Manual for courts martial united states

The amended version of Article 120 creates three separate sexual offense statutes: Article 120 for adult offenses; Article 120b for child offenses; and Article 120c for other sexual offe

MANUAL FOR COURTS-MARTIAL

(2012 EDITION)

The Manual for Courts-Martial (MCM), United States (2012 Edition) updates the MCM (2008 Edition)

It is a complete reprinting and incorporates the MCM (2008 Edition), including all amendments to the Rules for Courts-Martial, Military Rules of Evidence (Mil R Evid.), and Punitive Articles made by the President in Executive Orders (EO) from 1984 to present, and specifically including EO 13468 (24 July 2008); EO 13552

(31 August 2010); and EO 13593 (13 December 2011) See Appendix 25 This edition also contains

amendments to the Uniform Code of Military Justice (UCMJ) made by the National Defense Authorization Acts for Fiscal Years 2009 through 2012 Some of the significant changes are summarized and listed below This summary is for quick reference only and should not be relied upon or cited by practitioners in lieu of the actual provisions of the MCM that have been amended

The MCM (2012 Edition) includes unique changes warranting attention Discussion has been added or

amended to address changes in practice resulting from United States v Campbell, 71 M.J 19 (C.A.A.F 2012); United States v Fosler, 70 M.J 225 (C.A.A.F 2011); and United States v Jones, 68 M.J 465 (C.A.A.F 2010) See R.C.M 307(c)(3); R.C.M 307(c)(4); R.C.M 906(b)(12); R.C.M 907(b)(3)(B); R.C.M

910(a)(1); R.C.M 918(a)(1); R.C.M 1003(c)(1)(C); and in Part IV of this Manual, paragraph 3b, paragraph 60c(6)(a), and the discussion at page IV-1 The Discussion added in 2012 was a short-term solution intended

to address recent, broad changes in the law Although it may describe legal requirements derived from other sources, the Discussion does not have the force of law It is in the nature of a treatise, and may be used as secondary authority The Discussion will be revised from time to time as warranted by changes in applicable

law See Composition of the Manual for Courts-Martial in Appendix 21 of this Manual

Practitioners are advised that the Mil R Evid will be amended after the publication of this Manual and will take effect only after the President signs the relevant EO Once approved, the revised Mil R Evid will exist outside of this Manual until its next complete reprinting

Practitioners are also advised that Article 120 has been amended by the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December 2011 The amended version of Article 120 creates three separate sexual offense statutes: Article 120 for adult offenses; Article 120b for child offenses; and Article 120c for other sexual offenses Article 120a remains unchanged As of 2012, there are now three versions of Article 120, and each version is located in a different part of this Manual For offenses committed prior to 1 October 2007, the relevant sexual offense provisions are contained in Appendix 27 For offenses committed during the period 1 October 2007 through 27 June 2012, the relevant sexual offense provisions 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)

Rules for Courts-Martial (R.C.M.) in Part II of the MCM:

• R.C.M 103(20) was added to define the word “writing.”

• R.C.M 405(h)(3) was amended to move what was formerly in the Discussion into the Rule itself by requiring detailed analysis and findings of fact to support closure of the hearing

• R.C.M 1003(b)(3) was amended to address fines related to persons tried pursuant to Article 2(a)(10), U.C.M.J

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• R.C.M 1003(c)(4) was added to address punishment limits, other than fines, for persons tried pursuant to Article 2(a)(10), U.C.M.J Former subparagraph (c)(4) was renumbered as (c)(5)

• R.C.M 1103(b)(2)(B) was amended to remove the word “written” after the word “verbatim.”

• R.C.M 1103(e) was amended to add the words “termination after findings” to the title, but the actual text of the Rule was not changed

• R.C.M 1103(g)(1)(A) was amended to delete the “default” requirement to prepare four copies of the record

of trial and the requirement to prepare an original and one copy in all other general and special courts-martial

• R.C.M 1103(j)(2) was amended to clarify that the words “in writing” apply to both the transcript and the summary, and to refer the reader to R.C.M 103 for the definition of “writing.”

• R.C.M 1104(a)(1) was amended to provide instruction on authentication of an electronic record of trial

• R.C.M 1106 was amended in 2008 to change the contents required in subparagraph (d)(3); however, because of the words implementing the change in 2008, it was unclear whether subparagraphs (d)(4)-(6) were intended to be deleted or to remain Therefore, in 2010, subparagraph (d) was amended again to make clear that it should contain six subparts: (d)(1)-(6)

• R.C.M 1111(a)(1) was amended to provide for the forwarding of an electronic copy of the record of trial

• R.C.M 1113(d) was moved to subparagraph (e), and a new subparagraph (d) was added to address executing punishments

self-• R.C.M 1113(d)(2)(A)(iii) was amended to correct the reference to Article 57a(b)(1) rather than the incorrect Article 57(e)

• R.C.M 1113(d)(2)(C) was amended to include persons tried pursuant to Article 2(a)(10)

• R.C.M 1114 was amended by adding a new subsection (a)(4) to address self-executing final orders

• R.C.M 1305(b) was amended to delete the requirement to prepare an original and at least two copies of the record of trial and prepare instead a “written” record

• R.C.M 1305(c) was amended to allow the summary court-martial to sign any record of trial, not necessarily the original record, and to permit electronic signature

• R.C.M 1305(d)(1)(A) was amended to permit service of an electronic record of trial on the accused

• R.C.M 1306(b)(3) was amended to permit electronic signature by the convening authority

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Military Rules of Evidence (Mil R Evid.) in Part III of the MCM:

• Mil R Evid 504(c)(2)(D) was amended to address an exception where both parties have been substantial participants in illegal activities

• Mil R Evid 513(d)(2) was amended to remove the spouse abuse exception so that the privilege applies consistently in Mil R Evid 513 and 514

• Mil R Evid 514 was added to create a new victim advocate—victim privilege

• Mil R Evid 609(a) was amended to conform to the Federal Rules of Evidence by substituting the words

“character for truthfulness” for the word “credibility.”

• Mil R Evid 609(a)(2) was amended to conform to the Federal Rules of Evidence stylistic revision

• Mil R Evid 609(c) was amended to conform to the Federal Rules of Evidence stylistic revision Punitive articles contained in Part IV of the MCM:

• Paragraph 13, Article 89, was amended to substitute the words “uniformed service” for the words “armed force” and “armed forces.”

• Paragraph 14c(2)(g), Article 90, was amended to require immediate compliance of an order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed

• Paragraph 32c(1), Article 108, was amended to better define “military property” and better distinguish it from “government property.”

• Paragraph 35f, Article 111, was amended to modify the sample specification to be used in chemical analysis cases

• Paragraph 43a, Article 118, was amended to reflect modified terminology of sexual assault offenses from Article 120 and Article 120b

• Paragraph 44b, Article 119, was amended to add the optional element for a child victim

• Paragraph 44b(2)(d), Article 119, was amended to list the 2007 version of Article 120 sexual assault offenses; however, the 2008 MCM contained the same language already

• Paragraphs 44c(1)(c) and 44c(2)(c), Article 119, were added to explain the additional element and increased punishment for child victims

• Paragraph 44e(3) and 44e(4), Article 119, were added to prescribe maximum punishments for child victim cases

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• Paragraph 44f, Article 119, was amended to account for child victim cases

• Paragraph 45 was completely amended in accordance with National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December 2011

• Paragraphs 45.b and 45.c are new statutes added in accordance with National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December 2011

• Paragraph 46b(1)(d), Article 121, was amended to change the reference contained within the note from

“paragraph 32c(1)” to “paragraph 46.c.(1)(h).”

• Paragraph 48c(4) was amended to add the word “to” after the word “liability” in the fifth sentence

• Paragraph 46c(1)(h), Article 121, was added to define and explain “military property.” Former subparagraph c.(1)(h) was moved to subparagraph c.(1)(i)

• Paragraph 48c(4), Article 123, Forgery, was amended to add the word “to” after the word “liability” the second time it appears in the fifth sentence

• Paragraph 68b, Article 134, is a new offense added to proscribe child pornography

Other UCMJ Articles contained in Appendix 2 of the MCM:

• Article 1 was amended to delete the term “law specialist” and to amend the definitions of Coast Guard Judge Advocate and TJAG

• Article 47 was amended to provide a remedy for failure to comply with a subpoena duces tecum for an Article 32 investigation

• Article 48 was amended to broaden and expressly provide contempt power to a military judge

• Article 54 was amended to state that a copy of all records of proceedings shall be given to a sexual assault victim if the victim testified at the court-martial

• Article 120 was significantly restructured and broken into three new statutes: Article 120 for adult sex offenses; Article 120b for child sex offenses; and Article 120c for other sexual misconduct These changes take effect on 28 June 2012 The 2012 MCM will contain all three versions of Article 120 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 For offenses committed on or after 28 June 2012, see Part IV

CONTENTS

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PART I PREAMBLE

1 Sources of military jurisdiction

2 Exercise of military jurisdiction

(a) Kinds

(b) Agencies

3 Nature and purpose of military law

4 Structure and application of the Manual for Courts-Martial

PART II RULES FOR COURTS–MARTIAL CHAPTER I Rule 101 Scope, title

(a) In general

(b) Title

Rule 102 Purpose and construction

(a) Purpose

(b) Construction

Rule 103 Definitions and rules of construction

Rule 104 Unlawful command influence

(a) General prohibitions

(b) Prohibitions concerning evaluations

advocates; among staff judge advocates

(a) Convening authorities and staff judge advocates

(b) Among staff judge advocates and with the Judge Advocate General

Rule 106 Delivery of military offenders to civilian authorities

Rule 107 Dismissed officer’s right to request trial by court-martial

Rule 108 Rules of court

Rule 109 Professional supervision of military judges and counsel

(a) In general

(b) Action after suspension or disbarment

(c) Investigation of judges

CHAPTER II Rule 201 Jurisdiction in general

(a) Nature of courts-martial jurisdiction

(b) Requisites of court-martial jurisdiction

(c) Contempt

(d) Exclusive and nonexclusive jurisdiction

(e) Reciprocal jurisdiction

(f) Types of courts-martial

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(g) Concurrent jurisdiction of other military tribunals

Rule 202 Persons subject to the jurisdiction of courts-martial

(a) In general

(b) Offenses under the law of war

(c) Attachment of jurisdiction over the person

Rule 203 Jurisdiction over the offense

Rule 204 Jurisdiction over certain reserve component personnel

(a) Service regulations

(b) Courts-Martial

(c) Applicability

(d) Changes in type of service

CHAPTER III INITIATION OF CHARGES; APPREHENSION; PRETRIAL RESTRAINT; RELATED MATTERS Rule 301 Report of offense

(a) Who may report II-17 (b) To whom reports conveyed for disposition

Rule 302 Apprehension

(a) Definition and scope

(b) Who may apprehend II-17 (c) Grounds for apprehension

(d) How an apprehension may be made

(e) Where an apprehension may be made

Rule 303 Preliminary inquiry into reported offenses

Rule 304 Pretrial restraint

(a) Types of pretrial restraint

(b) Who may order pretrial restraint

(c) When a person may be restrained

(d) Procedures for ordering pretrial restraint

(e) Notice of basis for restraint

(f) Punishment prohibited

(g) Release

(h) Administrative restraint

Rule 305 Pretrial confinement

(a) In general

(b) Who may be confined

(c) Who may order confinement

(d) When a person may be confined

(e) Advice to the accused upon confinement

(f) Military counsel

(g) Who may direct release from confinement

(h) Notification and action by commander

(i) Procedures for review of pretrial confinement

(j) Review by military judge

(k) Remedy

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(l) Confinement after release

(m) Exceptions

Rule 306 Initial disposition

(a) Who may dispose of offenses

(b) Policy

(c) How offenses may be disposed of

(d) National security matters

Rule 307 Preferral of charges

(a) Who may prefer charges

(b) How charges are preferred; oath

(c) How to allege offenses

(d) Harmless error in citation

Rule 308 Notification to accused of charges

(a) Immediate commander

(b) Commanders at higher echelons

(c) Remedy

CHAPTER IV Rule 401 Forwarding and disposition of charges in general

(a) Who may dispose of charges

(b) Prompt determination

(c) How charges may be disposed of

(d) National security matters

Rule 402 Action by commander not authorized to convene courts-martial

Rule 403 Action by commander exercising summary court-martial jurisdiction (a) Recording receipt

(b) Disposition

Rule 404 Action by commander exercising special court-martial jurisdiction

Rule 405 Pretrial investigation

(a) In general

(b) Earlier investigation

(c) Who may direct investigation

(d) Personnel

(e) Scope of investigation

(f) Rights of the accused

(g) Production of witnesses and evidence; alternatives

(h) Procedure

(i) Military Rules of Evidence

(j) Report of investigation

(k) Waiver

Rule 406 Pretrial advice

(a) In general

(b) Contents

(c) Distribution

Rule 407 Action by commander exercising general court-martial jurisdiction

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(a) Disposition

(b) National security matters

CHAPTER V COURT-MARTIAL COMPOSITION AND PERSONNEL; CONVENING COURTS-MARTIAL Rule 501 Composition and personnel of courts-martial

(a) Composition of courts-martial

(b) Counsel in general and special courts-martial

(c) Other personnel

Rule 502 Qualifications and duties of personnel of courts-martial

(a) Members

(b) President

(c) Qualifications of military judge

(d) Counsel

(e) Interpreters, reporters, escorts, bailiffs, clerks, and guards

(f) Action upon discovery of disqualification or lack of qualifications

Rule 503 Detailing members, military judge, and counsel

(a) Members

(b) Military judge

(c) Counsel

Rule 504 Convening courts-martial

(a) In general

(b) Who may convene courts-martial

(c) Disqualification

(d) Convening orders

(e) Place

Rule 505 Changes of members, military judge, and counsel

(a) In general

(b) Procedure

(c) Changes of members

(d) Changes of detailed counsel

(e) Change of military judge

(f) Good cause

Rule 506 Accused’s rights to counsel

(a) In general

(b) Individual military counsel

(c) Excusal or withdrawal

(d) Waiver

(e) Nonlawyer present

CHAPTER VI Rule 601 Referral

(a) In general

(b) Who may refer II-52 (c) Disqualification

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(d) When charges may be referred

(e) How charges shall be referred

(f) Superior convening authorities

Rule 602 Service of charges

Rule 603 Changes to charges and specifications

(a) Minor changes defined

(b) Minor changes before arraignment

(c) Minor changes after arraignment

(d) Major changes

Rule 604 Withdrawal of charges

(a) Withdrawal

(b) Referral of withdrawn charges

CHAPTER VII Rule 701 Discovery

(a) Disclosure by the trial counsel

(b) Disclosure by the defense

(c) Failure to call witness

(d) Continuing duty to disclose

(e) Access to witnesses and evidence

(f) Information not subject to disclosure

(g) Regulation of discovery

(h) Inspect

Rule 702 Depositions

(a) In general

(b) Who may order II-59 (c) Request to take deposition

(d) Action when request is approved

(e) Notice

(f) Duties of the deposition officer

(g) Procedure

(h) Objections

(i) Deposition by agreement not precluded

Rule 703 Production of witnesses and evidence

(a) In general

(b) Right to witnesses

(c) Determining which witness will be produced

(d) Employment of expert witnesses

(e) Procedures for production of witnesses

(f) Right to evidence

Rule 704 Immunity

(a) Types of immunity

(b) Scope

(c) Authority to grant immunity

(d) Procedure

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(e) Decision to grant immunity

Rule 705 Pretrial agreements

(a) In general

(b) Nature of agreement

(c) Terms and conditions

(d) Procedure

(e) Nondisclosure of existence of agreement

Rule 706 Inquiry into the mental capacity or mental responsibility of the accused (a) Initial action

(b) Ordering an inquiry

(c) Inquiry

Rule 707 Speedy trial

(a) In general

(b) Accountability

(c) Excludable delay

(d) Remedy

(e) Waiver

CHAPTER VIII Rule 801 Military judge’s responsibilities; other matters

(a) Responsibilities of military judge

(b) Rules of court; contempt

(c) Obtaining evidence

(d) Uncharged offenses

(e) Interlocutory questions and questions of law

(f) Rulings on record

(g) Effect of failure to raise defenses or objections

Rule 802 Conferences

(a) In general

(b) Matters on record

(c) Rights of parties

(d) Accused’s presence

(e) Admission

(f) Limitations

Rule 803 Court-martial sessions without members under Article 39(a)

Rule 804 Presence of the accused at trial proceedings

(a) Presence required

(b) Presence by remote means

(c) Continued presence not required

(d) Voluntary absence for limited purpose of child testimony

(e) Appearance and security of accused

Rule 805 Presence of military judge, members, and counsel

(a) Military judge

(b) Members

(c) Counsel

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(d) Effect of replacement of member or military judge

Rule 806 Public trial

(a) In general

(b) Control of spectators and closure

(c) Photography and broadcasting prohibited

(d) Protective orders

Rule 807 Oaths

(a) Definition

(b) Oaths in courts-martial

Rule 808 Record of trial

Rule 809 Contempt proceedings

(a) In general

(b) Method of disposition

(c) Procedure

(d) Record; review

(e) Sentence

(f) Informing person held in contempt

Rule 810 Procedures for rehearings, new trials, and other trials

(a) In general

(b) Composition

(c) Examination of record of former proceedings

(d) Sentence limitations

(e) Definition

Rule 811 Stipulations

(a) In general

(b) Authority to reject

(c) Requirements

(d) Withdrawal

(e) Effect of stipulation

(f) Procedure

Rule 812 Joint and common trials

Rule 813 Announcing personnel of the court-martial and accused

(a) Opening sessions

(b) Later proceedings

(c) Additions, replacement, and absences of personnel

CHAPTER IX Rule 901 Opening session

(a) Call to order

(b) Announcement of parties

(c) Swearing reporter and interpreter

(d) Counsel

(e) Presence of members

Rule 902 Disqualification of military judge

(a) In general

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(b) Specific grounds

(c) Definitions

(d) Procedure

(e) Waiver

Rule 903 Accused’s elections on composition of court-martial

(a) Time of elections

(b) Form of election

(c) Action on election

(d) Right to withdraw request

(e) Untimely requests

(f) Scope

Rule 904 Arraignment

Rule 905 Motions generally

(a) Definitions and form

(b) Pretrial motions

(c) Burden of proof

(d) Ruling on motions

(e) Effect of failure to raise defenses or objections

(f) Reconsideration

(g) Effect of final determinations

(h) Written motions

(i) Service

(j) Application to convening authority

(k) Production of statements on motion to suppress

Rule 906 Motions for appropriate relief

(a) In general

(b) Grounds for appropriate relief

Rule 907 Motions to dismiss

(a) In general

(b) Grounds for dismissal

Rule 908 Appeal by the United States

(a) In general

(b) Procedure

(c) Appellate proceedings

(d) Military judge

Rule 909 Capacity of the accused to stand trial by court-martial

(a) In general

(b) Presumption of capacity

(c) Determination before referral

(d) Determination after referral

(e) Incompetence determination hearing

(f) Hospitalization of the accused

(g) Excludable delay

Rule 910 Pleas

(a) Alternatives

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(b) Refusal to plead; irregular plea

(c) Advice to accused

(d) Ensuring that the plea is voluntary

(e) Determining accuracy of plea

(f) Plea agreement inquiry

(g) Findings

(h) Later action

(i) Record of proceedings

(j) Waiver

Rule 911 Assembly of the court-martial

members

(a) Pretrial matters

(b) Challenge of selection of members

(c) Stating grounds for challenge

(d) Examination of members

(e) Evidence

(f) Challenges and removal for cause

(g) Peremptory challenges

(h) Special courts-martial without a military judge

(i) Definitions

Rule 913 Presentation of the case on the merits

(a) Preliminary instructions

(b) Opening statements

(c) Presentation of evidence

Rule 914 Production of statements of witnesses

(a) Motion for production

(b) Production of entire statement

(c) Production of excised statement

(d) Recess for examination of the statement

(e) Remedy for failure to produce statement

(f) Definition

Rule 914A Use of remote live testimony of a child

(a) General procedures

(b) Definition

(c) Prohibitions

Rule 914B Use of remote testimony

(a) General procedures

(b) Definition

Rule 915 Mistrial

(a) In general

(b) Procedure

(c) Effect of declaration of mistrial

Rule 916 Defenses

(a) In general

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(b) Burden of proof

(c) Justification

(d) Obedience to orders

(e) Self-defense

(f) Accident

(g) Entrapment

(h) Coercion or duress

(i) Inability

(j) Ignorance or mistake of fact

(k) Lack of mental responsibility

(l) Not defenses generally

Rule 917 Motion for a finding of not guilty

(a) In general

(b) Form of motion

(c) Procedure

(d) Standard

(e) Motion as to greater offense

(f) Effect of ruling

(g) Effect of denial on review

Rule 918 Findings

(a) General findings

(b) Special findings

(c) Basis of findings

Rule 919 Argument by counsel on findings

(a) In general

(b) Contents

(c) Waiver of objection to improper argument

Rule 920 Instructions on findings

(a) In general

(b) When given

(c) Requests for instructions

(d) How given

(e) Required instructions

(f) Waiver

Rule 921 Deliberations and voting on findings

(a) In general

(b) Deliberations

(c) Voting

(d) Action after findings are reached

Rule 922 Announcement of findings

(a) In general

(b) Findings by members

(c) Findings by military judge

(d) Erroneous announcement

(e) Polling prohibited

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Rule 923 Impeachment of findings

Rule 924 Reconsideration of findings

(a) Time for reconsideration

(b) Procedure

(c) Military judge sitting alone

CHAPTER X Rule 1001 Presentencing procedure

(a) In general

(b) Matter to be presented by the prosecution

(c) Matter to be presented by the defense

(d) Rebuttal and surrebuttal

(e) Production of witnesses

(f) Additional matters to be considered

(g) Argument

Rule 1002 Sentence determination

Rule 1003 Punishments

(a) In general

(b) Authorized punishments

(c) Limits on punishments

(d) Circumstances permitting increased punishments

Rule 1004 Capital cases

(a) In general

(b) Procedure

(c) Aggravating factors

(d) Spying

(e) Other penalties

Rule 1005 Instructions on sentence

(a) In general

(b) When given

(c) Requests for instructions

(d) How given

(e) Required instructions

(f) Waiver

Rule 1006 Deliberations and voting on sentence

(a) In general

(b) Deliberations

(c) Proposal of sentences

(d) Voting

(e) Action after a sentence is reached

Rule 1007 Announcement of sentence

(a) In general

(b) Erroneous announcement

(c) Polling prohibited

Rule 1008 Impeachment of sentence

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Rule 1009 Reconsideration of sentence

(a) Reconsideration

(b) Exceptions

(c) Clarification of sentence

(d) Action by the convening authority

(e) Reconsideration procedure

Rule 1010 Notice concerning post-trial and appellate rights

Rule 1011 Adjournment

CHAPTER XI POST-TRIAL PROCEDURE forfeitures and reduction in grade; waiver of Article 58b forfeitures

(a) Report of the result of trial

(b) Post-trial confinement

(c) Deferment of confinement, forfeitures or reduction in grade

support

Rule 1102 Post-trial sessions

(a) In general

(b) Purpose

(c) Matters not subject to post-trial sessions

(d) When directed

(e) Procedure

of mental responsibility

(a) In general

(b) Psychiatric or psychological examination and report

(c) Post-trial hearing

Rule 1103 Preparation of record of trial

(a) In general

(b) General courts-martial

(c) Special courts-martial

(d) Summary courts-martial

mental responsibility; termination prior to findings; termination after findings

(f) Loss of notes or recordings of the proceedings

(g) Copies of the record of trial

(h) Security classification

(i) Examination and correction before authentication

(j) Videotape and similar records

Rule 1103A Sealed exhibits and proceedings

(a) In general

(b) Examination of sealed exhibits and proceedings

Rule 1104 Records of trial: Authentication; service; loss; correction; forwarding (a) Authentication

(b) Service

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(c) Loss of record

(d) Correction of record after authentication; certificate of correction

(e) Forwarding

Rule 1105 Matters submitted by the accused

(a) In general

(b) Matters which may be submitted

(c) Time periods

(d) Waiver

Rule 1106 Recommendation of the staff judge advocate or legal officer

(a) In general

(b) Disqualification

(c) When the convening authority has no staff judge advocate

(d) Form and content of recommendation

responsibility

(f) Service of recommendation on defense counsel and accused; defense response

Rule 1107 Action by convening authority

(a) Who may take action

(b) General considerations

(c) Action on findings

(d) Action on the sentence

(e) Ordering rehearing or other trial

(f) Contents of action and related matters

(g) Incomplete, ambiguous, or erroneous action

(h) Service on accused

Rule 1108 Suspension of execution of sentence; remission

(a) In general

(b) Who may suspend and remit

(c) Conditions of suspension

(d) Limitations on suspension

(e) Termination of suspension by remission

Rule 1109 Vacation of suspension of sentence

(a) In general

(b) Timeliness

(c) Confinement of probationer pending vacation proceedings

(d) Vacation of suspended general court-martial sentence

or confinement for one year was not adjudged

(f) discharge or confinement for one year

(g) Vacation of a suspended summary court-martial sentence

Rule 1110 Waiver or withdrawal of appellate review

(a) In general

(b) Right to counsel

(c) Compulsion, coercion, inducement prohibited

(d) Form of waiver or withdrawal

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(e) To whom submitted

(f) Time limit

(g) Effect of waiver or withdrawal; substantial compliance required

Rule 1111 Disposition of the record of trial after action

(a) General courts-martial

(b) Special courts-martial

(c) Summary courts-martial

Rule 1112 Review by a judge advocate

(a) In general

(b) Exception

(c) Disqualification

(d) Form and content of review

(e) Forwarding to officer exercising general court-martial jurisdiction

(f) Action by officer exercising general court-martial jurisdiction

(g) Forwarding following review under this rule

Rule 1113 Execution of sentences

(a) In general

(b) Punishments which the convening authority may order executed in the initial action (c) Punishments which the convening authority may not order executed in the initial action (d) Self-executing punishments

(e) Other considerations concerning the execution of certain sentences

Rule 1114 Promulgating orders

(a) In general

(b) By whom issued

(c) Contents

(d) Orders containing classified information

(e) Authentication

(f) Distribution

CHAPTER XII Rule 1201 Action by the Judge Advocate General

(a) Cases required to be referred to a Court of Criminal Appeals

(b) Cases reviewed by the Judge Advocate General

(c) Remission and suspension

Rule 1202 Appellate counsel

(a) In general

(b) Duties

Rule 1203 Review by a Court of Criminal Appeals

(a) In general

(b) Cases reviewed by a Court of Criminal Appeals

(c) Action on cases reviewed by a Court of Criminal Appeals

(d) Notification to accused

(e) Cases not reviewed by the Court of Appeals for the Armed Forces

(f) Scope

Rule 1204 Review by the Court of Appeals for the Armed Forces

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(a) Cases reviewed by the Court of Appeals for the Armed Forces

(b) Petition by the accused for review by the Court of Appeals for the Armed Forces

(c) Action on decision by the Court of Appeals for the Armed Forces

Rule 1205 Review by the Supreme Court

(a) Cases subject to review by the Supreme Court

(b) Action by the Supreme Court

Rule 1206 Powers and responsibilities of the Secretary

(a) Sentences requiring approval by the Secretary

(b) Remission and suspension

Rule 1207 Sentences requiring approval by the President

Rule 1208 Restoration

(a) New trial

(b) Other cases

Rule 1209 Finality of courts-martial

(a) When a conviction is final

(b) Effect of finality

Rule 1210 New trial

(a) In general

(b) Who may petition II-176 (c) Form of petition

(d) Effect of petition

(e) Who may act on petition

(f) Grounds for new trial

(g) Action on the petition

(h) Action when new trial is granted

CHAPTER XIII Rule 1301 Summary courts-martial generally

(a) Composition

(b) Function

(c) Jurisdiction

(d) Punishments

(e) Counsel

(f) Power to obtain witnesses and evidence

(g) Secretarial limitations

Rule 1302 Convening a summary court-martial

(a) Who may convene summary courts-martial

(b) When convening authority is accuser

(c) Procedure

Rule 1303 Right to object to trial by summary court-martial

Rule 1304 Trial procedure

(a) Pretrial duties

(b) Summary court-martial procedure

Rule 1305 Record of trial

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(a) In general

(b) Contents

(c) Authentication

(d) Forwarding copies of the record

Rule 1306 Post-trial procedure

(a) Matters submitted by the accused

(b) Convening authority’s action

(c) Review by a judge advocate

(d) Review by the Judge Advocate General

PART III MILITARY RULES OF EVIDENCE

Rule 101 Scope

(a) Applicability

(b) Secondary Sources

(c) Rule of construction

Rule 102 Purpose and construction

Rule 103 Ruling on evidence

(a) Effect of erroneous ruling

(b) Record of offer and ruling

(c) Hearing of members

(d) Plain error

Rule 104 Preliminary questions

(a) Questions of admissibility generally

(b) Relevancy conditioned on fact

(c) Hearing of members

(d) Testimony by accused

(e) Weight and credibility

Rule 105 Limited admissibility

Rule 106 Remainder of or related writings or recorded statements

Rule 201 Judicial notice of adjudicative facts

(a) Scope of rule

(b) Kinds of facts

(c) When discretionary

(d) When mandatory

(e) Opportunity to be heard

(f) Time of taking notice

(g) Instructing members

Rule 201A Judicial notice of law

(a) Domestic law

(b) Foreign law

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INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION

Rule 301 Privilege concerning compulsory self-incrimination

(a) General rule

(b) Standing

(c) Exercise of the privilege

(d) Waiver by a witness

(e) Waiver by the accused

(f) Effect of claiming the privilege

(g) Instructions

Rule 302 Privilege concerning mental examination of an accused

(a) General rule

(b) Exceptions

(c) Release of evidence

(d) Noncompliance by the accused

(e) Procedure

Rule 303 Degrading questions

Rule 304 Confessions and admissions

(a) General rule

Rule 305 Warnings about rights

(a) General rule

(b) Definitions

(c) Warnings concerning the accusation, right to remain silent, and use of statements

(d) Counsel rights and warnings

(e) Presence of Counsel

(f) Exercise of rights

(g) Waiver

(h) Nonmilitary interrogations

Rule 306 Statements by one of several accused

Rule 311 Evidence obtained from unlawful searches and seizures

(a) General rule

(b) Exceptions

(c) Nature of search or seizure

(d) Motions to suppress and objections

(e) Burden of proof

(f) Defense evidence

(g) Scope of motions and objections challenging probable cause

(h) Objections to evidence seized unlawfully

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(i) Effect of guilty plea

Rule 312 Body views and intrusions

(a) General rule

(b) Visual examination of the body

(c) Intrusion into body cavities

(d) Extraction of body fluids

(e) Other intrusive searches

(f) Intrusions for valid medical purposes

(g) Medical qualifications

Rule 313 Inspections and inventories in the armed forces

(a) General rule

(b) Inspections

(c) Inventories

Rule 314 Searches not requiring probable cause

(a) General rule

(b) Border searches

abroad

(d) Searches of government property

(e) Consent searches

(f) Searches incident to a lawful stop

(g) Searches incident to a lawful apprehension

(h) Searches within jails, confinement facilities, or similar facilities

(i) Emergency searches to save life or for related purposes

(j) Searches of open fields or woodlands

(k) Other searches

Rule 315 Probable cause searches

(a) General rule

(b) Definitions

(c) Scope of authorization

(d) Power to authorize

(e) Power to search

(f) Basis for Search authorizations

(d) Seizure of property or evidence

(e) Power to seize

(f) Other seizures

Rule 317 Interception of wire and oral communications

(a) General rule

(b) Authorization for judicial applications in the United States

(c) Regulations

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Rule 321 Eyewitness identification

(a) General rule

(g) Effect of guilty pleas

Rule 401 Definition of “relevant evidence”

Rule 402 Relevant evidence general admissible; irrelevant evidence inadmissible

waste of time

crimes

(a) Character evidence generally

(b) Other crimes, wrongs, or acts

Rule 405 Methods of proving character

(a) Reputation or opinion

(b) Specific instances of conduct

(c) Affidavits

(d) Definitions

Rule 406 Habit; routine practice

Rule 407 Subsequent remedial measures

Rule 408 Compromise and offer to compromise

Rule 409 Payment of medical and similar expenses

Rule 410 Inadmissibility of pleas, plea discussions, and related statements

(c) Procedure to determine admissibility

Rule 413 Evidence of similar crimes in sexual assault cases

Rule 414 Evidence of similar crimes in child molestation cases

Rule 501 General rule

Rule 502 Lawyer-client privilege

(a) General rule of privilege

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Rule 503 Communications to clergy

(a) General rule of privilege

(b) Definitions

(c) Who may claim the privilege

Rule 504 Husband-wife privilege

(a) Spousal incapacity

(b) Confidential communication made during marriage

(c) Exceptions

(d) Definitions

Rule 505 Classified information

(a) General rule of privilege

(b) Definitions

(c) Who may claim the privilege

(d) Action prior to referral of charges

(e) Pretrial session

(f) Action after referral of charges

(g) Disclosure of classified information to the accused

(h) Notice of the accused’s intention to disclose classified information

(i) In camera proceedings for cases involving classified information

(j) Introduction of classified information

to courts-martial

Rule 506 Government information other than classified information

(a) General rule of privilege

(b) Scope

(c) Who may claim the privilege

(d) Action prior to referral of charges

(e) Pretrial session

(f) Action after motion for disclosure of information

(g) Disclosure of government information to the accused

(h) Prohibition against disclosure

(i) In camera proceedings

(j) Appeals of orders and rulings

(k) Introduction of government information subject to a claim of privilege

courts-martial

Rule 507 Identity of informant

(a) Rule of privilege

(b) Who may claim the privilege

(c) Exceptions

(d) Procedures

Rule 508 Political vote

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Rule 509 Deliberations of courts and juries

Rule 510 Waiver of privilege by voluntary disclosure

claim privilege

Rule 512 Comment upon or inference from claim of privilege; instruction

(a) Comment or inference not permitted

(b) Claiming privilege without knowledge of members

(c) Instruction

Rule 513 Psychotherapist-patient privilege

(a) General rule of privilege

(b) Definitions

(c) Who may claim the privilege

(d) Exceptions

(e) Procedure to determine admissibility of patient records or communications

Rule 514 Victim advocate-victim privilege

(a) General rule of privilege

Rule 601 General rule of competency

Rule 602 Lack of personal knowledge

Rule 603 Oath or affirmation

Rule 604 Interpreters

Rule 605 Competency of military judge as witness

Rule 606 Competency of court member as witness

(a) At the court-martial

(b) Inquiry into validity of findings or sentence

Rule 607 Who may impeach

Rule 608 Evidence of character, conduct, and bias of witness

(a) Opinion and reputation evidence of character

(b) Specific instances of conduct

(c) Evidence of bias

Rule 609 Impeachment by evidence of conviction of crime

(a) General rule

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Rule 611 Mode and order of interrogation and presentation

(a) Control by the military judge

(b) Scope of cross-examination

(c) Leading questions

(d) Remote live testimony of a child

Rule 612 Writing used to refresh memory

Rule 613 Prior statements of witnesses

(a) Examining witness concerning prior statement

(b) Extrinsic evidence of prior inconsistent statement of witness

Rule 614 Calling and interrogation of witnesses by the court-martial

(a) Calling by the court-martial

(b) Interrogation by the court-martial

(c) Objections

Rule 615 Exclusion of witnesses

Rule 701 Opinion testimony by lay witnesses

Rule 702 Testimony by experts

Rule 703 Bases of opinion testimony by experts

Rule 704 Opinion on ultimate issue

Rule 705 Disclosure of facts or data underlying expert opinion

Rule 706 Court appointed experts

(a) Appointment and compensation

(b) Disclosure of employment

(c) Accused’s experts of own selection

Rule 707 Polygraph Examinations

Rule 801 Definitions

(a) Statement

(b) Declarant

(c) Hearsay

(d) Statements which are not hearsay

Rule 802 Hearsay rule

Rule 803 Hearsay exceptions; availability of declarant immaterial

(1) Present sense impression

(2) Excited utterance

(3) Then existing mental, emotional, or physical condition

(4) Statements for purposes of medical diagnosis or treatment

(5) Recorded recollection

(6) Records of regularly conducted activity

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6)

(8) Public records and reports

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(9) Records of vital statistics

(10) Absence of public record or entry

(11) Records of religious organizations

(12) Marriage, baptismal, and similar certificates

(13) Family records

(14) Records of documents affecting an interest in property

(15) Statements in documents affecting an interest in property

(16) Statements in ancient documents

(17) Market reports, commercial publications

(18) Learned treatises

(19) Reputation concerning personal or family history

(20) Reputation concerning boundaries or general history

(21) Reputation as to character

(22) Judgment of previous conviction

(23) Judgment as to personal, family or general history, or boundaries

(24) Other exceptions

Rule 804 Hearsay exceptions; declarant unavailable

(a) Definitions of unavailability

(b) Hearsay exceptions

Rule 805 Hearsay within hearsay

Rule 806 Attacking and supporting credibility of declarant

Rule 807 Residual exception

Rule 901 Requirement of authentication or identification

(a) General provision

(b) Illustrations

Rule 902 Self-authentication

(1) Domestic public documents under seal

(2) Domestic public documents not under seal

(3) Foreign public documents

(4) Certified copies of public records

(4a) Documents or records of the United States accompanied by attesting certificates

(5) Official publications

(6) Newspapers and periodicals

(7) Trade inscriptions and the like

(8) Acknowledged documents

(9) Commercial paper and related documents

(10) Presumptions under Acts of Congress and regulations

(11) Certified domestic records of regularly conducted activity

Rule 903 Subscribing witness’ testimony unnecessary

Rule 1001 Definitions

(1) Writings and recordings

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(2) Photographs

(3) Original

(4) Duplicate

Rule 1002 Requirement of an original

Rule 1003 Admissibility of duplicates

Rule 1004 Admissibility of other evidence of contents

(1) Originals lost or destroyed

(2) Original not obtainable

(3) Original in possession of opponent

(4) Collateral matters

Rule 1005 Public records

Rule 1006 Summaries

Rule 1007 Testimony or written admission of party

Rule 1008 Functions of military judge and members

Rule 1101 Applicability of rules

(a) Rules applicable