(a) . . . . . . . . . . . . . I II–17 Court-martial, power to obtain evidence . . . . . . . . . . . . . . . R.C.M. 801(c) . . . . . . . . . . . . . . . . . . II–79 Credibility or weight, right to introduce evidence concerning Mil. R. Evid. 104(e) . . . . . . . . . . . . . III–2 Cross-examination Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(b) . . . . . . . . . . . . III–42 Specific incidents of conduct to impeach . . . . . . . . . . Mil. R. Evid. 608(b) . . . . . . . . . . . . III–41 Cumulative, as grounds for excluding relevant evidence . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19 Death, statement under belief of impending . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–48 Declarant Index 22 MCM, 2016 INDEX
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Subject Ref. Page Attacking and supporting credibility of hearsay declarant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 806 . . . . . . . . . . . . . . . III–4 9 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(b) . . . . . . . . . . . . III–45 Unavailability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(a) . . . . . . . . . . . . . III–48 Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4 Deliberations of courts and juries, privilege concerning . . Mil. R. Evid. 509; 606 . . . . . . . . . . III–36; III–41 Disclosure, required Evidence of prior identification of the accused . . . . . Mil. R. Evid. 321(d)(1) . . . . . . . . . . III–18 Evidence seized from the person or property of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III –9 Immunity or leniency granted to a witness . . . . . . . . . Mil. R. Evid. 301(d) . . . . . . . . . . . . III–3 Statements by accused . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d) . . . . . . . . . . . . III–5 Divorce or annulment, effect on marital privilege . . . . . . . Mil. R. Evid. 504(a) . . . . . . . . . . . . . III–24 Duplicate Admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1003 . . . . . . . . . . . . . . I II–51 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(e) . . . . . . . . . . . . III–51 Dying declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–48 Excited utterance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–46 Exclusionary rules; See also Privileges, this heading; Search and seizure; Self-incrimination. Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(b) . . . . . . . . . . . . III–17 Exclusion of, noncompliance with discovery requirements R.C.M. 701(g)(3)(C) . . . . . . . . . . . . . II–62 Existing mental, emotional, or physical condition . . . . . . . Mil. R. Evid. 803(3) . . . . . . . . . . . . III–46 Experts Appointment by court . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 706 . . . . . . . . . . . . . . . III–45 Bases of opinion by . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 703 . . . . . . . . . . . . . . . III–4 4 Disclosure of facts or data underlying opinion . . . . . . Mil. R. Evid. 705 . . . . . . . . . . . . . . . III–44 Employment at government expense . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–67 Opinion on ultimate issue . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 704 . . . . . . . . . . . . . . . III–44 Selection and employment by accused . . . . . . . . . . . . . Mil. R. Evid. 706(c) . . . . . . . . . . . . . III–45 Use, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702 . . . . . . . . . . . . . . . III–44 Extenuation and mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(1)(A); 1001(c)(1)(B) II–129 Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17 Facts, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2 Family records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(13) . . . . . . . . . . . III–47 Feasibility of precautionary measures, proof by subsequent remedial measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20 Foreign law, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202(b) . . . . . . . . . . . . III–2 Former testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Government information, privilege concerning . . . . . . . . . . . Mil. R. Evid. 506 . . . . . . . . . . . . . . . III–31 Habit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–20 Hearsay Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801 . . . . . . . . . . . . . . . III–45 General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 802 . . . . . . . . . . . . . . . III–45 Exceptions, availability of declarant immaterial Absence of entry in records . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(7) . . . . . . . . . . . . III–46 Absence of public record of entry . . . . . . . . . . . . . . Mil. R. Evid. 803(10) . . . . . . . . . . . III–47 Excited utterance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–46 Family records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(13) . . . . . . . . . . . III–47 Government price lists . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–47 Judgment as to personal, family, or general history, or boundaries . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(23) . . . . . . . . . . . III–48 Judgment of previous conviction . . . . . . . . . . . . . . . . Mil. R. Evid. 803(22) . . . . . . . . . . . III–47 Learned treatises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(18) . . . . . . . . . . . III–47 Market reports, commercial publications . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–47 Marriage, baptismal, and similar certificates . . . . . . Mil. R. Evid. 803(12) . . . . . . . . . . . III–47 Present sense impressions . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(1) . . . . . . . . . . . . III–45 Public records and reports . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–46 Recorded recollection . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(5) . . . . . . . . . . . . III–46 Records of documents affecting an interest in property . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(14) . . . . . . . . . . . III–47 Records of regularly conducted activity . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–46 Records of religious organizations . . . . . . . . . . . . . . . Mil. R. Evid. 803(11) . . . . . . . . . . . III–47 Records of vital statistics . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(9) . . . . . . . . . . . . III–47 Index 23 MCM, 2016INDEX
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Subject Ref. Page Reputation as to character . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(21) . . . . . . . . . . . III–47 Reputation concerning boundaries or general history Mil. R. Evid. 803(20) . . . . . . . . . . . III–47 Reputation concerning personal or family history . . Mil. R. Evid. 803(19) . . . . . . . . . . . III–47 Statements for purposes of medical diagnosis or treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(4) . . . . . . . . . . . . III–46 Statements in ancient documents . . . . . . . . . . . . . . . . Mil. R. Evid. 803(16) . . . . . . . . . . . III–47 Statements in documents affecting an interest in property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(15) . . . . . . . . . . . III–47 Then existing mental, emotional or physical condition Mil. R. Evid. 803(3) . . . . . . . . . . . . III–46 Exceptions, declarant unavailable Former testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Other exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(5) . . . . . . . . . . III–49 Statement against interest . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(3) . . . . . . . . . . III–48 Statement of personal or family history . . . . . . . . . . Mil. R. Evid. 804(b)(4) . . . . . . . . . . III–48 Statement under belief of impending death . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–48 Hearsay within hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 805 . . . . . . . . . . . . . . . III–49 History, statement of personal or family . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(4) . . . . . . . . . . III–48 Marital, privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24 Identification Evidence of other crimes, wrongs, or acts as proof of Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Eyewitness testimony as to . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17 Statements of, as non-hearsay . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–45 Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704 . . . . . . . . . . . . . . . . . . . . II–70 See also Self-incrimination. Impeachment By contradiction, using certain involuntary statements Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5 By contradiction, using illegally seized evidence . . . . Mil. R. Evid. 311(c)(1) . . . . . . . . . . III–9 Evidence of character, conduct, and bias . . . . . . . . . . . Mil. R. Evid. 608 . . . . . . . . . . . . . . . III–41 Evidence of criminal conviction . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–41 Juvenile adjudications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609(d) . . . . . . . . . . . . III–42 Prior statements of witnesses . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 613 . . . . . . . . . . . . . . . III–43 Religious beliefs or opinions . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 610 . . . . . . . . . . . . . . . III–42 Subsequent remedial measures . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20 Who may impeach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 607 . . . . . . . . . . . . . . . III–41 Informant, identity of, privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . I II–35 Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302; R.C.M. 916(k) . III–4; II–118 Intent, evidence of other crimes, wrongs, or acts, as proof of Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Interest, statement against . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(3) . . . . . . . . . . I II–48 Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–40 Interrogation. See Self-incrimination. Involuntary statement. See Self-incrimination. Joint clients, effect on lawyer-client privilege . . . . . . . . . . . Mil. R. Evid. 502(d)(5) . . . . . . . . . . III–24 Joint trial, statements of accused at . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8 Judgment As to personal, family, or general history, or boundaries Mil. R. Evid. 803(23) . . . . . . . . . . . III–48 Previous conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(22) . . . . . . . . . . . III–47 Judicial notice Adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . II I–2 Laws, domestic and foreign . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202 . . . . . . . . . . . . . . . III–2 Statements in learned treatises . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(18) . . . . . . . . . . . III–47 Juvenile adjudications, impeachment by . . . . . . . . . . . . . . . . Mil. R. Evid. 609(d) . . . . . . . . . . . . III–42 Knowledge Evidence of other crimes, wrongs, or acts as proof of Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Requirement for personal knowledge in order to testify Mil. R. Evid. 602 . . . . . . . . . . . . . . . III–40 Law, domestic, judicial notice of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202 . . . . . . . . . . . . . . . III–2 Law enforcement personnel, records and reports of observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8)(B) . . . . . . . . . . III–46 Lawyer-client privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23 Lawyer, defined for purposes of privilege . . . . . . . . . . . . . . Mil. R. Evid. 502(b)(2) . . . . . . . . . . III–23 Learned treatises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(18) . . . . . . . . . . . III–47 Liability insurance, admissibility . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 411 . . . . . . . . . . . . . . . II I–21 Limited admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2 Lineups and other identification processes Right to counsel at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(2) . . . . . . . . . . III–17 Index 24 MCM, 2016 INDEX
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Subject Ref. Page When unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c) . . . . . . . . . . . . . II I–17 Market reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–47 Marriage certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(12) . . . . . . . . . . . III–47 Medical diagnosis or treatment, statement for purposes of Mil. R. Evid. 803(4) . . . . . . . . . . . . III–46 Members As witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 Hearings out of presence of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(e); 104(c) . . . . . . III–1; III–2 Mental examination of accused, privilege concerning. See Self-incrimination. Military judge As witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–41 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(c) . . . . . . . . . . . . . III–1 Military records, authentication by attesting certificates . . . Mil. R. Evid. 902(4)(A) . . . . . . . . . . III–50 Minister, privileged communication to . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Misconduct, acts of, admissibility . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Mistake, admissibility of evidence of other crimes, wrongs, or acts to prove absence of . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Mistrial, as remedy for Failing to produce a writing used to refresh memory Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–43 Sustaining a claim of governmental privilege . . . . . . . Mil. R. Evid. 505(j)(4)(A)(ii) . . . . . III–29 Motive, evidence of other crimes, wrongs, or acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . II I–19 Negligence, proof of subsequent remedial measures . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20 Negotiations on plea, admissibility . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–2 0 Newly discovered, as grounds for new trial . . . . . . . . . . . . R.C.M. 1210(f) . . . . . . . . . . . . . . . . . II–188 Oath or affirmation Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–40 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 603 . . . . . . . . . . . . . . . III–40 Objections Confessions and admissions, concerning . . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–5 Eyewitness identification, concerning . . . . . . . . . . . . . . Mil. R. Evid. 321(a); 321(d) . . . . . . III–17; III–18 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103 . . . . . . . . . . . . . . . III–1 Member as a witness . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606(a) . . . . . . . . . . . . . III–41 Prior identification of the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d) . . . . . . . . . . . . III–18 Search and seizure, concerning . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(d) . . . . . . . . . . . III–52 Witnesses, calling by military judge or members . . . . Mil. R. Evid. 614(c) . . . . . . . . . . . . . III–44 Offer of proof Record of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(b) . . . . . . . . . . . . III–1 Requirements of valid . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(2) . . . . . . . . . . III–1 Ruling by military judge . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(d) . . . . . . . . . . . . III–1 Offer to compromise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 408 . . . . . . . . . . . . . . . III–20 Official records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–46 Opinion Bases of expert opinion . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 703 . . . . . . . . . . . . . . . III–44 Character, as method for proving . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(a) . . . . . . . . . . . . . III–20 Disclosure of facts or data underlying opinion . . . . . . Mil. R. Evid. 705 . . . . . . . . . . . . . . . III–44 Expert testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702 . . . . . . . . . . . . . . . II I–44 Lay witness testimony . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 701 . . . . . . . . . . . . . . . III–44 Rehabilitative potential of accused . . . . . . . . . . . . . . . . R.C.M. 1001(b)(5) . . . . . . . . . . . . . . . II–128 Sexual behavior of alleged victim . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(a) . . . . . . . . . . . . . III–21 Ultimate issue included in . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 704 . . . . . . . . . . . . . . . III–44 Opportunity, evidence of other crimes, wrongs, or acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Order of interrogation and presentation . . . . . . . . . . . . . . . . Mil. R. Evid. 611 . . . . . . . . . . . . . . . III–42 Original Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(d) . . . . . . . . . . . III–52 Requirement to use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–5 1 When original not required. See Contents of writings, recordings, and photographs, this heading. Other crimes, wrongs, or acts, evidence of . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Ownership, proof by subsequent remedial measures . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20 Pardon, effect on impeachment by conviction . . . . . . . . . . . Mil. R. Evid. 609(c) . . . . . . . . . . . . . III–42 Past sexual behavior Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(a); 412(b) . . . . . . III– 21 Index 25 MCM, 2016INDEX
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Subject Ref. Page Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(d) . . . . . . . . . . . . III–22 Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III –4 Evidence of similar sexual crimes . . . . . . . . . . . . . . . . Mil. R. Evid 413; 414 . . . . . . . . . . . III–22 Procedural requirements for admission . . . . . . . . . . . . . Mil. R. Evid. 412(c) . . . . . . . . . . . . . III–21 Payment of medical and similar expenses . . . . . . . . . . . . . . Mil. R. Evid. 409 . . . . . . . . . . . . . . . III–20 Personal knowledge, requirement for in order to testify . . Mil. R. Evid. 602 . . . . . . . . . . . . . . . III–40 Photographs, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(c) . . . . . . . . . . . . III–51 Plain error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(f) . . . . . . . . . . . . . III–1 Plan or design of accused, evidence of other crimes, wrongs, or acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Pleas, plea discussions and related statements, admissibility Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20 Political vote, privilege concerning . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III– 36 Prejudice, unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19 Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104 . . . . . . . . . . . . . . . III–1 Preparation, evidence of other crimes, wrongs, or acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Presentation on merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c) . . . . . . . . . . . . . . . . . . II–112 Present sense impression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(1) . . . . . . . . . . . . I II–45 Previous convictions Impeachment by evidence of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–41 Judgment or evidence of . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(22) . . . . . . . . . . . III–47 Priest, privileged communications to . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Prior statements of witnesses Impeachment by evidence of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 613 . . . . . . . . . . . . . . . III–43 Prior consistent statement as non-hearsay . . . . . . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–45 Prior inconsistent statement as non-hearsay . . . . . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–45 Prior statement of identification as non-hearsay . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–45 Privileges Applicability of rules concerning . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(b) . . . . . . . . . . . III–52 Classified information . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III– 25 Comments upon or inference from claim of, at trial Limiting instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 512(c) . . . . . . . . . . . . . III–37 Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 512(a) . . . . . . . . . . . . . I II–37 Communication of privileged information by electronic means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 511(b) . . . . . . . . . . . . II I–37 Communication to clergy . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Compelled or unintentional disclosure of information Mil. R. Evid. 511(a) . . . . . . . . . . . . . III–37 Deliberations of courts and juries . . . . . . . . . . . . . . . . . Mil. R. Evid. 509 . . . . . . . . . . . . . . . III–36 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 501 . . . . . . . . . . . . . . . III–23 Government information . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 506 . . . . . . . . . . . . . . . III–31 Marital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24 Identify of informant . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . III –35 Lawyer-client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23 Medical officer or civilian physician, no privilege . . . Mil. R. Evid. 501(d) . . . . . . . . . . . . III–23 Mental examination of accused. See Self-incrimination. Political vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–36 Preliminary determinations concerning . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1 Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–37 Waiver by voluntary disclosure . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 510 . . . . . . . . . . . . . . . III–36 Probable cause. See Search and seizure. Production of Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4); 906(b)(7) . . . . . . II–97; II–100 Procedure for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f)(4) . . . . . . . . . . . . . . . . II–69 Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–69 Property Records of documents affecting interest in . . . . . . . . . Mil. R. Evid. 803(14) . . . . . . . . . . . III–47 Statements in documents affecting interest in . . . . . . . Mil. R. Evid. 803(15) . . . . . . . . . . . III–47 Public records and reports . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III –46 Qualifications to be a witness, determination by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1 Rabbi, privileged communications to . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24 Reasonable doubt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–121 Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(d) . . . . . . . . . . . . . . . . . II–129 Index 26 MCM, 2016 INDEX
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Subject Ref. Page Recollection recorded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(5) . . . . . . . . . . . . III–46 Recordings, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(b); IV. Para. 45c III–51 ; IV–85 Refreshing memory, by use of writings . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–43 Regularly conducted activity, records of . . . . . . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–46 Relaxation of rules, in sentencing proceedings . . . . . . . . . . Mil. R. Evid. 1101(b) . . . . . . . . . . . III–52 Relevancy Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 401 . . . . . . . . . . . . . . . III–19 Effect on admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 402 . . . . . . . . . . . . . . . III–1 9 Exclusion of relevant evidence . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19 When conditioned on fact . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(b) . . . . . . . . . . . . III–2 Religious beliefs or opinions . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 610 . . . . . . . . . . . . . . . I II–42 Religious organizations, record of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(11) . . . . . . . . . . . III–47 Remainder of, or related, writings or recorded statements Mil. R. Evid. 106 . . . . . . . . . . . . . . . III–2 Reputation Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(21) . . . . . . . . . . . III–47 Community, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(d) . . . . . . . . . . . . III–20 Concerning boundaries or general history . . . . . . . . . . Mil. R. Evid. 803(20) . . . . . . . . . . . III–47 Concerning personal or family history . . . . . . . . . . . . . Mil. R. Evid. 803(19) . . . . . . . . . . . III–47 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(d) . . . . . . . . . . . . III–20 Routine practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–20 Rule of completeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 106 . . . . . . . . . . . . . . . III–2 Rules of Evidence, Military Amendments to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1102 . . . . . . . . . . . . . . III– 52 Analysis of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 22 . . . . . . . . . . . . . . . . . . . A22–1 Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(a); 1101(a) . . . . . III–1 ; III–52 Citation to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1103 . . . . . . . . . . . . . . III–53 Inapplicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(d) . . . . . . . . . . . I II–52 Purpose and construction . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 102 . . . . . . . . . . . . . . . III–1 Relaxation during sentencing proceedings . . . . . . . . . . Mil. R. Evid. 1101(c) . . . . . . . . . . . . III–52 Ruling admitting or excluding evidence Preserving a claim of error . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a) . . . . . . . . . . . . . III–1 Plain error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(f) . . . . . . . . . . . . . III–1 Search. See Search and seizure. Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–50 Self-incrimination. See Self-incrimination. Sentencing proceedings Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001 . . . . . . . . . . . . . . . . . . . II–127 Relaxation of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(b) . . . . . . . . . . . III–52 Sexual offenses Victim sexual behavior or predisposition . . . . . . . . . . . Mil. R. Evid. 412 . . . . . . . . . . . . . . . III–21 Evidence of similar sexual crimes . . . . . . . . . . . . . . . . Mil. R. Evid. 413; 414 . . . . . . . . . . III–22 Specific instances of conduct, to prove character . . . . . . . . Mil. R. Evid. 405(b) . . . . . . . . . . . . III–20 Spontaneous exclamations . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III –46 Stipulations Confessional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–72 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–90 Striking testimony After witness asserts self-incrimination privilege . . . . . Mil. R. Evid. 301(e)(1) . . . . . . . . . . III–3 Writing to refresh memory, failure to produce . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–43 Subscribing witness’ testimony, unnecessary for authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 903 . . . . . . . . . . . . . . . III–51 Subsequent remedial measures . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III– 20 Summary court-martial, applicability of rules . . . . . . . . . . . Mil. R. Evid. 101(a); R.C.M. 1304 . . . . . . . . . . . . . . . . . . . III–1; II–191 Telephonic transmissions of privileged information, effect of Mil. R. Evid. 511(b) . . . . . . . . . . . . III–37 Testimony Failure to testify by accused, instruction concerning . Mil. R. Evid. 301(f)(3) . . . . . . . . . . III–4 Preliminary matter, by accused . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(d) . . . . . . . . . . . . III–2 Trial counsel, duty to disclose . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a) . . . . . . . . . . . . . . . . . . I I–59 Unavailability of declarant, defined . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(a) . . . . . . . . . . . . . III–4 8 Victim, character of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(a)(2) . . . . . . . . . . III–19 Vital statistics, records of . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(9) . . . . . . . . . . . . III–47 Vote, political, privilege concerning . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–3 6 Waiver Index 27 MCM, 2016INDEX
p. 896
Subject Ref. Page Failure to object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(1) . . . . . . . . . . III–1 Guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(8); 311(e); 312(e); R.C.M. 910(j) . . . . . . . . . . . . III–6; III–10; III–11; II–109 Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 510 . . . . . . . . . . . . . . . III–36 Waste of time, as grounds for exclusion of relevant evidence Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19 Witnesses Advice concerning self-incrimination . . . . . . . . . . . . . . . Mil. R. Evid. 301 . . . . . . . . . . . . . . . III–3 Availability determination . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1 Calling and interrogation by the court-martial . . . . . . . Mil. R. Evid. 614 . . . . . . . . . . . . . . . III–43 Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; R.C.M. 914A; Mil. R. Evid. 611(d) . . . . . . . . . . . . II–82; II–114; III–42 Competency, general rule . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–40 Court members as witnesses . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 Exclusion from courtroom . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 615 . . . . . . . . . . . . . . . III–44 Impeachment of. See Impeachment, this heading. Military judge as a witness . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–41 Mode and order of interrogation and presentation . . . Mil. R. Evid. 611 . . . . . . . . . . . . . . . III–42 Oath or affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 603 . . . . . . . . . . . . . . . III –40 Personal knowledge, requirement for . . . . . . . . . . . . . . Mil. R. Evid. 602 . . . . . . . . . . . . . . . III–40 Production of Procedures for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e) . . . . . . . . . . . . . . . . . . II –67 Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b) . . . . . . . . . . . . . . . . . . II–65 Qualification as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . I II–1 Writings and recordings Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(a); 1001(b); IV. Para. 45c . . . . . . . . . . . . . . . . . . . III–51; III–51; IV–85 Refresh memory, to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III– 43 Remainder of or related writings . . . . . . . . . . . . . . . . . Mil. R. Evid. 106 . . . . . . . . . . . . . . . III–2 Requirement of original to prove . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–51 Examination Members Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(d) . . . . . . . . . . . . . . . . . . II–110 Questionnaire, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(a) . . . . . . . . . . . . . . . . . . II– 109 Record of trial before authentication . . . . . . . . . . . . . . . . . . R.C.M. 1103(i) . . . . . . . . . . . . . . . . . II–150 Polygraph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 707 . . . . . . . . . . . . . . . III–45 Witnesses Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1)(B); 702(g)(2)(D) . II–64; I I–65 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 614 . . . . . . . . . . . . . . . III–43 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i) . . . . . . . . . . . . . . . . . . I I–40 Remote live testimony of a child . . . . . . . . . . . . . . . . . R.C.M. 804; R.C.M. 914A; Mil. R. Evid. 611(d) . . . . . . . . . . . . II–82; II–114; III–42 Exceptions and substitutions Findings by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–120 Lesser included offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 3b(3) . . . . . . . . . . . . . . . . . IV–4 Plea, entry by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–106 Execution of sentence Action, statement as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(B) . . . . . . . . . . . . II–165 Deferment, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(6); 1101(c)(7) . . . . . II–1 45 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113 . . . . . . . . . . . . . . . . . . . II–175 Punishment which may be ordered executed in initial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(b) . . . . . . . . . . . . . . . . . II–175 Punishment which may not be ordered executed in initial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c) . . . . . . . . . . . . . . . . . II–175 Suspension. See Suspension of sentence. Exhibits Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c) . . . . . . . . . . . . . . . . . . II–112 Members, use during deliberations . . . . . . . . . . . . . . . . . . . . R.C.M. 921(b) . . . . . . . . . . . . . . . . . . II–12 3 Sealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103A . . . . . . . . . . . . . . . . . . II–151 Expert witnesses See also Evidence, Experts. Employment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–67 Opinion testimony by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702; 703; 704; 705 . III–44; III –45 Explosive, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(11) . . . . . . . . . . . . . . . . . II–1 Index 28 MCM, 2016 INDEX
p. 897
Subject Ref. Page Exporting controlled substances . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Exposure, indecent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 88 . . . . . . . . . . . . . . . . . . . . I V–136 Extenuation, matters in Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f)(2)(G); 405(i)(1) . . . . II–3 7; II–40 Presentencing procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 1 0 0 1 ( c ) ( 1 ) ( A ) ; 1 0 0 1(c)(2)(A); 1001(c)(3) . . . . . . . . . . . . . . . . . . . . . . II–129 Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 53 . . . . . . . . . . . . . . . . . . . . IV–100 Extra duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(v); 5b(2)(B)(v); V. Para. 5c(6); 6b(4) . . . . . . . . . . . . V–5; V–6; V–8 Extraordinary relief, petition for Appellate counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(b) . . . . . . . . . . . . . . . . . II–181 Reviewed by Court of Military Appeals . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(a) . . . . . . . . . . . . . . . . . II–184 Court of Military Review . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(b) . . . . . . . . . . . . . . . . . II–182 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(C) . . . . . . . . . . . . . II–75 Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17 Failure to Afford all practical relief and assistance in combat . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Enforce or comply with code . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32 Engage or do utmost to encounter enemy . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Enter plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–106 Fulfill terms of pretrial agreement . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(4) . . . . . . . . . . . . . . . . II–7 3 Maintain funds, dishonorable . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 68 . . . . . . . . . . . . . . . . . . . . IV–121 Obey orders or regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Pay debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 71 . . . . . . . . . . . . . . . . . . . . IV–126 Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–13 Report, prevent, or suppress mutiny . . . . . . . . . . . . . . . . . . . IV. Para. 18 . . . . . . . . . . . . . . . . . . . . IV –26 Secure or report captured or abandoned property . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39 False Alarm, before enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Discharge certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Identification card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Official statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–45 Pass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Pretenses Larceny by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46c(1)(a) . . . . . . . . . . . . . . IV–87 Obtaining services under . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 78 . . . . . . . . . . . . . . . . . . . . I V–131 Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 See also Fraud, against United States. Statement, during guilty plea inquiry . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–107 Statements in support of probable cause . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(4)(B) . . . . . . . III–9 Swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 79 . . . . . . . . . . . . . . . . . . . . IV–131 Writing See False official statement; Forgery; Fraud against United States. Federal courts Former trial in, effect of Final determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . I I–98 Former jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(C) . . . . . . . . . . . . . II– 103 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10 Members of bar, counsel in courts-martial . . . . . . . . . R.C.M. 502(d)(3)(A) . . . . . . . . . . . . . II–46 Rules of evidence in, application to courts-martial . . Mil. R. Evid. 101(b) . . . . . . . . . . . . III–1 Federal Rules of Evidence, amendments . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–52 Finality of courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–187 Financial inability, as a defense . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–118 Findings Action by members after reaching . . . . . . . . . . . . . . . . . . . . R.C.M. 921(d) . . . . . . . . . . . . . . . . . . II–124 Announcement of Effect on reconsideration . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924(a) . . . . . . . . . . . . . . . . . . II–12 5 Erroneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(d) . . . . . . . . . . . . . . . . . . II–125 Examination of worksheets by military judge, effect on R.C.M. 921(d) . . . . . . . . . . . . . . . . . . II–124 Forms of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 10 . . . . . . . . . . . . . . . . . . . A10–1 Index 29 MCM, 2016INDEX
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Subject Ref. Page Guilty plea, based on . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g) . . . . . . . . . . . . . . . . . . II– 108 Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(b) . . . . . . . . . . . . . . . . . . II–125 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(c) . . . . . . . . . . . . . . . . . . II–125 Basis for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–121 Charge, as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(2) . . . . . . . . . . . . . . . . II–120 Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–88 Convening authority, action on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c); 1107(f)(3) . . . . . . . II–161; II– 165 Deliberations and voting on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921 . . . . . . . . . . . . . . . . . . . . II–123 Exceptions and substitutions . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(1) . . . . . . . . . . . . . . . . II–120 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–120 Guilty Convening authority, action on . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c); 1107(f)(3) . . . . . . . II–161; II–165 Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924(a); 924(c) . . . . . . . . . . . II– 125; II–126 Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–121 Vote resulting in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(2) . . . . . . . . . . . . . . . . II–123 Guilty plea, based on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g) . . . . . . . . . . . . . . . . . . II–108 Impeachment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 923 . . . . . . . . . . . . . . . . . . . . II–125 Instructions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920 . . . . . . . . . . . . . . . . . . . . II–122 Lesser included offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–120 Not guilty Convening authority, action on . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(4) . . . . . . . . . . . . . . . II–160 Motion for finding of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 917 . . . . . . . . . . . . . . . . . . . . II –119 Reconsideration of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924(b) . . . . . . . . . . . . . . . . . . II–125 Vote resulting in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(3) . . . . . . . . . . . . . . . . II–124 Not guilty, lack of mental responsibility . . . . . . . . . . . . . . . R.C.M. 921(c)(4) . . . . . . . . . . . . . . . . II–124 Post-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–147 Reasonable doubt standard . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–121 Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924 . . . . . . . . . . . . . . . . . . . . II–125 Special findings. See Special findings. Specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(1) . . . . . . . . . . . . . . . . II–120 Voting on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c) . . . . . . . . . . . . . . . . . . II–123 Fine Contempt, punishment for . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(a); 809(e) . . . . . . . . . . . II–88; II–89 Courts-martial, punishment in . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(3) . . . . . . . . . . . . . . . II– 132 Fingerprints Authentication by comparison . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(b)(3) . . . . . . . . . . III–49 Fingerprint cards admissible as hearsay exception . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Firearm Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(12) . . . . . . . . . . . . . . . . . II–1 Discharge Negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 80 . . . . . . . . . . . . . . . . . . . . IV–132 Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 81 . . . . . . . . . . . . . . . . . . . . IV–132 Maximum punishment, affecting Aggravated assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54e(8)(a); 54e(9)(a) . . . . . IV–104 Larceny, wrongful appropriation . . . . . . . . . . . . . . . . . . IV. Para. 46e(1)(c); 46e(1)(d); 46e(2)(c) . . . . . . . . . . . . . . . . . . . . . . . IV–91 Military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32e(1)(b); 32e(3)(b) . . . . . IV–47 Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 47e(1) . . . . . . . . . . . . . . . . IV–92 Fitness reports, members, military judge, counsel . . . . . . . . . . . R.C.M. 104(b) . . . . . . . . . . . . . . . . . . II–5 Flag, striking the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36 Fleeing scene of accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 82 . . . . . . . . . . . . . . . . . . . . IV–132 Forcing a safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 26 . . . . . . . . . . . . . . . . . . . . IV–38 Foreign law Judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202(b) . . . . . . . . . . . . III–2 Occupied territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(B)(i)(b) . . . . . . . . . II–11 Foreign nation Interrogation by officials of . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(f)(2) . . . . . . . . . . III –8 Military jurisdiction, in friendly . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10 Military jurisdiction, in belligerent . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3); R.C.M. 201(f)(1)(B)(i)(b) . . . . . . . . . I–1; II–11 Search by officials of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b)(3) . . . . . . . . . . III–8 Foreign records, authentication of . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902(3) . . . . . . . . . . . . III–50 Forfeiture of pay and allowances General courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11 Index 30 MCM, 2016 INDEX
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Subject Ref. Page Nonjudicial punishment Reserve Component Personnel . . . . . . . . . . . . . . . . . . . . V. Para. 5e . . . . . . . . . . . . . . . . . . . . V–6 Enlisted member, imposed upon . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(iii); 5b(2)(B)(iii) . V–5 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(8) . . . . . . . . . . . . . . . . . . V–6 Officer, imposed upon . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(1)(B)(ii) . . . . . . . . . . . . . V–4 Sentence to Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(b) . . . . . . . . . . . . . . . . . II–175 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(2) . . . . . . . . . . . . . . . II–132 Forgery Fraud against United States, in connection with . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 48 . . . . . . . . . . . . . . . . . . . . IV–92 Former jeopardy Mistrial, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(c) . . . . . . . . . . . . . . . . . . II–115 Motion to dismiss for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(C) . . . . . . . . . . . . . II–103 Nonjudicial punishment as . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(1); 1f(5) . . . . . . . . . . . . . V –1; V–2 Withdrawal of charges, effect of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(b) . . . . . . . . . . . . . . . . . . II –58 Former punishment Bar to trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–103 Effect of nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(1); 1f(5) . . . . . . . . . . . . . V–1; V–2 Former testimony, admissibility of Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Forwarding charges, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(a) . . . . . . . . . . . . . . . . . . II–32 See also Charges and specifications. Fraternization, as offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 83 . . . . . . . . . . . . . . . . . . . . IV– 133 Fraud See also Check; Forgery; Larceny. Against United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Fraudulent enlistment, appointment, or separation . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–9 Frisk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(2) . . . . . . . . . . III–13 Gambling with subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 84 . . . . . . . . . . . . . . . . . . . . IV–134 General article (Art. 134, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60 . . . . . . . . . . . . . . . . . . . . IV–113 General court-martial See also specific topics. Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(1) . . . . . . . . . . . . . . . . II–45 Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 407; 504(b)(1) . . . . . . . . . . . I I–45; II–51 See also Convening authority. Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–46 Jurisdiction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1) . . . . . . . . . . . . . . . . II–11 Prerequisites Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(a) . . . . . . . . . . . . . . . . . . I I–35 Staff judge advocate advice . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(a) . . . . . . . . . . . . . . . . . . II–43 Procedural guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 8 . . . . . . . . . . . . . . . . . . . . A8–1 Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b) . . . . . . . . . . . . . . . . . II–147 Referral of charges to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e) . . . . . . . . . . . . . . . . . . II–55 General order, failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Government Appeal by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908 . . . . . . . . . . . . . . . . . . . . II–104 Fraud against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Government information privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 506 . . . . . . . . . . . . . . . III–31 Government officials, contempt toward . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–17 Graft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 66 . . . . . . . . . . . . . . . . . . . . IV–120 Grievous bodily harm, defined . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54c(4)(a)(iii) . . . . . . . . . . . IV–103 Guard See also Sentinel or lookout. Abandoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10b(4) . . . . . . . . . . . . . . . . IV–14 Leaving place of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–56 Report, as hearsay exception . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–4 6 Guide for general and special courts-martial . . . . . . . . . . . . . Appendix 8 . . . . . . . . . . . . . . . . . . . . A8–1 Guilty Findings. See Findings. Pleas. See Pleas. Habit, evidence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–20 Handwriting, authentication of . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(b)(2); 901(b)(3) . III–49 Hard labor without confinement Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(b) . . . . . . . . . . . . . . . . . II–175 Index 31 MCM, 2016INDEX
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Subject Ref. Page General court-martial, power to adjudge . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11 Sentence of court-martial . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–133 Special court-martial, power to adjudge . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12 Summary court-martial, power to adjudge . . . . . . . . . . R.C.M. 1301(d)(1) . . . . . . . . . . . . . . . II–190 Hazarding a vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 34 . . . . . . . . . . . . . . . . . . . . IV– 49 Hazardous duty, absence with intent to avoid . . . . . . . . . . . . IV. Para. 9b(2) . . . . . . . . . . . . . . . . . IV–11 Hearsay. See Evidence, Hearsay. Heroin, offenses involving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Homicide Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–117 Dying declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–48 Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–62 Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–60 Negligent homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 85 . . . . . . . . . . . . . . . . . . . . IV–134 Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–116 Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV –62 Housebreaking Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 56 . . . . . . . . . . . . . . . . . . . . IV–106 Identification card, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Identification of accused Acts preceding or following offense . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 By witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17 Ignorance of fact, as defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–118 Ignorance of law, as defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–119 Illness Feigning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–58 Good cause for excusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(f) . . . . . . . . . . . . . . . . . . II–53 Immunity Attorney General of United States, authorized by . . . . . . . R.C.M. 704(c)(1) . . . . . . . . . . . . . . . . II–70 Authority to grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(c) . . . . . . . . . . . . . . . . . . II–70 Contents of grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(d) . . . . . . . . . . . . . . . . . . II–71 Defense witness, request for . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(e) . . . . . . . . . . . . . . . . . . II–71 Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f); R.C.M. 704 . . . . . . . . . . . . . . . . . . . . III–4; II–70 General court-martial convening authority . . . . . . . . . . . . . . R.C.M. 704(c) . . . . . . . . . . . . . . . . . . II–70 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704 . . . . . . . . . . . . . . . . . . . . II–70 Military judge review of decision whether to grant . . . . . . R.C.M. 704(e) . . . . . . . . . . . . . . . . . . II–71 Motion to dismiss based on grant of, to accused . . . . . . . R.C.M. 907(b)(2)(D)(ii) . . . . . . . . . . II–103 Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d)(2) . . . . . . . . . . III– 3 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(d) . . . . . . . . . . . . . . . . . . II–71 Self-incrimination, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d) . . . . . . . . . . . . II I–3 Types of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(a) . . . . . . . . . . . . . . . . . . II–70 Impeachment See also Evidence, Impeachment. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 923 . . . . . . . . . . . . . . . . . . . . II–125 Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1008 . . . . . . . . . . . . . . . . . . . II–142 Impersonating a commissioned officer, warrant officer, noncommissioned officer, government agent or official . . . IV. Para. 86 . . . . . . . . . . . . . . . . . . . . IV–135 Importing controlled substances . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Inability, as defense Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–118 To authorized absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10c(6) . . . . . . . . . . . . . . . . IV–15 Incapacitation for duty through drunkenness . . . . . . . . . . . . . IV. Para. 76 . . . . . . . . . . . . . . . . . . . . IV–129 Included offenses. See Lesser included offenses. Incrimination. See Self-incrimination. Indecent Acts with a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–136 Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 63 . . . . . . . . . . . . . . . . . . . . IV–118 Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45c . . . . . . . . . . . . . . . . . . . IV–85 Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 89 . . . . . . . . . . . . . . . . . . . . IV–136 Liberties with a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–136 Indecent conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 90 . . . . . . . . . . . . . . . . . . . . IV–136 Individual counsel, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b) . . . . . . . . . . . . . . . . . . II–53 Index 32 MCM, 2016 INDEX
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Subject Ref. Page See also Counsel; Defense counsel. Influence Command, unlawful As offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–5 Impeachment of sentence . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1008 . . . . . . . . . . . . . . . . . . . II–142 Inquiry of members as to . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606(b) . . . . . . . . . . . . III–41 Outside, on members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 923; 1008; Mil. R. Evid. 606(b) . . . . . . . . . . . . II–125; III–52; III–41 Informant, identify of, privilege concerning . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . II–1 Injury Grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54c(4)(a)(iii) . . . . . . . . . . . IV–103 Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 50 . . . . . . . . . . . . . . . . . . . . IV–97 Self-inflicted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–58 Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV Para. 44a . . . . . . . . . . . . . . . . . . . IV– 62 Innocence, presumption of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5)(A) . . . . . . . . . . . . . II–123 Inquiry, court of. See Court of inquiry. Inquiry, preliminary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19 Insanity. See Mental capacity; Mental responsibility. Inspect, defined for discovery purposes . . . . . . . . . . . . . . . . . . . . R.C.M. 701(h) . . . . . . . . . . . . . . . . . . II–62 Inspections See also Search and seizure. By court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–113 Health and welfare, evidence discovered in . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–11 Inspector general, privileged communications . . . . . . . . . . . . . . Mil. R. Evid. 506(d) . . . . . . . . . . . . III–31 Instruction, extra military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1g . . . . . . . . . . . . . . . . . . . . V–2 Instruction on military justice . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 137, UCMJ; R.C.M. 104(a)(3)(A) . . . . . . . . . . . . . A2–38; II–5 Instructions Deposition, authority who gives . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(3) . . . . . . . . . . . . . . . . II–6 3 In courts-martial, by military judge Accomplice testimony, joint or common trial . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8 Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–88 Evidence, limited purpose . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2 Expert testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702 . . . . . . . . . . . . . . . II I–44 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920 . . . . . . . . . . . . . . . . . . . . II–122 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(5) . . . . . . . . . . . . . . . . II–78 Preliminary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(a) . . . . . . . . . . . . . . . . . . II–112 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1005 . . . . . . . . . . . . . . . . . . . II–139 Preliminary hearing, procedural instruction . . . . . . . . . . . . . R.C.M. 405(i)(1) . . . . . . . . . . . . . . . . II–40 Referral, convening authority . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(1) . . . . . . . . . . . . . . . . II–55 Insubordination. See Contempt; Disobedience of orders; Disrespect. Intelligence, giving to the enemy . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–40 Intent See also specific offenses. Evidence of Acts preceding or following offense . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Statements of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(3) . . . . . . . . . . . . II I–46 To distribute controlled substances . . . . . . . . . . . . . . . . . . . . IV. Para. 37c(6) . . . . . . . . . . . . . . . . IV–5 5 Interlocutory questions Appeal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908 . . . . . . . . . . . . . . . . . . . . II–104 Evidence, right to production of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II –69 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e) . . . . . . . . . . . . . . . . . . II–79 Rulings on By military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(1) . . . . . . . . . . . . . . . . II –79 By president of special court-martial without military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(2); 801(e)(3) . . . . . . . II– 80 Confessions and admissions . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(5) . . . . . . . . . . III–6 Evidence of pretrial identification of accused . . . . . . . Mil. R. Evid. 321(d)(7) . . . . . . . . . . III–18 Evidence seized from accused . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(7) . . . . . . . . . . III–10 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4); 801(e)(1) . . . . . . . I I–78; II–79 Standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(4) . . . . . . . . . . . . . . . . II–80 Witnesses, right to, for determining . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(1) . . . . . . . . . . . . . . . . II–65 Index 33 MCM, 2016INDEX
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Subject Ref. Page International law, judicial notice of . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202(b) . . . . . . . . . . . . III–2 Interpreter At preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(4)(B) . . . . . . . . . . . . . II–37 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2) . . . . . . . . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3) . . . . . . . . . . . . . . . . II–49 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b); 901(c) . . . . . . . . . . . II–87; II–93 Payment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(4) . . . . . . . . . . . . . . . . II–49 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Testimony given through . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . I II–40 Interrogation. See Self-incrimination. Interrogatories. See Deposition. Intoxication See also Drunkenness. Intent, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(2) . . . . . . . . . . . . . . . . II–119 Murder, effect on intent in . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43c(2)(c); 43c(3)(c) . . . . . IV–61; I V–62 Not defense, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(2) . . . . . . . . . . . . . . . . II–119 Introduction of controlled substance . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(c) . . . . . . . . . . . . . III–12 Investigator. See Law enforcement official. Involuntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–62 Jeopardy. See Former jeopardy. Joint, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(13) . . . . . . . . . . . . . . . . . II–2 Joint command or task force, jurisdiction . . . . . . . . . . . . . . . . R.C.M. 201(e)(2) . . . . . . . . . . . . . . . . II–10 Joint offenses. See Accomplices; Conspiracy; Principals. Joint Service Committee on Military Justice . . . . . . . . . . . . . Appendix 26 . . . . . . . . . . . . . . . . . . . A26–1 Joint trial Counsel representing more than one accused, inquiry required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4)(D) . . . . . . . . . . . . . II–94 Evidence of statement of accused . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105; 306 . . . . . . . . . . III–2; III– 8 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 812 . . . . . . . . . . . . . . . . . . . . II–91 Referrals to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(3) . . . . . . . . . . . . . . . . II–56 Rights of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 812 . . . . . . . . . . . . . . . . . . . . II–91 Sever, motion to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(9) . . . . . . . . . . . . . . . . II–100 Joy riding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–87 Judge. See Military judge. Judge advocate Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(13), UCMJ; R.C.M. 103 . . . A2–1; II–1 Oaths, authority to administer . . . . . . . . . . . . . . . . . . . . . . . . Art. 136(a)(1), UCMJ . . . . . . . . . . . . A2–38 Review of record of trial by . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112 . . . . . . . . . . . . . . . . . . . II–174 Judge Advocate General, The Cases examined by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1201(b)(1) . . . . . . . . . . . . . . . II–180 Cases forwarded to Court of Criminal Appeals . . . . . . . . . R.C.M. 1201(a) . . . . . . . . . . . . . . . . . II–180 Cases reviewed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1201(b)(2); 1201(b)(3) . . . . II–18 0 Certification of military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(c) . . . . . . . . . . . . . . . . . . II–46 Detailing military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b)(1) . . . . . . . . . . . . . . . . II–50 Professional supervisor of military judge, counsel . . . . . . . R.C.M. 104(a)(3)(C); 109 . . . . . . . . . II–5; II–6 Remission and suspension of sentence . . . . . . . . . . . . . . . . . R.C.M. 1201(c) . . . . . . . . . . . . . . . . . II–181 Review of summary courts-martial . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(d) . . . . . . . . . . . . . . . . . II–195 Rules of court, authority to make . . . . . . . . . . . . . . . . . . . . . R.C.M. 108 . . . . . . . . . . . . . . . . . . . . II –6 Waiver of review, by accused . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II –172 Judgments of courts-martial, finality of . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–187 See also Findings; Sentence. Judicial notice Adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2 Of law, foreign and domestic . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202(b) . . . . . . . . . . . . III–2 Jumping from vessel into water . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 91 . . . . . . . . . . . . . . . . . . . . IV–137 Jurisdiction Commander’s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2a . . . . . . . . . . . . . . . . . . . . V–2 Courts-martial Accused from armed force different from convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e) . . . . . . . . . . . . . . . . . . II–10 Attachment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(c) . . . . . . . . . . . . . . . . . . II–15 Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13 Index 34 MCM, 2016 INDEX
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Subject Ref. Page Composition, affecting . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(2) . . . . . . . . . . . . . . . . II– 9 Constructive enlistment . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(c), UCMJ; R.C.M. 202(a) . . A2–2; II–13 Contempt power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(c) . . . . . . . . . . . . . . . . . . II–9 Convening, as affecting . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(1) . . . . . . . . . . . . . . . . II–9 Discharge, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a); 202(c) . . . . . . . . . . . II–13; I I–15 Dismissal of charges for lack of . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1) . . . . . . . . . . . . . . . . II–102 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2 . . . . . . . . . . . . . . . . . . . . . . I–1 Joint command . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e)(2) . . . . . . . . . . . . . . . . II–10 Law of war, offense under . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3); 201(f)(1)(B) . . . . II–9; II–11 Military offense, exclusive jurisdiction . . . . . . . . . . . . . R.C.M. 201(d)(1) . . . . . . . . . . . . . . . . II–10 Motion to dismiss for lack of Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B) . . . . . . . . . . . . . II–97 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1) . . . . . . . . . . . . . . . . II–102 Not waived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b); 905(e); 907(b)(1) . . II–97; II–98; II–102 Nature of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a) . . . . . . . . . . . . . . . . . . II–9 Offenses subject to Civilian tribunals, trial in . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15 Service connection of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15 Persons subject to Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13 Law of war, under . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(b) . . . . . . . . . . . . . . . . . . II–15 Reservists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 204 . . . . . . . . . . . . . . . . . . . . II–15 Place of offense, effect on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(2) . . . . . . . . . . . . . . . . II–9 Place of trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3) . . . . . . . . . . . . . . . . II–9 Reciprocal, between service . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e) . . . . . . . . . . . . . . . . . . II–10 Referral, as affecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(3) . . . . . . . . . . . . . . . . I I–9 Requisites of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b) . . . . . . . . . . . . . . . . . . II–9 Review of, accused in different armed force . . . . . . . R.C.M. 201(e)(5) . . . . . . . . . . . . . . . . II–11 Subject matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15 Courts of inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(g); I. Para. 2(b)(3) . . . . I I–13; I–1 Exercise of military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2 . . . . . . . . . . . . . . . . . . . . . . I–1 Foreign nation over visiting force . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II –10 General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1) . . . . . . . . . . . . . . . . II–11 Kinds of military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a) . . . . . . . . . . . . . . . . . . . . I–1 Memorandum of understanding concerning . . . . . . . . . . . . . Appendix 3 . . . . . . . . . . . . . . . . . . . . A3–1 Military commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1 Not waivable by Failure to raise at trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . I I–98 Pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(1)(B) . . . . . . . . . . . . . II–7 2 Provost courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 1 . . . . . . . . . . . . . . . . . . . . . . I–1 Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2) . . . . . . . . . . . . . . . . II–12 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Jury. See Members of a court-martial. Justification, as a defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(c) . . . . . . . . . . . . . . . . . . II–1 16 Juvenile courts, conviction by, admissibility . . . . . . . . . . . . . . . Mil. R. Evid. 609(d) . . . . . . . . . . . . III–42 Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 92 . . . . . . . . . . . . . . . . . . . . IV–137 Killing. See Homicide; Manslaughter; Murder. Laboratory reports, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Language, Indecent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 89 . . . . . . . . . . . . . . . . . . . . IV– 136 Larceny Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–87 Of mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–138 Law, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202 . . . . . . . . . . . . . . . III–2 Law enforcement official Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Civilian, authority to apprehend persons subject to code . R.C.M. 302(a)(2); 302(b)(3) . . . . . . . II–17; II–18 Interrogations by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305 . . . . . . . . . . . . . . . III–6 Military, authority to apprehend . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(1) . . . . . . . . . . . . . . . . II– 17 Searches by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b) . . . . . . . . . . . . III–8 Law of war Courts-martial, cases under . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3); 201(f)(1)(B) . . . . II–9; II –11 Exercise of jurisdiction under . . . . . . . . . . . . . . . . . . . . . . . . I. 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Subject Ref. Page Lawyer. See Counsel; Defense counsel; Trial counsel. Lawyer-client privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23 Leading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(c) . . . . . . . . . . . . . III–42 Legal officer See also Staff judge advocate. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(12), UCMJ; R.C.M. 103 . . . A2–1; II–1 Disqualified As member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(G) . . . . . . . . . . . . . I I–110 As military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(2) . . . . . . . . . . . . . . . . II –94 Post-trial recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–157 Lesser included offense Findings as to Convening authority action approving . . . . . . . . . . . . . . R.C.M. 1107(c) . . . . . . . . . . . . . . . . . II–161 Exceptions and substitutions, by . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(1) . . . . . . . . . . . . . . . . II–120 Guilty plea, on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g)(2) . . . . . . . . . . . . . . . . II–108 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 3 . . . . . . . . . . . . . . . . . . . . . IV–3 Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(2) . . . . . . . . . . . . . . . . II–122 Motions for finding of not guilty, on . . . . . . . . . . . . . . . . . R.C.M. 917(e) . . . . . . . . . . . . . . . . . . II–120 Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–106 Specific offenses, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 12A . . . . . . . . . . . . . . . . . . A12A–1 Voting on, by members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(5) . . . . . . . . . . . . . . . . II–124 Letter of reprimand. See Reprimand. Letters, authentication, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–4 9; III–50 Liberties, indecent, with child . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–136 Liberties, conditions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(1) . . . . . . . . . . . . . . . . II–19 See also Restraint, pretrial. Lineup, identification at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17 Liquor. See Drunk. Logs, as records, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Loitering on post by sentinel or lookout . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–147 Lookout Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Misbehavior as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–56 Offenses by or against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–147 Looting and pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39 Losing military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Loss Notes of recordings of proceedings, of . . . . . . . . . . . . . . . . R.C.M. 1103(f) . . . . . . . . . . . . . . . . . II–149 Records of trial, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(c) . . . . . . . . . . . . . . . . . II–154 Lost property, subject to larceny . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46c(1)(i)(i) . . . . . . . . . . . . . IV–90 Magistrate, power to authorize search . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–15 Mail Obscene matters, depositing in . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 94 . . . . . . . . . . . . . . . . . . . . IV–139 Taking, opening, secreting, destroying, or stealing . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–138 Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 50 . . . . . . . . . . . . . . . . . . . . IV–97 Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV –62 Making false claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV– 109 Malingering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–58 Maltreatment of person subject to orders . . . . . . . . . . . . . . . . IV. Para. 17 . . . . . . . . . . . . . . . . . . . . IV–26 Manslaughter See also Homicide; Murder. Assault with intent to commit voluntary . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–62 Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV –62 Manual for Courts-Martial Structure and application . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 4 . . . . . . . . . . . . . . . . . . . . . . I–1 Use of, by court members . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(2) . . . . . . . . . . . . . . . . I I–45 Manufacturing controlled substances . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Marijuana, offenses involving . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV– 53 Martial law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(2) . . . . . . . . . . . . . . . . . I–1 Marital privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . II I–24 Marital, privileged communication . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24 Mast. See Nonjudicial punishment. Members of a court-martial Index 36 MCM, 2016 INDEX
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Subject Ref. Page Absence Announcement concerning . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(5) . . . . . . . . . . . . . . . . II–92 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b); 901(e) . . . . . . . . . . . II–84; II–94 Active duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a) . . . . . . . . . . . . . . . . . . II–45 Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(4) . . . . . . . . . . . . . . . . II–92 Armed force or command different from convening authority R.C.M. 503(a)(3) . . . . . . . . . . . . . . . . II–50 Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912 . . . . . . . . . . . . . . . . . . . . II–109 Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c) . . . . . . . . . . . . . . . . . . II–52 Contempt, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–88 Counsel, disqualified to act as . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(D) . . . . . . . . . . . . . II–47 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(14) . . . . . . . . . . . . . . . . . II–2 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a) . . . . . . . . . . . . . . . . . . II–49 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f) . . . . . . . . . . . . . . . . . . II–110 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(2) . . . . . . . . . . . . . . . . II–45 Enlisted Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–84 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a)(2) . . . . . . . . . . . . . . . . II–49 Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–95 Evaluation of, limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(b)(1) . . . . . . . . . . . . . . . . II–5 Evidence, request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(1)(F) . . . . . . . . . . . . . II–112 Examination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(d) . . . . . . . . . . . . . . . . . . II–110 Excusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c); 912(f)(3); 912(g)(1 ) II–52; II–111 General court-martial, number required . . . . . . . . . . . . . . . . R.C.M. 501(a)(1) . . . . . . . . . . . . . . . . II–45 Influence, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–5 Manual for Courts-Martial, use of . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(2) . . . . . . . . . . . . . . . . II–45 New members, procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(d)(1) . . . . . . . . . . . . . . . . I I–84 New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(1) . . . . . . . . . . . . . . . . II–89 Notes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(b) . . . . . . . . . . . . . . . . . . II–123 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–87 Objections to rulings by president . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(3) . . . . . . . . . . . . . . . . II–80 Other trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(1) . . . . . . . . . . . . . . . . II–89 Presence at court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b); 901(e); 921(a); . . . . II–84; II–94; II–123 1006(a) . . . . . . . . . . . . . . . . . . . . . . II–1 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b) . . . . . . . . . . . . . . . . . . II–46 See also President of court-martial. Pretrial agreement, not informed of . . . . . . . . . . . . . . . . . . . R.C.M. 705(e) . . . . . . . . . . . . . . . . . . II–73 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–45 Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(1) . . . . . . . . . . . . . . . . II–89 Selection, challenge of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(b) . . . . . . . . . . . . . . . . . . II–109 Sessions without . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–82 Special court-martial, number required . . . . . . . . . . . . . . . . . R.C.M. 501(a)(2); 805(b) . . . . . . . . . II–45; II–84 Waiver of, by accused Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–95 Pretrial agreement, in . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–73 Witness, incompetent as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 Mental capacity Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909 . . . . . . . . . . . . . . . . . . . . II–105 Inquiry into . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–74 Lack of, effect on Action of convening authority . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(5) . . . . . . . . . . . . . . . II–161 Appellate review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(c) . . . . . . . . . . . . . . . . . I I–182 Death sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(e)(1)(B) . . . . . . . . . . . . II– 176 Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–76 Motions relating to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II–102 Post-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–147 Presumption of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909(b) . . . . . . . . . . . . . . . . . . II–105 Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909(c) . . . . . . . . . . . . . . . . . . II–105 Mental disease or defect. See Mental responsibility. Mental examination Discovery of By defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B); Mil. R. Evid. 513 . . . . . . . . . . . . . . . II–59; III–37 By prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B); Mil. R. Evid. 513 . . . . . . . . . . . . . . . II–59; III–37 Index 37 MCM, 2016INDEX
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Subject Ref. Page Of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–74 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–76 Mental responsibility Discovery of defense of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Disease or defect, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(1) . . . . . . . . . . . . . . . . II–118 Failure to disclose intent to raise . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II –62 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 50a, UCMJ; R.C.M. 916(k) . . . A2–16; II–118 Inquiry into . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–74 Motions relating to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II–102 Notice of defense involving . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–60 Partial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(2) . . . . . . . . . . . . . . . . II–118 Post-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–147 Presumption of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(3)(A) . . . . . . . . . . . . . II–118 Withdrawn, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–61 Midshipman Conduct unbecoming and officer and gentleman . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–112 Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(2), UCMJ; R.C.M. 202(a) A2–1; II–13 Summary courts-martial, not subject to trial by . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Military commission Aiding the enemy, trial by . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–40 Concurrent jurisdiction, other military tribunals . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–13 Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 48, UCMJ . . . . . . . . . . . . . . . . . A2–15 Exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1 Spying, trial by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43 Military government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1 Military judge Absence of, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–84 Accused, advice to concerning Appellate rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1010 . . . . . . . . . . . . . . . . . . . II–143 Counsel rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–93 Alone, trial by Capital case, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(C); 903(a)(2) . . . . II–12; II–95 Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–95 Waiver of right to Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903(e) . . . . . . . . . . . . . . . . . . II–96 Pretrial agreement, in . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–73 Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(3); 901(b) . . . . . . . . . II–92; II–93 Armed force different from accused or convening authority R.C.M. 201(e)(4) . . . . . . . . . . . . . . . . II–10 Assembly, announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 911 . . . . . . . . . . . . . . . . . . . . II–109 Authentication of record of trial . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(a)(2) . . . . . . . . . . . . . . . II– 153 Challenge of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–94 Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(e) . . . . . . . . . . . . . . . . . . II–53 Conferences, with parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802 . . . . . . . . . . . . . . . . . . . . II–81 Confinement, pretrial Authority to order release from . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22 Review of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(j) . . . . . . . . . . . . . . . . . . II–24 Contempt, authority to exercise . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(b)(2); 809(c) . . . . . . . . . II–79; I I–88 Control of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3); 804(b) . . . . . . . . . II– 78; II–82 Counsel Disqualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(3) . . . . . . . . . . . . . . . . II–93 Disqualified to act as . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(C) . . . . . . . . . . . . . II–47 Oath, administering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(5) . . . . . . . . . . . . . . . . II –94 Defense counsel, permission to withdraw . . . . . . . . . . . . . . R.C.M. 506(c) . . . . . . . . . . . . . . . . . . II–54 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(15) . . . . . . . . . . . . . . . . . II–2 Deposition Authority to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(b) . . . . . . . . . . . . . . . . . . II–62 Authority to prohibit . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(i) . . . . . . . . . . . . . . . . . . I I–65 Detail Failure to in special court-martial . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(ii)(b) . . . . . . . . . II–12 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b) . . . . . . . . . . . . . . . . . . II–50 Discovery, authority to regulate . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g) . . . . . . . . . . . . . . . . . . II–61 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–94 Docketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(1) . . . . . . . . . . . . . . . . II–78 Index 38 MCM, 2016 INDEX
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Subject Ref. Page Duties generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801 . . . . . . . . . . . . . . . . . . . . II–78 Evaluation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(b)(2) . . . . . . . . . . . . . . . . II–5 Guilty plea inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–107 Instruction. See Instructions. Interlocutory questions, rulings on . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4) . . . . . . . . . . . . . . . . II–7 8 Mistrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915 . . . . . . . . . . . . . . . . . . . . II–115 Motions. See Motions. New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(2) . . . . . . . . . . . . . . . . II–90 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–87 Other trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(2) . . . . . . . . . . . . . . . . II–90 Power to authorize search . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–1 5 Presence of, required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–84 Pretrial agreement inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f) . . . . . . . . . . . . . . . . . . II–107 Questions of law, ruling on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4) . . . . . . . . . . . . . . . . II–78 Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(2) . . . . . . . . . . . . . . . . II–90 Reopening case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(5) . . . . . . . . . . . . . . . . II–113 Restraint of accused at trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(d)(3) . . . . . . . . . . . . . . . . II–84 Review of pretrial confinements . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(j) . . . . . . . . . . . . . . . . . . II– 24 Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 108 . . . . . . . . . . . . . . . . . . . . II–6 Rulings by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(1) . . . . . . . . . . . . . . . . II–79 Session, call to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(a) . . . . . . . . . . . . . . . . . . II–93 Special court-martial without . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(ii) . . . . . . . . . . . II– 12 Stipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–90 Supervision of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6 Unavailability, effect on speedy trial . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–7 6 Views or inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–113 Witness Disqualified from acting as . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(3) . . . . . . . . . . . . . . . . II–94 Incompetent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–41 Military law Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(1) . . . . . . . . . . . . . . . . . I–1 Nature and purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 3 . . . . . . . . . . . . . . . . . . . . . . I–1 Military police. See Law enforcement official. Military property, sale, loss, damage, destruction, or wrongful disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Military records, authentication of . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–49; III–50 Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part III . . . . . . . . . . . . . . . . . . . . . . . . III–1 See also Evidence. Military tribunals Concurrent jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–13 Kinds of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b) . . . . . . . . . . . . . . . . . . . . I–1 Minor offenses Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1e . . . . . . . . . . . . . . . . . . . . V–1 Prior punishment for, barring trial . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–103 Minors, competence as witnesses . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–40 Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Misbehavior of sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–56 Misconduct Prisoner of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 29 . . . . . . . . . . . . . . . . . . . . IV–42 Uncharged Action by court-martial on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(d) . . . . . . . . . . . . . . . . . . II–79 Admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III –19 Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2 Misprision of serious offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 95 . . . . . . . . . . . . . . . . . . . . IV–139 Missing movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 11 . . . . . . . . . . . . . . . . . . . . I V–16 Mistake of fact Checks, insufficient funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 49c(18) . . . . . . . . . . . . . . . IV–96 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–118 Mistake of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–119 Mistrial Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(c) . . . . . . . . . . . . . . . . . . II–115 Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(a) . . . . . . . . . . . . . . . . . . II–115 Partial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(a) . . . . . . . . . . . . . . . . . . II–115 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(b) . . . . . . . . . . . . . . . . . . II–115 Index 39 MCM, 2016INDEX
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Subject Ref. Page Remedy for failure to produce statement . . . . . . . . . . . . . . . R.C.M. 914(e) . . . . . . . . . . . . . . . . . . II–114 Mitigation Evidence in sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(1)(B) . . . . . . . . . . . . I I–129 Modification of initial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2) . . . . . . . . . . . . . . . II–164 Motions Appropriate relief Bill of particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(6) . . . . . . . . . . . . . . . . II–100 Charges and specifications . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(4) . . . . . . II–97; II–100 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(1) . . . . . . . . . . . . . . . . II–99 Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(6); 906(b)(2) . . . . . . II– 97; II–99 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(a) . . . . . . . . . . . . . . . . . . II–99 Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4); 906(b)(7); 914 . . II–97; I I–100; II–113 Evidence, admissibility of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(13) . . . . . . . . . . . . . . . II–1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906 . . . . . . . . . . . . . . . . . . . . II–99 Mental capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . I I–102 Mental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II– 102 Multiplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(12) . . . . . . . . . . . . . . . II–101 Place of trial, change of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(11) . . . . . . . . . . . . . . . II–101 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(3) . . . . . . II–97; II–1 00 Pretrial advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(3) . . . . . . II–97; II–100 Severance of Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(9) . . . . . . II–97; II–100 Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(10) . . . . . II–97; I I–101 Duplicious specification . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(5) . . . . . . . . . . . . . . . . II–100 Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c) . . . . . . . . . . . . . . . . . . II–97 Convening authority, submission to . . . . . . . . . . . . . . . . . . . R.C.M. 905(j) . . . . . . . . . . . . . . . . . . II–99 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(a) . . . . . . . . . . . . . . . . . . II–97 Final determination, effect of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–98 For finding of not guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 917 . . . . . . . . . . . . . . . . . . . . II–119 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905 . . . . . . . . . . . . . . . . . . . . II–96 Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b) . . . . . . . . . . . . . . . . . . II–97 Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(f) . . . . . . . . . . . . . . . . . . II–98 Res judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–98 Rulings on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(d) . . . . . . . . . . . . . . . . . . II–98 Scheduling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II–78 Selection of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(b)(1) . . . . . . . . . . . . . . . . II–109 Special findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(d) . . . . . . . . . . . . . . . . . . II–98 See also Special findings. Speedy trial, exclusion of time for . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c)(1) . . . . . . . . . . . . . . . . II–7 6 To dismiss Constructive condonation of desertion . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–103 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(a) . . . . . . . . . . . . . . . . . . II–102 Former jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(C) . . . . . . . . . . . . . II– 103 Grounds generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b) . . . . . . . . . . . . . . . . . . I I–102 Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(ii) . . . . . . . . . . II–103 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(1) . . . . II–97 ; II–102 Multiplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(3)(B) . . . . . . . . . . . . . II–103 Nonwaivable ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1) . . . . . . . . . . . . . . . . II–10 2 Pardon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(i) . . . . . . . . . . . II–103 Prior punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–103 Specification Defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(3)(A) . . . . . . . . . . . . . I I–103 Failure to state offense . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(E) . . . . . . . . . . . . . II–103 Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(2)(A) . II–97; II– 102 Statue of limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(2)(B) . II–97; II–102 Waivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2) . . . . . . . . . . . . . . . . II–102 To suppress Procedure concerning Confessions and admissions . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304 . . . . . . . . . . . . . . . III–4 Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17 Search and seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311 . . . . . . . . . . . . . . . III–8 Production of statements for . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(k) . . . . . . . . . . . . . . . . . . II–99 Time for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(3) . . . . . . . . . . . . . . . . II–97 Waiver Index 40 MCM, 2016 INDEX
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Subject Ref. Page Conditional guilty plea, effect on . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–106 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–98 Written Discretion of military judge . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(a); 905(h) . . . . . . . . . . . II–97; II–99 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(h) . . . . . . . . . . . . . . . . . . II–99 Service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(i) . . . . . . . . . . . . . . . . . . II–99 Motive Other crimes, wrongs, or acts to prove . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Statement of, as hearsay exception . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(3) . . . . . . . . . . . . III–46 To misrepresent, as impeachment . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 608(c) . . . . . . . . . . . . . III–41 Motor vehicle. See Vehicle. Multiplicity Conspiracy, with substantive offense, not . . . . . . . . . . . . . . IV. Para. 5c(8) . . . . . . . . . . . . . . . . . IV–7 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4); 1003(c)(1)(C) . . . II–30; II–136 Remedies available Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(3)(B) . . . . . . . . . . . . . II–103 Sentence limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(12); 1003(c)(1)(C) . . II–101; II–137 Murder Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–60 Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV –62 Mutiny Attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(6)(b); 18 . . . . . . . . . . . IV–5; IV–26 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18 . . . . . . . . . . . . . . . . . . . . IV–26 Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Narcotics, offenses involving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 National security, disposition of charges affecting . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–33; II–44 Neglects to prejudice of good order and discipline . . . . . . . . IV. Para. 60c(2) . . . . . . . . . . . . . . . . IV–114 Negligence Culpable, involuntary manslaughter . . . . . . . . . . . . . . . . . . . . IV. Para. 44c(2)(a) . . . . . . . . . . . . . . IV–63 Wanton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43c(4) . . . . . . . . . . . . . . . . IV–62 Negligent homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 85 . . . . . . . . . . . . . . . . . . . . I V–134 Neutral and detached officer Pretrial confinement, reviewed by . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(i) . . . . . . . . . . . . . . . . . . II– 23 Search authorization, required for . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–15 Neutral powers, citizens of, communicating with enemy . . . IV. Para. 28c(6)(c) . . . . . . . . . . . . . . IV–41 New trial Action by convening authority on . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5)(B) . . . . . . . . . . . . II–166 Action when granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(h) . . . . . . . . . . . . . . . . . II–189 Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(f) . . . . . . . . . . . . . . . . . II–188 Petition for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(b); 1210(c); 1210(d); . II–188 R.C.M. 1210(e); 1210(g) . . . . . . . . . II–188 Procedures for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810 . . . . . . . . . . . . . . . . . . . . II–89 Noncommissioned and petty officer Apprehend, authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18 Assault on In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV– 100 Disobedience of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Disrespect toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Noncompliance with procedural rules, as offense . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32 Nonjudicial punishment (Art. 15, UCMJ) Administrative measures, relationship with . . . . . . . . . . . . . . V. Para. 1g . . . . . . . . . . . . . . . . . . . . V–2 Appeal of Action by superior authority . . . . . . . . . . . . . . . . . . . . . V. Para. 7f . . . . . . . . . . . . . . . . . . . . . V–8 Format of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7c . . . . . . . . . . . . . . . . . . . . V–8 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7a . . . . . . . . . . . . . . . . . . . . V–8 Legal review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7e . . . . . . . . . . . . . . . . . . . . V–8 Time limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7d . . . . . . . . . . . . . . . . . . . . V–8 Who may act on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7b . . . . . . . . . . . . . . . . . . . . V–8 Authority, commander’s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(4); V. Para 1a; 2a . . . I–1; V–1; V–2 Double punishment prohibited . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(1) . . . . . . . . . . . . . . . . . . V –1 Effect of errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1h . . . . . . . . . . . . . . . . . . . . V–2 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part V . . . . . . . . . . . . . . . . . . . . . . . . . V–1 Index 41 MCM, 2016INDEX
p. 910
Subject Ref. Page Increase in punishment prohibited . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(2) . . . . . . . . . . . . . . . . . . V– 1 Limitations on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f . . . . . . . . . . . . . . . . . . . . . V–1 Minor offenses Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1e . . . . . . . . . . . . . . . . . . . . V–1 Trial by court-martial barred . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–103 Mitigation of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6b . . . . . . . . . . . . . . . . . . . . V–7 Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1b . . . . . . . . . . . . . . . . . . . . V–1 Offense, disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(c)(3); V. Para. 1 . . . . . II–27; V–1 Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1d . . . . . . . . . . . . . . . . . . . . V–1 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 4 . . . . . . . . . . . . . . . . . . . . . V–2 Punishments Admonition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5 Arrest in quarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(3) . . . . . . . . . . . . . . . . . . V–5 Combinations, limitations . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5d . . . . . . . . . . . . . . . . . . . . V–6 Confinement on bread and water or diminished rations V. Para. 5c(5) . . . . . . . . . . . . . . . . . . V–6 Correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(4) . . . . . . . . . . . . . . . . . . V –5 Extra duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(6) . . . . . . . . . . . . . . . . . . V–6 Forfeiture of pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(8) . . . . . . . . . . . . . . . . . . V–6 Limitations on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f . . . . . . . . . . . . . . . . . . . . . V–1 Maximum authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b . . . . . . . . . . . . . . . . . . . . V– 4 Reduction in grade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(7) . . . . . . . . . . . . . . . . . . V –6 Reprimand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5 Restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(2) . . . . . . . . . . . . . . . . . . V–5 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1c . . . . . . . . . . . . . . . . . . . . V–1 Records of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 8 . . . . . . . . . . . . . . . . . . . . . V–9 Remission of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6c . . . . . . . . . . . . . . . . . . . . V–8 Setting aside punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6d . . . . . . . . . . . . . . . . . . . . V–8 Suspension of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6a . . . . . . . . . . . . . . . . . . . . V–7 Trial by court-martial, right to demand . . . . . . . . . . . . . . . . V. Para. 3 . . . . . . . . . . . . . . . . . . . . . V–2 Vessel, attached to or embarked in . . . . . . . . . . . . . . . . . . . V. Para. 3 . . . . . . . . . . . . . . . . . . . . . V–2 Who may impose Commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2a . . . . . . . . . . . . . . . . . . . . V–2 Officer in charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2b . . . . . . . . . . . . . . . . . . . . V–2 Principal assistant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2c . . . . . . . . . . . . . . . . . . . . V–2 Nonmilitary property, waste, spoilage, or destruction . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–48 Nonprivileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 510 . . . . . . . . . . . . . . . III–36 Not guilty, plea of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–106 Notice See also Disclosure and discovery. To military judge of pretrial agreement . . . . . . . . . . . . . . . . R.C.M. 910(f)(2) . . . . . . . . . . . . . . . . II–107 Oaths Affirmation, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(a) . . . . . . . . . . . . . . . . . . II–86 Authority to administer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 136, UCMJ . . . . . . . . . . . . . . . . A2–38 Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(a) . . . . . . . . . . . . . . . . . . II–86 Deposition witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(f)(4) . . . . . . . . . . . . . . . . II–64 Escort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 False swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 79 . . . . . . . . . . . . . . . . . . . . IV–131 Forms of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(2) . . . . . . . . . . . . . . . . II–87 Fraud against United States, in connection with . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807 . . . . . . . . . . . . . . . . . . . . II–86 Guilty plea, accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–107 Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–107 Preferral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b) . . . . . . . . . . . . . . . . . . II–28 Preliminary hearing, witnesses . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–38 Probable cause information, not required . . . . . . . . . . . . . . . Mil. R. Evid. 315(f)(2) . . . . . . . . . . III–15 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(2) . . . . . . . . . . . . . . . . II–87 Regulations of Secretary concerned . . . . . . . . . . . . . . . . . . . . Art. 42(a), UCMJ; R.C.M. 807(b) . A2–13; II–87 Reporter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b); Mil. R. Evid. 603 . II –87; III–40 Index 42 MCM, 2016 INDEX
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Subject Ref. Page Obedience to orders, as a defense . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(d) . . . . . . . . . . . . . . . . . . II–116 Objection See also Evidence, Objections; Motions. To evidence at preliminary hearing . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(4); 405(h)(5) . . . . . . II–40 To trial by summary court-martial . . . . . . . . . . . . . . . . . . . . R.C.M. 1303 . . . . . . . . . . . . . . . . . . . II–19 1 Waiver, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e); Mil. R. Evid. 103(a) II–98 ; III–1 Obscene See also Indecent. Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 94 . . . . . . . . . . . . . . . . . . . . IV–139 Obstructing justice Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 96 . . . . . . . . . . . . . . . . . . . . IV–140 Solicitation distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6c(3) . . . . . . . . . . . . . . . . . IV–8 Occupied territory Military jurisdiction exercised in . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1 Violation of laws of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(B) . . . . . . . . . . . . . II–11 Offenses See also specific offenses. Disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25 Failure to report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2c(2) . . . . . . . . . . . . . . . . . IV–3 Joinder of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(2) . . . . . . . . . . . . . . . . II–56 Jurisdiction of courts-martial over . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15 Minor, disposition by nonjudicial punishment . . . . . . . . . . . V. Para. 1e . . . . . . . . . . . . . . . . . . . . V–1 Report of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 301 . . . . . . . . . . . . . . . . . . . . II–17 Uncharged, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(d) . . . . . . . . . . . . . . . . . . II–79 Offer of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(2); 103(b) . . . III–1 Office hours. See Nonjudicial Punishment. Officer Commissioned See also Commissioned officer. Accused as, composition of court-martial . . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–45 Apprehend, authority to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18 Assault on In execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–19 Not in execution of office . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–100 Conduct unbecoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . I V–112 Dismissal by general court-martial . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–133 Dismissal by President, right to request trial by court- martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 107 . . . . . . . . . . . . . . . . . . . . II–6 Disobedience of superior . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV– 19 Disrespect toward superior . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13 . . . . . . . . . . . . . . . . . . . . IV– 18 Restraint of, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20 In charge Authority to impose nonjudicial punishment . . . . . . . . V. Para. 2b . . . . . . . . . . . . . . . . . . . . V–2 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(4), UCMJ; R.C.M. 103(5) . . A2–1; II –1 Noncommissioned. See Noncommissioned and petty officer. Petty. See Petty officer. Warrant. See Warrant officer. Official communications, privileges . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505; 506 . . . . . . . . . . III–25; III–31 Official documents See also Evidence. False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–45 Official records See also Evidence. Absence of, evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(7); 803(10) . . . . . III–46 ; III–47 Admissibility as evidence, general rule . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Attesting certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902(4 a) . . . . . . . . . . III–50 Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–49; III–50 Extract copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1006 . . . . . . . . . . . . . . III–52 Logs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Military records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Morning report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Notes or memoranda, composed from . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Official publication of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . II I–46 Index 43 MCM, 2016INDEX
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Subject Ref. Page Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–50 Service record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Summaries of official records . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8); 1006 III–46; III–52 Unit personnel diary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III –46 Officials, contempt toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–17 Official statement, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–45 Opening mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–138 Opinion evidence. See Evidence, Opinion. Orderly Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2); 502(f) . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C) . . . . . . . . . . . . . II–49 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Orders See also Convening orders; Promulgating orders. Failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 General orders, disobedience of . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Lawfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14c(2)(a) . . . . . . . . . . . . . . IV–20 Obedience to, as defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(d) . . . . . . . . . . . . . . . . . . II–116 Willful disobedience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 14; 15 . . . . . . . . . . . . . . . IV–19; IV–21 Other sexual misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45c . . . . . . . . . . . . . . . . . . . IV–85 Other trial Action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5)(A) . . . . . . . . . . . . II–165 Convening authority ordering . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(e)(3) . . . . . . . . . . . . . . . II –164 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(e) . . . . . . . . . . . . . . . . . . II–90 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a); 810(b); 810(c) . . . . II–89; II–90 Sentence limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–90 Overt acts Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(1); 4c(2) . . . . . . . . . . . . IV–5 Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c(4) . . . . . . . . . . . . . . . . . IV–6 Pandering Forcible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–66 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 97 . . . . . . . . . . . . . . . . . . . . IV–141 Solicitation distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6c(3) . . . . . . . . . . . . . . . . . IV–8 Pardon, motion to dismiss based on . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(i) . . . . . . . . . . . II–103 Parole, improper use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 25 . . . . . . . . . . . . . . . . . . . . IV–37 Party To conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c(1) . . . . . . . . . . . . . . . . . IV–6 To court-martial, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(16) . . . . . . . . . . . . . . . . . II–2 To offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1); 1b(2) . . . . . . . . . . . IV–1 Pass, false or unauthorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Patient-doctor, no privileged communication . . . . . . . . . . . . . . . Mil. R. Evid. 501(d) . . . . . . . . . . . . III–23 Peace, breach of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 41 . . . . . . . . . . . . . . . . . . . . IV–59 Peremptory challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(g) . . . . . . . . . . . . . . . . . . II–111 Perjury See also False swearing. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–107 Guilty plea inquiry, statements during . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–107 Immunity, not extending to . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(b) . . . . . . . . . . . . . . . . . . II–70 New trial, grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(f)(3) . . . . . . . . . . . . . . . II–188 Subornation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 98 . . . . . . . . . . . . . . . . . . . . IV–143 Permits, false or unauthorized . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–129 Perpetrator See also Principals. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(2)(a) . . . . . . . . . . . . . . . IV–1 Personnel of courts-martial See also specific topics. Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813 . . . . . . . . . . . . . . . . . . . . II–92 Censure of, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–5 Changes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505 . . . . . . . . . . . . . . . . . . . . II–52 Detail of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503 . . . . . . . . . . . . . . . . . . . . II–49 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501 . . . . . . . . . . . . . . . . . . . . II–45 Qualification and duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502 . . . . . . . . . . . . . . . . . . . . II–45 Personnel records, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–46 Index 44 MCM, 2016 INDEX
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Subject Ref. Page Petty officer Apprehend, authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18 Assault on In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV– 100 Contempt toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Disobedience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Disrespect toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Photographs Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(c) . . . . . . . . . . . . III–51 Disclosure by defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–60 Disclosure upon defense request . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–59 Taking in courtroom, prohibited . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II– 86 Physical examination Disclosure by defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–60 Disclosure upon defense request . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–59 Not an unlawful search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(f) . . . . . . . . . . . . . I II–11 Physical inability, as a defense . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–118 Physician, no privileged communication to . . . . . . . . . . . . . . . . . Mil. R. Evid. 501(d) . . . . . . . . . . . . III–23 Pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 23; 27 . . . . . . . . . . . . . . . IV–33; IV–39 Place of court-martial Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(11) . . . . . . . . . . . . . . . II–101 Convening authority Designating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(d)(1); 504(d)(2) . . . . . . II–52 Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(e) . . . . . . . . . . . . . . . . . . II–52 Jurisdiction, not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3) . . . . . . . . . . . . . . . . II–9 Plain error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(f) . . . . . . . . . . . . . III–1 Plan or design of accused, evidence of . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19 Pleadings. See Charges and specifications. Pleas Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–106 Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 904 . . . . . . . . . . . . . . . . . . . . II–96 Article 39(a) session, taking at . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–107 Capital case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(1) . . . . . . . . . . . . . . . . II–106 Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(1) . . . . . . . . . . . . . . . . II–108 Conditional guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–106 Defenses and objections before entered . . . . . . . . . . . . . . . . R.C.M. 905(b) . . . . . . . . . . . . . . . . . . II–97 Exceptions and substitutions . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(1) . . . . . . . . . . . . . . . . II–106 Failure to plead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–106 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910 . . . . . . . . . . . . . . . . . . . . II–106 Guilty Accuracy, determination of . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–107 Advice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . I I–107 Capital cases, prohibited in . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(1) . . . . . . . . . . . . . . . . II–106 Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–107 Factual basis required . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II –107 False statements during inquiry . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–107 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g) . . . . . . . . . . . . . . . . . . II–108 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c); 910(d); 910(e) . . . . II–10 7 Improvidently entered . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(d); 910(e) . . . . . . . . . . . II–107 Inconsistent matters after plea . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–107 Inconsistent statements after findings . . . . . . . . . . . . . . R.C.M. 910(h)(2) . . . . . . . . . . . . . . . . II–108 Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c); 910(d); 910(e) . . . . II– 107 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–107 Pretrial agreement inquiry . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f); 910(h)(3) . . . . . . . . . II–107; II– 108 Procedure Consultation with counsel . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–48 Explanation to accused of effect . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–107 Record of explanation and reply . . . . . . . . . . . . . . . . R.C.M. 910(i) . . . . . . . . . . . . . . . . . . II–108 Rehearings, changing . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(2)(B) . . . . . . . . . . . . . II–89 Statements during providency Inadmissible on merits . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20 Inconsistent with plea . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(2) . . . . . . . . . . . . . . . . II–108 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b)(2)(D)(ii) . . . . . . . . . II–193 Index 45 MCM, 2016INDEX
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Subject Ref. Page Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(d) . . . . . . . . . . . . . . . . . . II–107 Vote, necessity of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g)(3) . . . . . . . . . . . . . . . . I I–108 Waiver of objections by . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(j) . . . . . . . . . . . . . . . . . . II–10 9 Withdrawal after findings . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(1) . . . . . . . . . . . . . . . . II–108 Irregular . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–106 Nondisclosure of guilty plea negotiations . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20 Refusal to enter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–106 Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(1); 810(a)(2)(B) . . . . II–89 Summary courts-martial Entry of pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b)(2)(D) . . . . . . . . . . . . II– 193 Explanation to accused . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b)(1)(H) . . . . . . . . . . . . II–192 Plunder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Police. See Law enforcement official. Political vote, privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–3 6 Polling of members, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(e); 1007(c) . . . . . . . . . . II–125; II–142 Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–41 Polygraph Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 707 . . . . . . . . . . . . . . . III–45 Possession of controlled substance . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Post-trial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(b) . . . . . . . . . . . . . . . . . II–144 See also Confinement. Post-trial procedure See also specific topics. Disposition of record of trial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1111 . . . . . . . . . . . . . . . . . . . II–173 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter XI . . . . . . . . . . . . . . . . . . . . . II–144 Matters submitted by accused Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(b) . . . . . . . . . . . . . . . . . II–155 Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(a) . . . . . . . . . . . . . . . . . II–155 Time periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(c) . . . . . . . . . . . . . . . . . II–156 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(d) . . . . . . . . . . . . . . . . . II–156 Review by a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112 . . . . . . . . . . . . . . . . . . . II –174 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306 . . . . . . . . . . . . . . . . . . . II–194 Post-trial recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–157 See also Staff judge advocate. Post-trial sessions Article 39(a) sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(b)(2) . . . . . . . . . . . . . . . II–146 Findings; lack of mental responsibility . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–147 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102 . . . . . . . . . . . . . . . . . . . II–146 Matters precluded from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(c) . . . . . . . . . . . . . . . . . II–146 Procedure Action by military judge, members . . . . . . . . . . . . . . . R.C.M. 1102(e)(2) . . . . . . . . . . . . . . . II–147 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(e)(1) . . . . . . . . . . . . . . . II–147 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(e)(3) . . . . . . . . . . . . . . . II–147 Proceedings in revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(b)(1) . . . . . . . . . . . . . . . II–146 When directed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(d) . . . . . . . . . . . . . . . . . II–146 Preferral of charges Accuser. See Accuser. Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–1 5 Charge, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–28 Deposition, requisite to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(a) . . . . . . . . . . . . . . . . . . II–62 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307 . . . . . . . . . . . . . . . . . . . . II–27 Motion as to defects in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1) . . . . . . . . . . . . . . . . II–97 Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–31 Oath required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b)(1) . . . . . . . . . . . . . . . . II–28 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b) . . . . . . . . . . . . . . . . . . II–28 Speedy trial, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a); 707(b) . . . . . . . . . . . II–75 Waiver of defects in, by failure to raise . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–98 Who may prefer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(a) . . . . . . . . . . . . . . . . . . II–28 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405 . . . . . . . . . . . . . . . . . . . . II–35 Earlier preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(b) . . . . . . . . . . . . . . . . . . II–36 In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(a) . . . . . . . . . . . . . . . . . . II–35 Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h) . . . . . . . . . . . . . . . . . . II–40 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d) . . . . . . . . . . . . . . . . . . II–36 Preliminary hearing officer . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(1) . . . . . . . . . . . . . . . . II–36 Counsel to represent the United States . . . . . . . . . . . . R.C.M. 405(d)(2) . . . . . . . . . . . . . . . . II–36 Index 46 MCM, 2016 INDEX
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Subject Ref. Page Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3) . . . . . . . . . . . . . . . . II–36 Detailed counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(A) . . . . . . . . . . . . . II–36 Individual military counsel . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(B) . . . . . . . . . . . . . II–36 Civilian counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(C) . . . . . . . . . . . . . II–36 Other personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(4) . . . . . . . . . . . . . . . . II–37 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i) . . . . . . . . . . . . . . . . . . II–40 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(1) . . . . . . . . . . . . . . . . II–40 Notice to and presence of the victim(s) . . . . . . . . . . . R.C.M. 405(i)(2) . . . . . . . . . . . . . . . . II–40 Presentation of evidence . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(3) . . . . . . . . . . . . . . . . II–41 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(3)(A) . . . . . . . . . . . . . II–41 Other evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(3)(B) . . . . . . . . . . . . . II–41 Access by spectators . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(4) . . . . . . . . . . . . . . . . II– 41 Presence of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(5) . . . . . . . . . . . . . . . . II–4 1 Recording of the preliminary hearing . . . . . . . . . . . . . . R.C.M. 405(i)(6) . . . . . . . . . . . . . . . . II–42 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(7) . . . . . . . . . . . . . . . . II–42 Sealed exhibits and proceedings . . . . . . . . . . . . . . . . . . R.C.M. 405(i)(8) . . . . . . . . . . . . . . . . II–42 Production of witnesses and other evidence . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–38 Military witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(1) . . . . . . . . . . . . . . . . I I–38 Civilian witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(2) . . . . . . . . . . . . . . . . I I–38 Other evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(3) . . . . . . . . . . . . . . . . II–39 Evidence under the control of the government . . R.C.M. 405(g)(3)(A) . . . . . . . . . . . . . II–39 Evidence not under the control of the government R.C.M. 405(g)(3)(B) . . . . . . . . . . . . . II–39 Report of preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j) . . . . . . . . . . . . . . . . . . I I–42 In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j)(1) . . . . . . . . . . . . . . . . II–42 Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j)(2) . . . . . . . . . . . . . . . . II–42 Sealed exhibits and proceedings . . . . . . . . . . . . . . . . . . R.C.M. 405(j)(3) . . . . . . . . . . . . . . . . II–42 Distribution of the report . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j)(4) . . . . . . . . . . . . . . . . II–42 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j)(5) . . . . . . . . . . . . . . . . II–43 Rights of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f) . . . . . . . . . . . . . . . . . . II–37 Scope of preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(e) . . . . . . . . . . . . . . . . . . II–37 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(k) . . . . . . . . . . . . . . . . . . II–43 Who may direct a preliminary hearing . . . . . . . . . . . . . . . . R.C.M. 405(c) . . . . . . . . . . . . . . . . . . II–36 Preliminary inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19 Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104 . . . . . . . . . . . . . . . III–1 Premeditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43c(2) . . . . . . . . . . . . . . . . IV–61 Preparation of record of trial. See Record of trial. Presentation of case on merits . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913 . . . . . . . . . . . . . . . . . . . . II–112 See also specific topics. Presentencing procedure Accused, statement by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(2) . . . . . . . . . . . . . . . II–129 Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(g) . . . . . . . . . . . . . . . . . II–130 Defense, matters presented by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c) . . . . . . . . . . . . . . . . . II –129 Deposition, for use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(c)(3)(B) . . . . . . . . . . . . . II–63 Evidence for Discovery of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(5) . . . . . . . . . . . . . . . . II–59 Production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–69 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001 . . . . . . . . . . . . . . . . . . . II–127 Production of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(e) . . . . . . . . . . . . . . . . . II–129 Prosecution, matters presented by . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(b) . . . . . . . . . . . . . . . . . II–1 27 Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(d) . . . . . . . . . . . . . . . . . II–129 Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(2) . . . . . . . . . . . . . . . . II–89 Victim, right to be reasonably heard . . . . . . . . . . . . . . . . . . R.C.M. 1001(a)(1)(B); 1001A . . . . . II–127; II–131 Presenting false claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 President of court-martial Duties Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(a); 1006(b) . . . . . . . . . . II –123; II–140 Findings, announcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(b) . . . . . . . . . . . . . . . . . . II –125 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(2) . . . . . . . . . . . . . . . . II–46 Sentence, announcing . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007(a) . . . . . . . . . . . . . . . . . II–14 2 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(6); 1006(d)(3)(B) . . . II–1 24; II–141 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(1) . . . . . . . . . . . . . . . . II–46 Special court-martial without military judge Conferences prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(f) . . . . . . . . . . . . . . . . . . II–8 2 Duties of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(2)(C) . . . . . . . . . . . . . II–46 Index 47 MCM, 2016INDEX
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Subject Ref. Page “Military judge” including . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(15); 502(b)(2)(C) . . . . . II–2; II–46 Rulings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(2); 801(e)(3) . . . . . . . II –80 President of the United States Capital cases, approval of sentence . . . . . . . . . . . . . . . . . . . R.C.M. 1207 . . . . . . . . . . . . . . . . . . . II–18 6 Contempt toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–17 Courts-martial, power to convene . . . . . . . . . . . . . . . . . . . . . Art. 22, UCMJ; R.C.M. 504(b) . . . A2–7; II–51 Dismissal of officer, right to trial . . . . . . . . . . . . . . . . . . . . . R.C.M. 107 . . . . . . . . . . . . . . . . . . . . II–6 Military Rules of Evidence, action concerning amendments Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–52 Presumption Innocence, instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5)(A) . . . . . . . . . . . . . I I–123 Mental capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909(b) . . . . . . . . . . . . . . . . . . II–105 Mental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(3)(A) . . . . . . . . . . . . . II–118 Witness competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–40 Pretense, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 46; 78 . . . . . . . . . . . . . . . IV–87; IV–131 Pretrial advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406 . . . . . . . . . . . . . . . . . . . . II–43 See also Advice, pretrial. Pretrial agreements Action pursuant to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(E) . . . . . . . . . . . . . II–72 Authority to enter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(a); 705(d)(4) . . . . . . . . . II–71; II–73 Conditional guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–106 Confessional stipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–72 Disclosure of Plea negotiations, prohibited . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20 To members, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(e) . . . . . . . . . . . . . . . . . . II–73 To military judge before plea . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f)(3) . . . . . . . . . . . . . . . . II–108 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705 . . . . . . . . . . . . . . . . . . . . II–71 Inquiry by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f)(4); 910(h)(3) . . . . . . . II–10 8 Nature of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b) . . . . . . . . . . . . . . . . . . II–72 Notice of, to military judge . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f)(2) . . . . . . . . . . . . . . . . II–107 Procedure to obtain Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(3) . . . . . . . . . . . . . . . . II–73 Formal submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(2) . . . . . . . . . . . . . . . . II –73 Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(1) . . . . . . . . . . . . . . . . II–73 Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(1) . . . . . . . . . . . . . . . . II–73 Referral pursuant to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(A); 705(b)(2)(B) . II–72 Sentence, effect at rehearing . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d)(2) . . . . . . . . . . . . . . . . II–90 Terms and conditions Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c) . . . . . . . . . . . . . . . . . . II–72 Permissible terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2) . . . . . . . . . . . . . . . . II–72 Prohibited terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(1) . . . . . . . . . . . . . . . . II–72 Withdrawal of Charges pursuant to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–72 Parties to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(4) . . . . . . . . . . . . . . . . II–73 Pretrial confinement. See Confinement, pretrial. See also Investigation, pretrial. Principal assistant, delegation to Excuse members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c)(1)(B) . . . . . . . . . . . . . II–52 Nonjudicial punishment authority . . . . . . . . . . . . . . . . . . . . . V. Para. 2c . . . . . . . . . . . . . . . . . . . . V– 2 Principals Accessory after the fact, relationship . . . . . . . . . . . . . . . . . . IV. Para. 2c(1); 2c(4); 2c(5) . . . . . . IV–3 Aider and abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1) . . . . . . . . . . . . . . . . . IV–1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1 Perpetrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1); 1b(2)(a) . . . . . . . . . IV–1 Pleading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(3) . . . . . . . . . . . . . . . . II–28 Prior testimony, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Prisoner See also Confinement. Authority to release From post-trial confinement . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(b)(2) . . . . . . . . . . . . . . . II–144 From pretrial confinement . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22 Drinking liquor with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 74 . . . . . . . . . . . . . . . . . . . . IV–128 Drunk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 75 . . . . . . . . . . . . . . . . . . . . IV–128 Jurisdiction over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(a)(7), UCMJ; R.C.M. 202(a) A2–2; II–13 Release of, without proper authority . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . I V–31 Index 48 MCM, 2016 INDEX
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Subject Ref. Page Suffering to escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–31 Prisoner of war Jurisdiction over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(a)(9), UCMJ; R.C.M. 202(a) A2–2; II–13 Misconduct as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 29 . . . . . . . . . . . . . . . . . . . . IV–42 Privileged matter. See Evidence, Privileges. Probable cause See also Search and seizure. Apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(c) . . . . . . . . . . . . . . . . . . II–18 Confinement Pending vacation of suspension . . . . . . . . . . . . . . . . . . . R.C.M. 1109(c)(3) . . . . . . . . . . . . . . . II–168 Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(d); 305(h)(2)(B) . . . . . . II–21; II–23 Restraint, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20 Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(f) . . . . . . . . . . . . . III–15 Seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c) . . . . . . . . . . . . . III–16 Probation See also Suspension of sentence. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108 . . . . . . . . . . . . . . . . . . . II–166 Pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(D) . . . . . . . . . . . . . II–72 Proceedings in revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(b)(1) . . . . . . . . . . . . . . . II–146 Procuring another to commit offense . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1 Production of witnesses and evidence See also Witness. Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(a); 703(f) . . . . . . . . . . . . II–65; II–69 Expert witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–67 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703 . . . . . . . . . . . . . . . . . . . . II–65 Interlocutory questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b); 703(c) . . . . . . . . . . . II–65; II–66 Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b); 703(c) . . . . . . . . . . . II–65; II–66 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–38 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e); Appendix 7 . . . . . . . II–67; A7–1 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(2); 1001(e) . . . . . . . . II–66; II–130 Statements of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–113 Unavailable evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f)(2) . . . . . . . . . . . . . . . . II–69 Unavailable witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(3) . . . . . . . . . . . . . . . . II–66 Professional supervision, military judges and counsel . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6 Promulgating orders Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(e) . . . . . . . . . . . . . . . . . II–178 Classified information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(d) . . . . . . . . . . . . . . . . . II–178 Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(c) . . . . . . . . . . . . . . . . . II–178 Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(f) . . . . . . . . . . . . . . . . . II–178 Forms for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 17 . . . . . . . . . . . . . . . . . . . A17–1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114 . . . . . . . . . . . . . . . . . . . II–177 Summary court-martial, not issued for . . . . . . . . . . . . . . . . . R.C.M. 1114(a)(3) . . . . . . . . . . . . . . . II–178 Who issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(b) . . . . . . . . . . . . . . . . . II–178 Property Captured or abandoned, offenses concerning . . . . . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39 Military, offenses concerning . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Nonmilitary, offenses concerning . . . . . . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–48 Preventing seizure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 103 . . . . . . . . . . . . . . . . . . . IV–146 Prosecutor. See Counsel; Trial counsel. Prosecutorial discretion Commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25 Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–32 Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(5) . . . . . . . . . . . . . . . . II–47 Prostitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 97 . . . . . . . . . . . . . . . . . . . . IV–141 Protecting the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–40 Provoking speech and gestures Breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 41; 42c(1) . . . . . . . . . . . . IV–59; IV–60 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 42 . . . . . . . . . . . . . . . . . . . . IV–60 Provost courts Contempt power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 48, UCMJ . . . . . . . . . . . . . . . . . A2–15 Jurisdiction Concurrent with other tribunals . . . . . . . . . . . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–13 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1 Psychiatrist Index 49 MCM, 2016INDEX
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Subject Ref. Page Mental examination of accused by . . . . . . . . . . . . . . . . . . . . R.C.M. 706(c)(1) . . . . . . . . . . . . . . . . II–74 Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . I II–37 Public record, offenses concerning . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 99 . . . . . . . . . . . . . . . . . . . . IV–144 See also Evidence. Public trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806 . . . . . . . . . . . . . . . . . . . . II–85 Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(2) . . . . . . . . . . . . . . . . II–85 Control of spectators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(1) . . . . . . . . . . . . . . . . II–85 Punishments See also specific topics. Courts-martial Authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b) . . . . . . . . . . . . . . . . . II–132 Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–133 Confinement on bread and water or diminished rations R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–133 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(9) . . . . . . . . . . . . . . . II–134 Fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(3) . . . . . . . . . . . . . . . II–132 Forfeiture of pay and allowances . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(2) . . . . . . . . . . . . . . . II–132 General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii); 201(f)(1)(B)(ii) . . . . . . . . . . . . . . . . . . II–11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003 . . . . . . . . . . . . . . . . . . . II–132 Hard labor without confinement . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(6) . . . . . . . . . . . . . . . II–133 Increase in, circumstances permitting . . . . . . . . . . . . . . R.C.M. 1003(d) . . . . . . . . . . . . . . . . . II–136 Law of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(10) . . . . . . . . . . . . . . I I–134 Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(c) . . . . . . . . . . . . . . . . . II–134 Maximum punishment chart . . . . . . . . . . . . . . . . . . . . . . Appendix 12 . . . . . . . . . . . . . . . . . . . A12–1 Punitive separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8) . . . . . . . . . . . . . . . I I–133 Reduction in grade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(4) . . . . . . . . . . . . . . . II–1 33 Reprimand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(1) . . . . . . . . . . . . . . . II–132 Restitution Not authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a) . . . . . . . . . . . . . . . . . . II–9 Pretrial agreement, permissible condition . . . . . . . R.C.M. 705(c)(2)(C) . . . . . . . . . . . . . II–72 Restriction to specified limits . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(5) . . . . . . . . . . . . . . . II–133 Special courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c); 1301(d) . . . . . . . . . II–190 Nonjudicial. See Nonjudicial punishment. Prior, for minor offense, barring court-martial . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–103 Punitive Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part IV . . . . . . . . . . . . . . . . . . . . . . . . IV–1 See also specific offenses. Qualifications Assistant counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(2) . . . . . . . . . . . . . . . . II–46 Associate defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1) . . . . . . . . . . . . . . . . II–46 Bailiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–46 Defense Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1); 502(d)(3) . . . . . . II– 46 Deposition officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(1) . . . . . . . . . . . . . . . . II–63 Escort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Individual counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(3) . . . . . . . . . . . . . . . . II–46 Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1); Mil. R. Evid. 60 4 II–49; III–41 Lack of, action on discovery . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–49 Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–45 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(c) . . . . . . . . . . . . . . . . . . II–46 Orderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 President of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(1) . . . . . . . . . . . . . . . . II–46 Reporter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1); 502(d)(2) . . . . . . II–46 Quarantine, medical, breaking . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 100 . . . . . . . . . . . . . . . . . . . IV–144 Questions See also Testimony; Witness. Ambiguous and misleading . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–4 2 Control by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–42 Degrading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303; 611(a) . . . . . . . . III–4; III–42 Improper, insulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–42 Interlocutory. See Interlocutory questions. Leading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(c) . . . . . . . . . . . . . III–42 Index 50 MCM, 2016 INDEX
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Subject Ref. Page Refusal to answer, as offense . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 108 . . . . . . . . . . . . . . . . . . . IV–149 Suggesting inadmissible matter . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–4 2 Questions of law, rulings on . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4); 801(e)(1); 801(e)(2) . . . . . . . . . . . . . . . . . . . . . . . II–78; II–79; II–80 Quitting guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–13 See also Sentinel or lookout. Quitting place of duty to avoid hazardous duty . . . . . . . . . . IV. Para. 9 . . . . . . . . . . . . . . . . . . . . . IV–10 Quitting place of duty to plunder or pillage . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Radio, broadcasting from courtroom . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II–86 Rape Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Evidence of similar crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 413; 414 . . . . . . . . . . III–2 2 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–66 Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–60 “Rape shield” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412 . . . . . . . . . . . . . . . III–21 Reasonable doubt Guilt, basis for finding of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–121 Instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5) . . . . . . . . . . . . . . . . II–123 Rebuttal, evidence in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(1)(C); 1001(d) . . . . . II–112; II–129 Receipt Delivering less than amount called for by . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Making or delivering, without knowledge of facts . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Receiving stolen property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 106 . . . . . . . . . . . . . . . . . . . IV–148 Recess, announcement of personnel after . . . . . . . . . . . . . . . . . . . R.C.M. 813(b) . . . . . . . . . . . . . . . . . . II–92 Reciprocal jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e) . . . . . . . . . . . . . . . . . . II–10 Reckless endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 100a . . . . . . . . . . . . . . . . . . IV–144 Recklessly operating vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–50 Recollection refreshed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–43 Recommendation of staff judge advocate or legal officer on post-trial action Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(b) . . . . . . . . . . . . . . . . . II–157 Form and content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(d) . . . . . . . . . . . . . . . . . II–157 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–157 Guilty, no findings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(e) . . . . . . . . . . . . . . . . . II–158 Service on defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(f) . . . . . . . . . . . . . . . . . I I–158 Reconsideration Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924 . . . . . . . . . . . . . . . . . . . . II–125 Rulings by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(f) . . . . . . . . . . . . . . . . . . II–98 Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1009 . . . . . . . . . . . . . . . . . . . II–142 Record of nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . V. Para. 8 . . . . . . . . . . . . . . . . . . . . . V–9 Record of trial Acquittal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–149 Appeal by United States, prepared in . . . . . . . . . . . . . . . . . R.C.M. 908(b)(5) . . . . . . . . . . . . . . . . II–104 Audiotape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(j) . . . . . . . . . . . . . . . . . II–151 Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(a) . . . . . . . . . . . . . . . . . II–152 Contempt proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(d) . . . . . . . . . . . . . . . . . . II–89 Copies General and special courts-martial . . . . . . . . . . . . . . . . . R.C.M. 1103(g)(1) . . . . . . . . . . . . . . . II–149 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(b) . . . . . . . . . . . . . . . . . II–194 Correction, certificate of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–154 Disposition of after action . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1111 . . . . . . . . . . . . . . . . . . . II–173 Examination and correction before authentication By defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1)(B) . . . . . . . . . . . . II–150 By summary court-martial . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(2); 1305(b) . . . . . . . II–151; II–194 By trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1)(A) . . . . . . . . . . . . II– 150 Forwarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(e) . . . . . . . . . . . . . . . . . II–155 General courts-martial, contents . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b)(2) . . . . . . . . . . . . . . . II –148 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103; 1104 . . . . . . . . . . . . . . II–147; II–152 Guide for preparing summarized record . . . . . . . . . . . . . . . . Appendix 13 . . . . . . . . . . . . . . . . . . . A13–1 Guide for preparing verbatim records . . . . . . . . . . . . . . . . . . Appendix 14 . . . . . . . . . . . . . . . . . . . A14–1 Guilty plea, requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(i) . . . . . . . . . . . . . . . . . . II–108 Loss of notes or recordings . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(f) . . . . . . . . . . . . . . . . . II–149 Loss of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(c) . . . . . . . . . . . . . . . . . II–154 Index 51 MCM, 2016INDEX
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Subject Ref. Page New trial, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(c) . . . . . . . . . . . . . . . . . . II–90 Not guilty, lack of mental responsibility . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–149 Other trial, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(c) . . . . . . . . . . . . . . . . . . II–90 Preparation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103 . . . . . . . . . . . . . . . . . . . II–147 Recommendation of staff judge advocate or legal officer, before action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–157 Rehearing, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(2); 810(c) . . . . . . . . . II–89; II–90 Security classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(h) . . . . . . . . . . . . . . . . . II–150 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b) . . . . . . . . . . . . . . . . . II–153 Special courts-martial, contents . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(c) . . . . . . . . . . . . . . . . . I I–149 Summary courts-martial, contents . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305; Appendix 15 . . . . . . . II–194; A15–1 Termination prior to findings . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–149 Trial counsel Examination by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1)(A) . . . . . . . . . . . . II–15 0 Responsibility for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 808; 1103(b)(1) . . . . . . . . . . II–88 ; II–148 Verbatim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b)(2)(B); 1103(c)(1) . . II–148; II–149 Videotape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(j) . . . . . . . . . . . . . . . . . II–151 Views and inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–113 Record, public, altering, concealing, removing, mutilating, obliterating, destroying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 99 . . . . . . . . . . . . . . . . . . . . IV–144 Recusal of military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–94 Redress of grievances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 138, UCMJ . . . . . . . . . . . . . . . . A2–38 Referral of charges Accuser, disqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(c) . . . . . . . . . . . . . . . . . . II–55 Authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(b) . . . . . . . . . . . . . . . . . . II–55 Basis for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(d)(1) . . . . . . . . . . . . . . . . II–55 Capital offense Referred as noncapital . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(iii)(b) . . . . . . . . II–11 To special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(C) . . . . . . . . . . . . . II–12 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(a) . . . . . . . . . . . . . . . . . . II–55 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(c) . . . . . . . . . . . . . . . . . . II–55 Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(1) . . . . . . . . . . . . . . . . II–55 General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 407(a)(6); 601(d)(2) . . . . . . . II –44; II–55 Joinder of Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(3) . . . . . . . . . . . . . . . . II–56 Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(2) . . . . . . . . . . . . . . . . II–56 Jurisdictional requisite, as . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(3) . . . . . . . . . . . . . . . . II–9 Motion as to defect in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 905(e) . . . . . . . . . II– 97; II–98 National security, affecting . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II –33; II–44 Order of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(1) . . . . . . . . . . . . . . . . II–55 Pretrial agreement concerning . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(A); 705(b)(2)(B) . II–72 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e) . . . . . . . . . . . . . . . . . . II–55 Special courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 404(d); 601(d)(1) . . . . . . . . . I I–34; II–55 Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(4); 601(d)(1) . . . . . . II–34; II–55 Superior convening authority, powers regarding . . . . . . . . . R.C.M. 601(f) . . . . . . . . . . . . . . . . . . II–56 War, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–33; II–44 Withdrawn charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(b) . . . . . . . . . . . . . . . . . . II–58 Withholding, authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(b) . . . . . . . . . . . . . . . . . . II–55 Refreshing recollection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–43 Refusal to testify, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 108 . . . . . . . . . . . . . . . . . . . IV–149 Regulations, failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23 Rehearing Action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5) . . . . . . . . . . . . . . . II–165 Former testimony, admissibility at . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c)(2); 1107(e) . . . . . . . II–161; II–163 Procedure Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b) . . . . . . . . . . . . . . . . . . II–90 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810 . . . . . . . . . . . . . . . . . . . . II–89 Record, examination of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(c) . . . . . . . . . . . . . . . . . . II–9 0 Sentence limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–90 Pretrial agreement, effect of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d)(2) . . . . . . . . . . . . . . . . II–90 Releasing prisoner without proper authority . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–31 Relevancy. See Evidence. Relief, not affording, before enemy . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Index 52 MCM, 2016 INDEX
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Subject Ref. Page Religious beliefs or opinions, not subject to inquiry . . . . . . . . Mil. R. Evid. 610 . . . . . . . . . . . . . . . III–42 Remission of Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6c . . . . . . . . . . . . . . . . . . . . V–8 Sentence Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(a) . . . . . . . . . . . . . . . . . II–166 Of suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(e) . . . . . . . . . . . . . . . . . II–167 Who may remit Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(b) . . . . . . . . . . . . . . . . . II–166 Judge Advocate General, The . . . . . . . . . . . . . . . . . . R.C.M. 1201(c) . . . . . . . . . . . . . . . . . II–181 Service Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1206(b)(1) . . . . . . . . . . . . . . . II–18 6 Reopening case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(5) . . . . . . . . . . . . . . . . II–113 Report of Offense Failure to make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2c(2) . . . . . . . . . . . . . . . . . IV–3 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 301 . . . . . . . . . . . . . . . . . . . . II–17 Result of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(a) . . . . . . . . . . . . . . . . . II–144 Reporter Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(8) . . . . . . . . . . . . . . . . II–92 At preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(4)(A) . . . . . . . . . . . . . II–37 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–45 Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2); 502(f) . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(B) . . . . . . . . . . . . . II–49 Oath Administered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b); 901(c) . . . . . . . . . . . II –87; II–93 Status as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(c) . . . . . . . . . . . . . . . . . . II–93 Payment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(4) . . . . . . . . . . . . . . . . II–49 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–49 Record of trial, preparation . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103; 1104 . . . . . . . . . . . . . . II –147; II–152 See also Record of trial. Reprimand Court-martial, military judge, member, counsel, prohibited R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–5 Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5 Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(1) . . . . . . . . . . . . . . . II–132 Reproachful speech or gestures . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 42 . . . . . . . . . . . . . . . . . . . . IV–60 Reputation. See Evidence, Character. Requesting commission of offense . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 101 . . . . . . . . . . . . . . . . . . . IV–145 Rescission of deferment of confinement . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(6)(D); 1101(c)(7) . . II–145 Reserve personnel, eligibility for court-martial duty . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–45 Resignation, quitting post or duties before notification of acceptance, as desertion . . . . . . . . . . . . . . . . . IV. Para. 9 . . . . . . . . . . . . . . . . . . . . . IV–10 Resisting apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28 Res judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–98 Restoration Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1208 . . . . . . . . . . . . . . . . . . . II–186 To duty, as condonation of desertion . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–103 Restraint Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–1 5 During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(e)(3) . . . . . . . . . . . . . . . . II–84 Pretrial See also Confinement, pretrial. Authority to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304; 305; 804(c)(2) . . . . . . . II –19; II–21; II–83 Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II–21 Types of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a) . . . . . . . . . . . . . . . . . . II–19 Restriction Administrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(h) . . . . . . . . . . . . . . . . . . II–21 Attachment of jurisdiction, effect of . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–1 5 Breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 102 . . . . . . . . . . . . . . . . . . . IV–145 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 102c; R.C.M. 304(a)(2) . . IV–145; II–20 Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(2) . . . . . . . . . . . . . . . . . . V–5 Pretrial Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(2) . . . . . . . . . . . . . . . . II–19 Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20 Index 53 MCM, 2016INDEX
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Subject Ref. Page Notice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(e) . . . . . . . . . . . . . . . . . . I I–21 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(d) . . . . . . . . . . . . . . . . . . II–20 Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(g) . . . . . . . . . . . . . . . . . . II–21 Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a); 707(b) . . . . . . . . . . . II–75 Who may order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . I I–20 Sentence by court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(5) . . . . . . . . . . . . . . . II–133 Result of trial, report of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(a) . . . . . . . . . . . . . . . . . II–144 Retired personnel, eligibility for court-martial duty . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–45 Review of courts-martial. See Action of convening authority; Appellate review. Riot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 41 . . . . . . . . . . . . . . . . . . . . IV–59 Robbery Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 47 . . . . . . . . . . . . . . . . . . . . IV–91 Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–60 Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 4a . . . . . . . . . . . . . . . . . . . . I V–4 Routine practice, evidence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–20 Rules for Courts-Martial (R.C.M.) Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 21 . . . . . . . . . . . . . . . . . . . A21–1 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 102(b) . . . . . . . . . . . . . . . . . . II–1 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 102(a) . . . . . . . . . . . . . . . . . . II–1 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 101(a) . . . . . . . . . . . . . . . . . . II–1 Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 101(b) . . . . . . . . . . . . . . . . . . II–1 Rules of court Authority to make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 108; 801(b)(1) . . . . . . . . . . . II–6; II–79 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(b)(1) . . . . . . . . . . . . . . . . II–79 Safeguard, forcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 26 . . . . . . . . . . . . . . . . . . . . I V–38 Safety of command, unit, place, or military property, endangering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Sale, unlawful, military property . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Sanity. See Mental capacity; Mental responsibility. Scene of accident, fleeing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 82 . . . . . . . . . . . . . . . . . . . . IV–132 Search and Seizure Abandoned property, seizure of . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(2) . . . . . . . . . . III–16 Adequate interest to challenge . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a) . . . . . . . . . . . . . III –8 Anal searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Authorization, when required . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Entry to, requirements for . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 How made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III– 11 Power to apprehend (Art. 7, UCMJ) . . . . . . . . . . . . . . R.C.M. 302(b) . . . . . . . . . . . . . . . . . . II–17 Probable cause to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Search incident to Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g) . . . . . . . . . . . . II I–14 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g)(2) . . . . . . . . . . I II–14 Warrant, when required . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Authorization to Apprehend, when required . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302 . . . . . . . . . . . . . . . . . . . . II–17 Search Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(f) . . . . . . . . . . . . . III–15 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(1) . . . . . . . . . . III –14 Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(e) . . . . . . . . . . . . . III –15 Power to grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–15 Power to search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(e) . . . . . . . . . . . . . III–15 Rules of evidence not applicable to determination . Mil. R. Evid. 1101(d) . . . . . . . . . . . III–52 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(c) . . . . . . . . . . . . . III–15 Seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d) . . . . . . . . . . . . III–16 Blood samples. See Body views and intrusions, this heading. Body views and intrusions Extraction of body fluid . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(a) . . . . . . . . . . . . . III–10 Inspections Body view during . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b) . . . . . . . . . . . . III–10 Index 54 MCM, 2016 INDEX
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Subject Ref. Page Urine production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–11 Intrusions for medical purposes . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(f) . . . . . . . . . . . . . III–11 Intrusions, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . II I–11 Intrusions into body cavities . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11 Medical qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(g) . . . . . . . . . . . . III–11 Visual examination of the body . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b) . . . . . . . . . . . . III–10 Border searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(b) . . . . . . . . . . . . III–12 Burden of proof General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(5) . . . . . . . . . . III–9 Government’s burden enhanced Consent, voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(5) . . . . . . . . . . III–13 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III– 11 On the accused Adequate interest, standing . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8 False statements, challenging probable cause . . . . . . Mil. R. Evid. 311(d)(4)(B) . . . . . . . III–9 Commander Neutral and detached . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–15 Power to authorize search . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(1) . . . . . . . . . . III–15 Confinement facilities, searches within . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(h) . . . . . . . . . . . . III–14 Consent Body views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b)(1) . . . . . . . . . . III– 10 Entry to apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2)(A) . . . . . . . . . . . . . II–18 To search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e) . . . . . . . . . . . . . III–13 To seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(3) . . . . . . . . . . III–16 Voluntariness, burden of proof . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(5) . . . . . . . . . . III–13 Who can consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(2) . . . . . . . . . . III–13 Derivative evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d) . . . . . . . . . . . . III–9 Detention, investigative of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(1) . . . . . . . . . . III–13 Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(6) . . . . . . . . . . III–16 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9 Eavesdropping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Emergency searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(i) . . . . . . . . . . . . . III–14 Entry and exit points Inspections at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . I II–11 Overseas, searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(c) . . . . . . . . . . . . . III –12 Entry to apprehend, requirements for . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2) . . . . . . . . . . . . . . . . II–18 Exclusionary rule General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(3) . . . . . . . . . . III–8 Wire and oral communications . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Exigent circumstances Entry to apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2)(B) . . . . . . . . . . . . . II–18 Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(g) . . . . . . . . . . . . III–16 Seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(5)(B) . . . . . . . . III–16 False statement in support of probable cause . . . . . . . . . . . Mil. R. Evid. 311(d)(4)(B) . . . . . . . III–9 Foreign officials, search by . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b)(3) . . . . . . . . . . III– 8 Frisks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(2) . . . . . . . . . . III–13 Government property Search of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(d) . . . . . . . . . . . . III–12 Seizure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(4) . . . . . . . . . . III–16 Guilty plea Conditional to preserve motions . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–106 Waiver by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e) . . . . . . . . . . . . . III–10 Impeachment by contradiction, using illegally seized evidence for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c)(1) . . . . . . . . . . III–9 Incident to apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g) . . . . . . . . . . . . I II–14 Inevitable discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c)(2) . . . . . . . . . . III–9 Informant, identity of, privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . I II–35 Inspections Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(a) . . . . . . . . . . . . . III–11 Visual examination of the body . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b) . . . . . . . . . . . . III–10 Intrusions, body cavities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11 Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(c) . . . . . . . . . . . . . III–12 Index 55 MCM, 2016INDEX
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Subject Ref. Page Investigative detentions. See Stops, investigative, this heading. Jails, confinement facilities, searches within . . . . . . . . . . . . Mil. R. Evid. 314(h) . . . . . . . . . . . . III–14 Law enforcement officials, nonmilitary . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b)(2) . . . . . . . . . . III–8 Magistrate, power to authorize searches . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–15 Medical qualifications, persons searching or seizing from body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(g) . . . . . . . . . . . . II I–11 Military judge, power to authorize searches . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–15 Motion to suppress See also Motions. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(1); 311(d) . . . III–8 ; III–9 Neutral and detached . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–15 Objections, evidence unlawfully seized . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(1); 311(d) . . . III–8; III–9 Offer of proof, false statements . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(4)(B) . . . . . . . III–9 Open fields or woodlands, search of . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(j) . . . . . . . . . . . . . III–14 Oral communications, interception of . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Plain view seizures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(5)(C) . . . . . . . . III–16 Private dwelling, entry to apprehend . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2) . . . . . . . . . . . . . . . . II–18 Probable cause Challenging the determination of False statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(4)(B) . . . . . . . III–9 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(4) . . . . . . . . . . III –9 Searches not requiring . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314 . . . . . . . . . . . . . . . III– 12 Searches requiring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315 . . . . . . . . . . . . . . . II I–14 To apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(c) . . . . . . . . . . . . . . . . . . II–18 To confine before trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(d) . . . . . . . . . . . . . . . . . . II– 21 To restrain before trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II –20 To search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(f)(1) . . . . . . . . . . I II–15 To seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(1) . . . . . . . . . . III–16 Search Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(1) . . . . . . . . . . III –14 Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(e)(2) . . . . . . . . . . II I–15 Power to conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(e) . . . . . . . . . . . . . III –15 Probable cause not required . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(a) . . . . . . . . . . . . . III–12 Probable cause required . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(a) . . . . . . . . . . . . . III–14 Unlawful, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b) . . . . . . . . . . . . III–8 Warrant, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(2) . . . . . . . . . . III–15 See also Authorization to, this heading. Seizure Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(3) . . . . . . . . . . III–16 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316 . . . . . . . . . . . . . . . III–16 Plain view . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(5)(B) . . . . . . . . III –16 Power to seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d) . . . . . . . . . . . . III –16 Probable cause to seize . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c)(1) . . . . . . . . . . III–16 Unlawful, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b) . . . . . . . . . . . . III–8 Standing to contest search or seizure . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8 Stops, investigative Frisks subsequent to . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(2) . . . . . . . . . . III–13 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(1) . . . . . . . . . . III–13 Property detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(c) . . . . . . . . . . . . . III –16 Search of vehicle subsequent to . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(3) . . . . . . . . . . III–13 Treaty obligations, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(c)(4) . . . . . . . . . . III –15 Urine, seizure Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–11 Vaginal search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c)(2) . . . . . . . . . . III–11 Vehicle, incident to a lawful stop . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(3) . . . . . . . . . . III–13 Vehicles, search of Upon probable cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(c)(3) . . . . . . . . . . III–15 Upon reasonable suspicion of weapons . . . . . . . . . . . . Mil. R. Evid. 314(f)(3) . . . . . . . . . . III–13 Visual examination of the body . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b) . . . . . . . . . . . . III–10 Voluntariness of consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(4) . . . . . . . . . . II I–13 Waiver Conditional guilty pleas . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–10 6 Index 56 MCM, 2016 INDEX
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Subject Ref. Page Failure to raise by timely motion . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(2)(A) . . . . . . . III–9 Guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e) . . . . . . . . . . . . . III–10 Warrant, search Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(2) . . . . . . . . . . III–15 Required for entry to apprehend . . . . . . . . . . . . . . . . . . R.C.M. 302(d)(2) . . . . . . . . . . . . . . . . II–18 Wire and oral communications, interception . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Secretary, Service Convening courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 22; 23; 24; UCMJ R.C.M. 504(b); 1302(a)(4) . . . . . . . . A2–8; II–51; II–191 Powers and responsibilities concerning review of courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1206 . . . . . . . . . . . . . . . . . . . II–186 Secret Information, privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25 Security Courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b) . . . . . . . . . . . . . . . . . . II–85 National. See National security. Police. See Law enforcement official. Record of trial, classification . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(h) . . . . . . . . . . . . . . . . . II–150 Sedition Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18 . . . . . . . . . . . . . . . . . . . . IV–26 Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Seizure of evidence See also Search and seizure. Destruction to prevent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 103 . . . . . . . . . . . . . . . . . . . IV–146 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316 . . . . . . . . . . . . . . . III–16 Self-defense Aggravated assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(1); 916(e)(2) . . . . . . . II–116 Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–117 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–116 Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(1) . . . . . . . . . . . . . . . . II–116 Loss of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(4) . . . . . . . . . . . . . . . . II–117 Other assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(3) . . . . . . . . . . . . . . . . II–116 Self-incrimination Accused’s failure to testify Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(1) . . . . . . . . . . III–4 Instructions concerning . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(3) . . . . . . . . . . III–4 Admissions. See Confessions and admissions, this heading. Advice to witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301 . . . . . . . . . . . . . . . III–3 Applicability of privilege against . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(a) . . . . . . . . . . . . . III –3 Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(6) . . . . . . . . . . III–6 Confessions and admissions Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a) . . . . . . . . . . . . . III–4 Admission defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(1)(C) . . . . . . . . III–4 Admissions by silence or failure to deny accusations of wrongdoing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(2) . . . . . . . . . . III–4 Admissions made during plea or plea discussion . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20 Burden of proof for admissibility . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(6) . . . . . . . . . . III–6 Coercion, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(1)(A) . . . . . . . III–4 Confession defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(1)(B) . . . . . . . . III–4 Corroboration required . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c) . . . . . . . . . . . . . III–5 Joint trial, effect on co-accused . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8 Oral confessions and admissions . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(i) . . . . . . . . . . . . . III–6 Standing to challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a) . . . . . . . . . . . . . III–4 Use of admissions made at conferences . . . . . . . . . . . . R.C.M. 802(e) . . . . . . . . . . . . . . . . . . II–82 Corroboration of confessions . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c) . . . . . . . . . . . . . III –5 Counsel rights and warnings Effect of request for counsel . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III–7 Notice to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . II I–7 Right to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III –7 Waiver of counsel rights . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(e) . . . . . . . . . . . . . III–7 When counsel rights warnings are required . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III–7 Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4 Derivative evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d); 304(f)(2) . . . . III –5 Disclosure by prosecution Accused’s statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d) . . . . . . . . . . . . III–5 Index 57 MCM, 2016INDEX
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Subject Ref. Page Immunity or leniency to a prosecution witness . . . . . Mil. R. Evid. 301(d)(2) . . . . . . . . . . III–3 Effect of claiming privilege against . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f) . . . . . . . . . . . . . III–4 Exclusionary rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a); 305(a) . . . . . . I II–4; III–6 Exception for impeachment . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5 Exercise of privilege against . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d) . . . . . . . . . . . . III– 3 Guilty plea Conditional, to preserve motions . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–106 Waiver by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e) . . . . . . . . . . . . . III–10 Immunity See also Immunity. Effect of grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d)(1) . . . . . . . . . . III –3 Notice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d)(2) . . . . . . . . . . III–3 Impeachment by contradiction, using involuntary statements Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5 Inadmissibility of accused’s pretrial claim of privilege against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(2) . . . . . . . . . . III–4 Interrogation By foreign officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(f)(2) . . . . . . . . . . III–8 By nonmilitary officials . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(f) . . . . . . . . . . . . . III–8 Custodial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(b)(3) . . . . . . . . . . III–7 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(b)(2) . . . . . . . . . . III–6 Notice to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . II I–7 Persons subject to UCMJ, defined . . . . . . . . . . . . . . . . Mil. R. Evid. 305(b)(1) . . . . . . . . . . III–6 Involuntary statements Burden of proof concerning . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(6) . . . . . . . . . . III–6 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(1)(A); 305(a) . III–4; III–6 Use of certain involuntary statements to impeach . . . Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5 Mental examination of accused, privilege concerning Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(b) . . . . . . . . . . . . III–4 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(a) . . . . . . . . . . . . . III–4 Noncompliance by accused . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(d) . . . . . . . . . . . . III–4 Procedure for claiming . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(e) . . . . . . . . . . . . . III–4 Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–37 Release of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(c) . . . . . . . . . . . . . III– 4 Motion to suppress See also Motions. Effect of guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(8) . . . . . . . . . . III–6 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a) . . . . . . . . . . . . . III–4 Rulings by military judge . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(5) . . . . . . . . . . III–6 Specificity required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(4) . . . . . . . . . . III–6 Testimony upon a preliminary matter . . . . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–5 Notice to accused of leniency or immunity given a prosecution witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d)(2) . . . . . . . . . . III –3 Notice to counsel of intended interrogation . . . . . . . . . . . . . Mil. R. Evid. 305(c); 305(d) . . . . . . III–7 Rights warnings Article 31, UCMJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III–7 Counsel warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III –7 Effect of failure to warn . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III–7 Standing to assert privilege against . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(b) . . . . . . . . . . . . III–3 Statements of co-accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8 Striking testimony after assertion of privilege against . . . . Mil. R. Evid. 301(e)(1) . . . . . . . . . . III–3 Testimony by accused on preliminary matter . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–5 Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(1)(A) . . . . . . . III–4 Waiver of privilege against By accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c) . . . . . . . . . . . . . III–3 By witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(e) . . . . . . . . . . . . . III–3 Waiver of rights Conditional guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–1 06 Failure to move to suppress . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(1) . . . . . . . . . . III–5 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(a) . . . . . . . . . . . . . III–6 Guilty plea, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(8) . . . . . . . . . . III–6 Self-injury, infliction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–58 Without intent to avoid service . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 103a . . . . . . . . . . . . . . . . . . IV–146 Selling military property, unlawfully . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–46 Semen Index 58 MCM, 2016 INDEX
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Subject Ref. Page Extraction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11 Source of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(b)(1)(A) . . . . . . . III–21 Sentence See also specific topics. Announcement of Findings, effect on reconsideration of . . . . . . . . . . . . . R.C.M. 924(a); 924(c) . . . . . . . . . . . II–125; II–126 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007 . . . . . . . . . . . . . . . . . . . II–142 Authorized punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b) . . . . . . . . . . . . . . . . . II–132 Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004 . . . . . . . . . . . . . . . . . . . II–136 Confinement, credit for illegal pretrial . . . . . . . . . . . . . . . . . R.C.M. 305(j)(2); 305(k) . . . . . . . . . II–25 Contempt, sentence for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–88 Convening authority’s action on Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(d) . . . . . . . . . . . . . . . . . II–161 Modification of initial action . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2) . . . . . . . . . . . . . . . II–164 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(b) . . . . . . . . . . . . . . . . . II–194 Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006 . . . . . . . . . . . . . . . . . . . II–140 Determination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1002 . . . . . . . . . . . . . . . . . . . II–131 Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113 . . . . . . . . . . . . . . . . . . . II–175 Forms of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 11 . . . . . . . . . . . . . . . . . . . A11–1 Impeachment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1008 . . . . . . . . . . . . . . . . . . . II–142 Instructions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1005 . . . . . . . . . . . . . . . . . . . II–139 Maximum limitations Chart of maximum punishments . . . . . . . . . . . . . . . . . . Appendix 12 . . . . . . . . . . . . . . . . . . . A12–1 Circumstances affecting increase . . . . . . . . . . . . . . . . . . R.C.M. 1003(d) . . . . . . . . . . . . . . . . . II–136 General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1) . . . . . . . . . . . . . . . . II –11 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003 . . . . . . . . . . . . . . . . . . . II–132 New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–90 Other trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–90 Rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–90 Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–190 Multiplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(c)(1)(C) . . . . . . . . . . . . II–137 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1009 . . . . . . . . . . . . . . . . . . . II–142 Reassessment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(e)(2)(B)(iii) . . . . . . . . . II–163 Reconsideration of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1009 . . . . . . . . . . . . . . . . . . . II–142 Unexecuted portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(b) . . . . . . . . . . . . . . . . . II–166 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006(d) . . . . . . . . . . . . . . . . . II–141 Sentence proceedings. See Presentencing procedure. Sentinel or lookout Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Misbehavior as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–56 Offenses against or by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–147 Separation See also Bad conduct-discharge; Dishonorable discharge; Dismissal. Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–9 Unlawful, effecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–10 Serious offense, misprision of . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 95 . . . . . . . . . . . . . . . . . . . . IV–139 Service Charges, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–57 Record of trial, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b) . . . . . . . . . . . . . . . . . II–153 Subpoena, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(D); 703(e)(2)(E) . II–6 8 Written motion, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(i) . . . . . . . . . . . . . . . . . . II–99 Services, obtaining under false pretenses . . . . . . . . . . . . . . . . . IV. Para. 78 . . . . . . . . . . . . . . . . . . . . IV–131 Sessions Article 39(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–82 Closed Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(2) . . . . . . . . . . . . . . . . II–85 Deliberations and vote, findings . . . . . . . . . . . . . . . . . . R.C.M. 921(a) . . . . . . . . . . . . . . . . . . II–123 Deliberations and vote, sentence . . . . . . . . . . . . . . . . . . R.C.M. 1006(a) . . . . . . . . . . . . . . . . . II–140 Objections to rulings of president . . . . . . . . . . . . . . . . . R.C.M. 801(e)(3)(C) . . . . . . . . . . . . . II–80 Control of spectators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(1) . . . . . . . . . . . . . . . . II–85 Opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901 . . . . . . . . . . . . . . . . . . . . II–93 Post-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102 . . . . . . . . . . . . . . . . . . . II–146 Index 59 MCM, 2016INDEX
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Subject Ref. Page Setting aside nonjudicial punishment . . . . . . . . . . . . . . . . . . . . V. Para. 6d . . . . . . . . . . . . . . . . . . . . V–8 Severance Charges, of Appeal of United States, effect of . . . . . . . . . . . . . . . . R.C.M. 908(b)(4) . . . . . . . . . . . . . . . . II–104 Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(10) . . . . . II–97; II–101 Co-accused, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(9) . . . . . . II–97; II–100 Sexual offense Evidence of character of victim . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412 . . . . . . . . . . . . . . . III–2 1 Evidence of similar crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 413; 414 . . . . . . . . . . III–2 2 Ship. See Vessel. Shore patrol. See Law enforcement official. Signing false official document or statement . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–45 Signing receipt without knowledge of facts . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–109 Sitting on post, sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–147 Sleeping on post, sentinel or lookout . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–56 Sodomy Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–118 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 51 . . . . . . . . . . . . . . . . . . . . IV–98 Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–60 Solicitation Attempt distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(5) . . . . . . . . . . . . . . . . . IV–5 Desertion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Mutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Other offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 105 . . . . . . . . . . . . . . . . . . . IV–148 Pandering distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6c(3) . . . . . . . . . . . . . . . . . IV–8 Sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–7 Special court-martial See also Specific topics. Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(2) . . . . . . . . . . . . . . . . II–45 Counsel Detail to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–45 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–46 Required to adjudge bad-conduct discharge . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2) . . . . . . . . . . . . . . . . II–12 Personnel of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501 . . . . . . . . . . . . . . . . . . . . II–45 President of, without military judge Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(15) . . . . . . . . . . . . . . . . . II–2 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(2) . . . . . . . . . . . . . . . . II–46 Procedural guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 8 . . . . . . . . . . . . . . . . . . . . A8–1 Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(c) . . . . . . . . . . . . . . . . . II–149 Referral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 404(d); 601 . . . . . . . . . . . . . II–34; II–55 Special defenses. See Defenses. Special findings In conjunction with general findings . . . . . . . . . . . . . . . . . . R.C.M. 918(b) . . . . . . . . . . . . . . . . . . II–121 Requirement for essential findings of fact in ruling on Motions, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(d) . . . . . . . . . . . . . . . . . . II–98 Motions to suppress Confessions and admissions . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f)(1) . . . . . . . . . . III–5 Evidence of eyewitness identification . . . . . . . . . . Mil. R. Evid. 321(a) . . . . . . . . . . . . . III–17 Product of search and seizure . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(7) . . . . . . . . . . III–10 Specifications. See Charges and specifications. Spectators Access to court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(a) . . . . . . . . . . . . . . . . . . II–85 Control of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b) . . . . . . . . . . . . . . . . . . II–85 Witnesses as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 615 . . . . . . . . . . . . . . . III–44 Speech, provoking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 42 . . . . . . . . . . . . . . . . . . . . I V–60 Speedy trial Accountability Inception of time period . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1) . . . . . . . . . . . . . . . . II–75 Termination of time period . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1) . . . . . . . . . . . . . . . . II–75 Arrest Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a)(2) . . . . . . . . . . . . . . . . II–75 Release from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(B) . . . . . . . . . . . . . II –75 Index 60 MCM, 2016 INDEX
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Subject Ref. Page Confinement, pretrial Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a)(2) . . . . . . . . . . . . . . . . II–75 Release from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(B) . . . . . . . . . . . . . II –75 Dismissal of charges Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(A) . . . . . . . . . . . . . II–75 Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(2)(B) . II–97; II– 102 Remedy for violation . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–7 6 Excluded periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–76 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707 . . . . . . . . . . . . . . . . . . . . II–75 Imposition of restraint, effect of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a)(2) . . . . . . . . . . . . . . . . I I–75 Mistrial, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(A) . . . . . . . . . . . . . II–75 Motion concerning Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B) . . . . . . . . . . . . . II– 97 Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(B) . . . . . . . . . . . . . II–102 Multiple charges, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(2) . . . . . . . . . . . . . . . . II–75 Preferral of charges, effect of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(2) . . . . . . . . . . . . . . . . II–75 Pretrial agreement, waiver of right not permitted . . . . . . . . R.C.M. 705(c)(1)(B) . . . . . . . . . . . . . II–72 Remedy for denial of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–76 Time periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a); 707(d) . . . . . . . . . . . II–75; II–76 Spies. See Spying. Spontaneous exclamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–46 Spouses, privilege as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24 Spying Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43 Votes required to convict . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(2)(A) . . . . . . . . . . . . . I I–123 Staff judge advocate See also Advice, pretrial. Charges and specifications, amendment by . . . . . . . . . . . . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . II–57 Communications with Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 105(a) . . . . . . . . . . . . . . . . . . II– 5 Judge Advocate General, The . . . . . . . . . . . . . . . . . . . . R.C.M. 105(b) . . . . . . . . . . . . . . . . . . II–5 Staff judge advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 105(b) . . . . . . . . . . . . . . . . . . II– 5 Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(17) . . . . . . . . . . . . . . . . . II–2 Execution of sentence, advice on . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(1) . . . . . . . . . . . . . . . II–175 Member, ineligible to serve as . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(G); 912(f)(1)(H) . . II–110 Military judge, disqualified after acting as . . . . . . . . . . . . . R.C.M. 902(b)(2) . . . . . . . . . . . . . . . . II–94 Pretrial agreement, negotiations . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(1) . . . . . . . . . . . . . . . . I I–73 Recommendations, post-trial Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(b) . . . . . . . . . . . . . . . . . II–157 Form and content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(d) . . . . . . . . . . . . . . . . . II– 157 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–157 No findings of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(e) . . . . . . . . . . . . . . . . . II–1 58 Not guilty, lack of mental responsibility . . . . . . . . . . . R.C.M. 1106(e) . . . . . . . . . . . . . . . . . II–158 Service on defense counsel . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(f) . . . . . . . . . . . . . . . . . II–158 Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45a . . . . . . . . . . . . . . . . . . . IV–66 Standing. See Search and seizure; Self-incrimination. State law Judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202(a) . . . . . . . . . . . . . III–2 Offenses under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60c(4)(c) . . . . . . . . . . . . . . IV–115 Statements Accused in presentencing proceedings . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(2) . . . . . . . . . . . . . . . II–129 Closing, by counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 919 . . . . . . . . . . . . . . . . . . . . II–121 Coercion of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a)(1)(A) . . . . . . . III–4 Disclosure by trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(C) . . . . . . . . . . . . . I I–59 Disloyal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 72 . . . . . . . . . . . . . . . . . . . . IV–127 False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 31; 57 . . . . . . . . . . . . . . . IV–46; IV–107 Hearsay. See Evidence, Hearsay. Inconsistent, for impeachment . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 613 . . . . . . . . . . . . . . . III –43 Limited admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2 Opening, by counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(b) . . . . . . . . . . . . . . . . . . II–112 Preliminary hearing, use in . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f) . . . . . . . . . . . . . . . . . . II–37 Production, after testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–113 Unsworn, by accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(2)(C) . . . . . . . . . . . . II –129 State records, authentication of . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–49; III–50 Index 61 MCM, 2016INDEX
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Subject Ref. Page Statutes, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202(a) . . . . . . . . . . . . . I II–2 Statutes of limitations (Art. 43, UCMJ) Motion to dismiss Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B) . . . . . . . . . . . . . II– 97 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(a) . . . . . . . . . . . . . . . . . . II–102 Tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(a) . . . . . . . . . . . . . . . . . . II–34 Statutory rape (Art. 120b, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–66 Steal. See Larceny. Stipulations Confessional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–72 Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(e) . . . . . . . . . . . . . . . . . . II–91 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–90 Kinds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(a) . . . . . . . . . . . . . . . . . . II–90 Military judge Authority to reject . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(b) . . . . . . . . . . . . . . . . . . II–90 Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(c) . . . . . . . . . . . . . . . . . . II–91 Military Rules of Evidence, applicability . . . . . . . . . . . . . . . R.C.M. 811(e) . . . . . . . . . . . . . . . . . . II–91 Pretrial agreement, term or condition of . . . . . . . . . . . . . . . R.C.M. 705(c)(2) . . . . . . . . . . . . . . . . II–72 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(f) . . . . . . . . . . . . . . . . . . II–91 Withdrawal from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(d) . . . . . . . . . . . . . . . . . . II–91 Stolen property, receiving, buying, concealing . . . . . . . . . . . . IV. Para. 106 . . . . . . . . . . . . . . . . . . . IV–148 Straggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 107 . . . . . . . . . . . . . . . . . . . IV–149 Striking See also Assault. Colors or flag (Art. 100, UCMJ) . . . . . . . . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV –36 Commissioned officer (Art. 90, UCMJ) . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–19 Noncommissioned, petty, or warrant officer (Art.91,UCMJ) IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 sua sponte , defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(18) . . . . . . . . . . . . . . . . . II–2 Subordinate compelling surrender (Art. 100, UCMJ) . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36 Subpoena (Art. 46 and 47, UCMJ) Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f)(4)(B) . . . . . . . . . . . . . II–69 Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 7 . . . . . . . . . . . . . . . . . . . . A7–1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703 . . . . . . . . . . . . . . . . . . . . II–65 Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(a) . . . . . . . . . . . . . . . . . . II–65 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2) . . . . . . . . . . . . . . . . II–67 Successor in command, included in “convening authority” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(6) . . . . . . . . . . . . . . . . . . II–1 Summary court-martial (Art. 17, UCMJ) Applicability of Military Rules of Evidence . . . . . . . . . . . . R.C.M. 1304(b)(2)(E) . . . . . . . . . . . . II–193 Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(a) . . . . . . . . . . . . . . . . . II–190 Convening By accuser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(b) . . . . . . . . . . . . . . . . . II–191 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(c) . . . . . . . . . . . . . . . . . II–191 Who may convene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(a) . . . . . . . . . . . . . . . . . II–1 91 Convening authority’s action . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(b) . . . . . . . . . . . . . . . . . I I–194 Counsel, right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–191 Evidence, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(f) . . . . . . . . . . . . . . . . . II–191 Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(b) . . . . . . . . . . . . . . . . . II–190 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter XIII . . . . . . . . . . . . . . . . . . . II–190 Jurisdiction over persons and offenses . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Military judge, included in definition of . . . . . . . . . . . . . . . R.C.M. 103(15) . . . . . . . . . . . . . . . . . II–2 Noncapital offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–190 Objection to trial by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1303 . . . . . . . . . . . . . . . . . . . II–191 Procedural guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 9 . . . . . . . . . . . . . . . . . . . . A9–1 Procedure Post-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306 . . . . . . . . . . . . . . . . . . . II–194 Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(a) . . . . . . . . . . . . . . . . . II–191 Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b) . . . . . . . . . . . . . . . . . II–192 Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–190 Record of trial Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(c) . . . . . . . . . . . . . . . . . II–194 Format . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 15 . . . . . . . . . . . . . . . . . . . A15–1 Forwarding copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(d) . . . . . . . . . . . . . . . . . II –194 Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(d); 1305 . . . . . . . . . . . II –149; II–195 Index 62 MCM, 2016 INDEX
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Subject Ref. Page Review by summary court-martial . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(2); 1305(a) . . . . . . . II–151; II–194 Referral of charges to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(4); 601(d)(1) . . . . . . II–3 4; II–55 Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(d)(1) . . . . . . . . . . . . . . . . II–55 By general court-martial convening authority . . . . . . . R.C.M. 407(a)(4) . . . . . . . . . . . . . . . . II–44 By special court-martial convening authority . . . . . . . . R.C.M. 404(d) . . . . . . . . . . . . . . . . . . II–34 By summary court-martial convening authority . . . . . . R.C.M. 403(b)(4) . . . . . . . . . . . . . . . . II–34 Review By a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(c) . . . . . . . . . . . . . . . . . II–1 95 By The Judge Advocate General . . . . . . . . . . . . . . . . . R.C.M. 1306(d) . . . . . . . . . . . . . . . . . II–195 Subpoena, authority to issue . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(C); 1301(f) . . . . . . II–68; II –191 Vacation of suspended sentence . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(e) . . . . . . . . . . . . . . . . . II–16 9 Witnesses, production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(f) . . . . . . . . . . . . . . . . . II–191 Supreme Court, Appeal of courts-martial (Art.67(h), UCMJ) . R.C.M. 1205 . . . . . . . . . . . . . . . . . . . II–186 Surrender Shameful (Art. 99, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33 Subordinate compelling (Art. 100, UCMJ) . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36 Suspension of military judge, counsel . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6 Suspension of nonjudicial punishment . . . . . . . . . . . . . . . . . . . V. Para. 6a . . . . . . . . . . . . . . . . . . . . V–7 Suspension of sentence Conditions of suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(c) . . . . . . . . . . . . . . . . . II–167 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108 . . . . . . . . . . . . . . . . . . . II–166 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(d) . . . . . . . . . . . . . . . . . II–167 Termination by remission . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(e) . . . . . . . . . . . . . . . . . II–167 Vacation of suspension Confinement pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(c) . . . . . . . . . . . . . . . . . II–1 68 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109 . . . . . . . . . . . . . . . . . . . II–167 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(d); 1109(e) . . . . . . . . . II– 168; II–169 Report of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 18 . . . . . . . . . . . . . . . . . . . A18 –1 Time for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(b) . . . . . . . . . . . . . . . . . II–167 Who may suspend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(b) . . . . . . . . . . . . . . . . . II–166 Swearing See also Oaths. False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 79 . . . . . . . . . . . . . . . . . . . . IV–131 Taking, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–87 See also Larceny. Telephone, tapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Television Broadcasting from courtroom . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . I I–86 Remote live testimony of a child . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; 914A Mil. R. Evid. 611(d) . . . . . . . . . . . . II–82; II–114; III–42 Testify Accused, failure to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(1) . . . . . . . . . . III–4 Wrongful refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 108 . . . . . . . . . . . . . . . . . . . IV–149 Testimony Expert. See Evidence, Expert. False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–107 See also Perjury. How taken in court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(2) . . . . . . . . . . . . . . . . I I–112 Interpreter, given through . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–41 Offer of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(2) . . . . . . . . . . III–1 Prior proceeding, admissibility at court-martial . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–48 Privileged, See Evidence, Privileges. Remote live testimony of a child . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; R.C.M. 914A; Mil. R. Evid. 611(d) . . . . . . . . . . . . . . . . . . . . II–82; II–114; III–42 Spouse of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24 Stipulation of expected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–90 Theft. See Larceny. Threat See also Extortion To cause panic or public fear . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 109 . . . . . . . . . . . . . . . . . . . IV–150 Communicating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 110 . . . . . . . . . . . . . . . . . . . IV–151 Time of war. See War. Travel order, form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 7 . . . . . . . . . . . . . . . . . . . . A7–1 Treaties, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 202 . . . . . . . . . . . . . . . II I–2 Index 63 MCM, 2016INDEX
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Subject Ref. Page Trial counsel See also Counsel. Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–84 Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(6); 901(b) . . . . . . . . . II–92; II–93 Assistant Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 502(d)(2); 503(c) . . II–45; II–46; II–50 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(5) . . . . . . . . . . . . . . . . II–47 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–87 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(2) . . . . . . . . . . . . . . . . II–46 Challenges against members, announcing grounds . . . . . . . R.C.M. 912(c) . . . . . . . . . . . . . . . . . . II–110 Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(1) . . . . . . . . . . . . . . . . II–53 Charges and specifications Authority to change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603 . . . . . . . . . . . . . . . . . . . . II–57 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–57 Deposition, attached for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(2) . . . . . . . . . . . . . . . . II–63 Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c) . . . . . . . . . . . . . . . . . . II–50 Disclosure to defense. See Disclosure and discovery. Disqualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4); 502(f); 901(d)(3) II–47 ; II–49; II–93 Disqualified to act as other court-martial personnel . . . . . . R.C.M. 502(e)(2)(D) . . . . . . . . . . . . . II–49 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(5) . . . . . . . . . . . . . . . . II–47 Evidence, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–69 Mental examination of accused, disclosure of results to . . R.C.M. 706(c)(3); 706(c)(5) . . . . . . . II–74; II–75 Oath Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–87 Unsworn previously . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(5) . . . . . . . . . . . . . . . . II– 94 Opening statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(b) . . . . . . . . . . . . . . . . . . II–112 Presence at court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803; 805 . . . . . . . . . . . . . . . . II–82; II–84 Qualifications Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(1) . . . . . . . . . . . . . . . . II –93 General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1) . . . . . . . . . . . . . . . . II –46 Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(2) . . . . . . . . . . . . . . . . II –46 Record of trial Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1) . . . . . . . . . . . . . . . II–150 Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 808; 1103(b)(1); 1103(c) . . II–88; II– 149 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b) . . . . . . . . . . . . . . . . . II–153 Result of trial, report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(a) . . . . . . . . . . . . . . . . . II–144 Service of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–57 Witnesses, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(c); 703(d); 703(e) . . . . II–66; I I–67 Unauthorized absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–13 See also Desertion. Unauthorized insignia, badge, ribbon, device, or lapel button, wearing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 113 . . . . . . . . . . . . . . . . . . . IV–153 Unauthorized pass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . I V–129 Uncharged misconduct Action with presented to court-martial . . . . . . . . . . . . . . . . . R.C.M. 801(d) . . . . . . . . . . . . . . . . . . II–79 Evidence, when admissible . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b); 608(b) . . . . . . III–19; III–41 Instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2 Uniform For courts-martial Accused, responsibility for . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(d)(1) . . . . . . . . . . . . . . . . II–83 Military judge, determination . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(1) . . . . . . . . . . . . . . . . II–78 Wearing unauthorized insignia, badge, ribbon, device, or lapel button . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 113 . . . . . . . . . . . . . . . . . . . IV–153 Uniform Code of Military Justice (UCMJ) . . . . . . . . . . . . . . . Appendix 2 . . . . . . . . . . . . . . . . . . . . A2–1 Failure to enforce or comply with . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV –32 Unit, separate or detached, defined . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(2)(A) . . . . . . . . . . . . . II–51 Unlawful apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32 Unlawful detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . I V–32 Unlawful enlistment, appointment, separation . . . . . . . . . . . . . IV. Paras. 7; 8 . . . . . . . . . . . . . . . . . IV–9; IV–10 Unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 111 . . . . . . . . . . . . . . . . . . . IV–152 Unsworn charges Amendment resulting in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603(d) . . . . . . . . . . . . . . . . . . II–57 Preferral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b) . . . . . . . . . . . . . . . . . . II–28 Unsworn statement Index 64 MCM, 2016 INDEX
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Subject Ref. Page Accused Preliminary hearing, right to make . . . . . . . . . . . . . . . . R.C.M. 405(i)(3)(A) . . . . . . . . . . . . . II–41 Presentencing proceeding, right to make . . . . . . . . . . . R.C.M. 1001(c)(2)(C) . . . . . . . . . . . . II–129 Use, wrongful, of controlled substance . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–53 Uttering forged instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 48 . . . . . . . . . . . . . . . . . . . . IV–92 Uttering worthless check . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 49 . . . . . . . . . . . . . . . . . . . . IV–94 Vacation of suspended punishment Confinement, pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(c) . . . . . . . . . . . . . . . . . II–168 General court-martial sentence . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(d) . . . . . . . . . . . . . . . . . I I–168 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109 . . . . . . . . . . . . . . . . . . . II–167 Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6a(4); 6a(5) . . . . . . . . . . . . V–7 Report of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 18 . . . . . . . . . . . . . . . . . . . A18–1 Special court-martial, bad-conduct discharge . . . . . . . . . . . . R.C.M. 1109(f) . . . . . . . . . . . . . . . . . II–170 Special court-martial sentence, no bad-conduct discharge . R.C.M. 1109(e) . . . . . . . . . . . . . . . . . II–169 Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(g) . . . . . . . . . . . . . . . . . II–170 Value, discussed under larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46c(1)(g) . . . . . . . . . . . . . . IV– 89 Vehicle Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103 . . . . . . . . . . . . . . . . . . . . II–1 Driving recklessly or while drunk . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–50 Venue. See Place of court-martial. Veracity, impeachment of witnesses. See Evidence, Impeachment. Verbatim record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b)(2)(B); 1103(c)(1) . . II–148; II–14 9 Verdict. See Findings. Vessel Hazarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 34 . . . . . . . . . . . . . . . . . . . . IV–49 Jumping from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 91 . . . . . . . . . . . . . . . . . . . . IV–137 Victim counsel Counsel for the accused request for victim interview victim, through . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e)(1) . . . . . . . . . . . . . . . . II–61 Delivering unsworn statement during presentencing . . . . . . R.C.M. 1001A . . . . . . . . . . . . . . . . . . II–131 Prohibition against less favorable rating . . . . . . . . . . . . . . . . R.C.M. 104(b)(1)(B) . . . . . . . . . . . . . II–5 Right to be heard through . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 3 0 5 ( i ) ( 2 ) ( A ) ( i v ) ; 9 0 6 ( b ) ( 6 ) ; Mil. R. Evid. 412(c)(2); 513(e)(2); 514(e)(2) . . . . . . . . . . . . . . . . . . . . . . . II–24; II–100; III–21; III–38; III–40 Videotaped record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(j) . . . . . . . . . . . . . . . . . II–151 Views and inspections, by court-martial . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–113 Violence, offering to superior commissioned officer . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–19 Voir dire See also Challenges. Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(d) . . . . . . . . . . . . . . . . . . II–110 Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(d)(2) . . . . . . . . . . . . . . . . II–95 Use of questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(a)(1) . . . . . . . . . . . . . . . . II–109 Voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–62 Voting. See Deliberations and voting. Waiver Appellate review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–172 Form for waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 19 . . . . . . . . . . . . . . . . . . . A 19–1 Argument, objections to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 919(c) . . . . . . . . . . . . . . . . . . II–122 By pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–73 Challenges Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(4) . . . . . . . . . . . . . . . . II–111 Peremptory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(g)(2) . . . . . . . . . . . . . . . . II–111 Selection of members . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(b)(3) . . . . . . . . . . . . . . . . II–11 0 Conditional guilty plea, effect on . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II– 106 Deposition Objections in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(h) . . . . . . . . . . . . . . . . . . II–65 Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(c)(3)(D) . . . . . . . . . . . . . II–63 Enlisted members, request for . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903(e) . . . . . . . . . . . . . . . . . . I I–96 Evidence, admissibility and objections . . . . . . . . . . . . . . . . . Mil. R. Evid. 103 . . . . . . . . . . . . . . . III–1 Guilty plea, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(4); 910(j) . . . . . . . . . I I–107; II–109 Instructions, objection to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(f); 1005(f) . . . . . . . . . . . II–123; II–140 Military judge alone, request for trial by . . . . . . . . . . . . . . R.C.M. 903(e) . . . . . . . . . . . . . . . . . . II–96 Motions, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e); 907(b)(2) . . . . . . . . . II–98; II–102 Index 65 MCM, 2016INDEX
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Subject Ref. Page Objections, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(g); Mil. R. Evid. 103 . II–81; I II–1 Recommendation of staff judge advocate, defect in, objections to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(f)(6) . . . . . . . . . . . . . . . II–159 Self-incrimination Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c) . . . . . . . . . . . . . III–3 Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(e) . . . . . . . . . . . . . III–3 War Judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2 Law of. See Law of War. Prosecution of, case affecting . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–33; II–44 Time of Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(19) . . . . . . . . . . . . . . . . . II–2 Element of offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 25; 29; 30 . . . . . . . . . . . . IV–37; IV–42; IV–43 Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 6; 9; 14; 38; 40 . . . . . . . IV–7; IV–10; I V–19; IV–56; IV–58 Warrant of attachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–1 Warrant officer Apprehension by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18 Assault on In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV– 100 Dishonorable discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(B) . . . . . . . . . . . . I I–134 Dismissal of commissioned . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–133 Disobedience of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Disrespect toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21 Member of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(1)(B) . . . . . . . . . . . . . I I–45 Restraint of, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b)(1) . . . . . . . . . . . . . . . . II–20 Warrant, search. See Search and seizure. Waste or spoilage, nonmilitary property . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–48 Weapon See also Assault; Firearm. Carrying concealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 112 . . . . . . . . . . . . . . . . . . . IV–152 Wearing unauthorized insignia, decoration, badge, ribbon, device or lapel button . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 113 . . . . . . . . . . . . . . . . . . . IV–153 Willful disobedience of orders . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 14; 15 . . . . . . . . . . . . . . . IV–19; IV–21 Wiretapping, evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16 Withdrawal Appellate review waiver, of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–172 Charges, of Authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(a) . . . . . . . . . . . . . . . . . . II–58 Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(b) . . . . . . . . . . . . . . . . . . II–58 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604 . . . . . . . . . . . . . . . . . . . . II–58 Mistrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(c)(1) . . . . . . . . . . . . . . . . II–115 Pretrial agreement, term of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–72 From conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c(6) . . . . . . . . . . . . . . . . . IV–7 From offense, as principal . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(7) . . . . . . . . . . . . . . . . . IV–2 From pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b) . . . . . . . . . . . . . . . . . . II–72 Guilty plea, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(1) . . . . . . . . . . . . . . . . II–108 Witness Access to, by parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–61 Appear, neglect or refusal to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II– 68 Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; 914A . . . . . . . . . . . . . . Mil. R. Evid. 611(d) . . . . . . . . . . . . II–82; II–114 Competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–40 Discovery. See Disclosure and discovery. Examination. See Questions; Testimony. Expert, employment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–67 Failure to call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(c) . . . . . . . . . . . . . . . . . . II–61 Immunity. See Immunity. Impeachment. See Evidence, Impeachment. Members, disqualified as . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(D) . . . . . . . . . . . . . II –110 Military judge, disqualified as . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(3) . . . . . . . . . . . . . . . . II–94 Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–87 Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–107 Index 66 MCM, 2016 INDEX
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Subject Ref. Page Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(1) . . . . . . . . . . . . . . . . II–65 Pretrial agreement concerning . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(B); 705(c)(2)(E) . II–72; II–73 Privileges. See Evidence, Privileges. Production of Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(c) . . . . . . . . . . . . . . . . . . II–66 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703 . . . . . . . . . . . . . . . . . . . . II–65 Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4); 906(b)(7) . . . . . . II–97; II–100 Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(1); 405(g)(2) . . . . . . II–38 Procedure for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e); Appendix 7 . . . . . . . II–67; A7–1 Rights of parties, court-martial . . . . . . . . . . . . . . . . . . . R.C.M. 703(b) . . . . . . . . . . . . . . . . . . II–65 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(e) . . . . . . . . . . . . . . . . . II–130 Subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2); Appendix 7 II–67; A7–1 Trial counsel, responsibility . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(c)(1); 703(c)(2)(D) . . . . II–66 Statements of, production . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–113 Unavailable at court–martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(3) . . . . . . . . . . . . . . . . II–66 Worthless checks. See Checks. Writings Authentication of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–49; III–50 Best evidence rule. See Evidence, Contents of writings, recordings, and photographs. Used to refresh memory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–43 Wrongful appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–87 Wrongful cohabitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 69 . . . . . . . . . . . . . . . . . . . . IV–125 Index 67 MCM, 2016INDEX
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UNCLASSIFIED MANUAL for COURTS-MARTIAL UNITED STATES (2016 EDITION)