2004 Amendments to the Manual for Courts-Martial, United States

Executive Order 13365 of December 3, 2004

2004 Amendments to the Manual for Courts-Martial,
                United States

                By the authority vested in me as President by the
                Constitution and the laws of the United States of
                America, including chapter 47 of title 10, United
                States Code (Uniform Code of Military Justice, 10
                U.S.C. 801-946), and in order to prescribe amendments
                to the Manual for Courts-Martial, United States,
                prescribed by Executive Order 12473, as amended, it is
                hereby ordered as follows:

                Section 1. (a) Paragraph 4 of the Preamble to Part I of
                the Manual for Courts-Martial, United States, is
                amended by adding a third subparagraph to read as
                follows:

                    “The Department of Defense Joint Service Committee
                (JSC) on Military Justice reviews the Manual for
                Courts-Martial and proposes amendments to the
                Department of Defense for con sideration by the
                President on an annual basis. In conducting its annual
                review, the JSC is guided by DoD Directive 5500.17,
                “The Roles and Responsibilities of the Joint Service
                Committee (JSC) on Military Justice.” DoD Directive
                5500.17 includes provisions allowing public
                participation in the annual review process.”
                    (b) Department of Defense Directive 5500.17 shall
                be included as Appendix 26 to the Manual for Courts-
                Martial, United States.

                Sec. 2. Part II of the Manual for Courts-Martial,
                United States, is amended as follows:

                    (a) R.C.M. 307(c)(3) is amended to read as follows:

  “Specification. A specification is a plain, concise, and definite
statement of the essential facts constituting the offense charged. A
specification is sufficient if it alleges every element of the charged
offense expressly or by necessary implication. Except for aggravating
factors under R.C.M. 1003(d) and R.C.M. 1004, facts that increase the
maximum authorized punishment must be alleged in order to permit the
possible increased punishment. No particular format is required.”

                    (b) R.C.M. 707(b)(3)(D) is amended to read as
                follows:

  “Rehearings. If a rehearing is ordered or authorized by an appellate
court, a new 120-day time period under this rule shall begin on the date
that the responsible convening authority receives the record of trial and
the opinion authorizing or directing a rehearing. An accused is brought to
trial within the meaning of this rule at the time of arraignment under
R.C.M. 904 or, if arraignment is not required (such as in the case of a
sentence-only rehearing), at the time of the first session under R.C.M.
803.”

                    (c) R.C.M. 707(c) is amended to read as follows:

  “(c) Excludable delay. All periods of time during which appellate courts
have issued stays in the proceedings, or the accused is absent without
authority, or the accused is hospitalized due to incompetence, or is
otherwise in the custody of the Attorney General, shall be excluded when
determining whether the period in subsection (a) of this rule has run. All
other pretrial delays approved by a military judge or the convening
authority shall be similarly excluded.”

                    (d) R.C.M. 707(d) is amended to read as follows:

  “(d) Remedy. A failure to comply with this rule will result in dismissal
of the affected charges, or, in a sentence-only rehearing, sentence relief
as appropriate.

                      “(1) Dismissal. Dismissal will be with or
                    without prejudice to the government's right to
                    reinstitute court-martial proceedings against the
                    accused for the same offense at a later date. The
                    charges must be dismissed with prejudice where the
                    accused has been deprived of his or her
                    constitutional right to a speedy trial. In
                    determining whether to dismiss charges with or
                    without prejudice, the court shall consider, among
                    others, each of the following factors: the
                    seriousness of the offense; the facts and
                    circumstances of the case that lead to dismissal;
                    the impact of a re-prosecution on the
                    administration of justice; and any prejudice to the
                    accused resulting from the denial of a speedy
                    trial.
                      “(2) Sentence relief. In determining whether or
                    how much sentence relief is appropriate, the
                    military judge shall consider, among others, each
                    of the following factors: the length of the delay,
                    the reasons for the delay, the accused's demand for
                    speedy trial, and any prejudice to the accused from
                    the delay. Any sentence relief granted will be
                    applied against the sentence approved by the
                    convening authority.”

                    (e) R.C.M. 806(b) is amended to read as follows:

  “(b) Control of spectators and closure.

                      “(1) Control of spectators. In order to maintain
                    the dignity and decorum of the proceedings or for
                    other good cause, the military judge may reasonably
                    limit the number of spectators in, and the means of
                    access to, the courtroom, and exclude specific
                    persons from the courtroom. When excluding specific
                    persons, the military judge must make findings on
                    the record establishing the reason for the
                    exclusion, the basis for the military judge's
                    belief that exclusion is necessary, and that the
                    exclusion is as narrowly tailored as possible.
                      “(2) Closure. Courts-martial shall be open to
                    the public unless (1) there is a substantial
                    probability that an overriding interest will be
                    prejudiced if the proceedings remain open; (2)
                    closure is no broader than necessary to protect the
                    overriding interest; (3) reasonable alternatives to
                    closure were considered and found inadequate; and
                    (4) the military judge makes case-specific findings
                    on the record justifying closure.”

                    (f) R.C.M. 916(k)(2) is amended to read as follows:

  “(2) Partial mental responsibility. A mental condition not amounting to
a lack of mental responsibility under subsection (k)(1) of this rule is not
an affirmative defense.”

                    (g) R.C.M. 1103(f)(2) is amended to read as
                follows:

  “(2) Direct a rehearing as to any offense of which the accused was found
guilty if the finding is supported by the summary of the evidence contained
in the record, provided that the convening authority may not approve any
sentence imposed at such a rehearing more severe than or in excess of that
adjudged by the earlier court-martial.”

                    (h) The following subsection (iv) is inserted after
                R.C.M. 1107(e)(1)(B)(iii) to read as follows:

  “(iv) Sentence reassessment. If a superior authority has approved some
of the findings of guilty and has authorized a rehearing as to other
offenses and the sentence, the convening authority may, unless otherwise
directed, reassess the sentence based on the approved findings of guilty
and dismiss the remaining charges. Reassessment is appropriate only where
the convening authority determines that the accused's sentence would have
been at least of a certain magnitude had the prejudicial error not been
committed and the reassessed sentence is appropriate in relation to the
affirmed findings of guilty.”

                    (i) R.C.M. 1108(b) is amended to read as follows:

  “(b) Who may suspend and remit. The convening authority may, after
approving the sentence, suspend the execution of all or any part of the
sentence of a court-martial, except for a sentence of death. The general

court-martial convening authority over the accused at the time of the
court-martial may, when taking the action under R.C.M. 1112(f), suspend or
remit any part of the sentence. The Secretary concerned and, when
designated by the Secretary concerned, any Under Secretary, Assistant
Secretary, Judge Advocate General, or commanding officer may suspend or
remit any part or amount of the unexecuted part of any sentence other than
a sentence approved by the President or a sentence of confinement for life
without eligibility for parole that has been ordered executed. The
Secretary concerned may, however, suspend or remit the unexecuted part of a
sentence of confinement for life without eligibility for parole only after
the service of a period of confinement of not less than 20 years. The
commander of the accused who has the authority to convene a court-martial
of the kind that adjudged the sentence may suspend or remit any part of the
unexecuted part of any sentence by summary court-martial or of any sentence
by special court-martial that does not include a bad-conduct discharge
regardless of whether the person acting has previously approved the
sentence. The “unexecuted part of any sentence” is that part that has
been approved and ordered executed but that has not actually been carried
out.”

                    (j) R.C.M. 1305(c) is amended to read as follows:

  “(c) Authentication. The summary court-martial shall authenticate the
record by signing the original record of trial.”

                    (k) R.C.M. 1306(b)(1) is amended to read as
                follows:

  “(1) Who shall act. Except as provided herein, the convening authority
shall take action in accordance with R.C.M. 1107. The convening authority
shall not take action before the period prescribed in R.C.M. 1105(c)(2) has
expired, unless the right to submit matters has been waived under R.C.M.
1105(d).”

                Sec. 3. Part III of the Manual for Courts-Martial,
                United States, is amended as follows:

                    (a) Mil. R. Evid. 103(a)(2) is amended to read as
                follows:

  “(2) Offer of proof. In case the ruling is one excluding evidence, the
substance of the evidence was made known to the military judge by offer or
was apparent from the context within which questions were asked. Once the
military judge makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal. The
standard provided in this subdivision does not apply to errors involving
requirements imposed by the Constitution of the United States as applied to
members of the armed forces except insofar as the error arises under these
rules and this subdivision provides a standard that is more advantageous to
the accused than the constitutional standard.”

                    (b) Mil. R. Evid. 404(a) is amended to read as
                follows:

  “(a) Character evidence generally. Evidence of a person's character or a
trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except:

                      “(1) Character of accused. Evidence of a
                    pertinent trait of character offered by an accused,
                    or by the prosecution to rebut the same, or if
                    evidence of a pertinent trait of character of the
                    alleged victim of the crime is offered by an
                    accused and admitted under Mil. R. Evid. 404(a)(2),
                    evidence of the same trait of character, if
                    relevant, of the accused offered by the
                    prosecution;
                      “(2) Character of alleged victim. Evidence of a
                    pertinent trait of character of the alleged victim
                    of the crime offered by an accused, or by the
                    prosecution to rebut the same, or evidence of a
                    character trait of peacefulness of the alleged
                    victim offered by the prosecution in a homicide or
                    assault case to rebut evidence that the alleged
                    victim was an aggressor;
                      “(3) Character of witness. Evidence of the
                    character of a witness, as provided in Mil. R.
                    Evid. 607, 608, and 609.”

                    (c) Mil. R. Evid. 701 is amended to read as
                follows:

  “If the witness is not testifying as an expert, the witness' testimony
in the form of opinions or inferences is limited to those opinions or
inferences that are (a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) not based in scientific,
technical, or other specialized knowledge within the scope of Rule 702.”

                    (d) Mil. R. Evid. 702 is amended to read as
                follows:

  “If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of
the case.”

                    (e) Mil. R. Evid. 703 is amended to read as
                follows:

  “The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert,
at or before the hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon the subject,
the facts or data need not be admissible in evidence in order for the
opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the members by the proponent of the
opinion or inference unless the military judge determines that their
probative value in assisting the members to evaluate the expert's opinion
substantially outweighs their prejudicial effect.”

                    (f) Mil. R. Evid. 803(6) is amended to read as
                follows:

  “Records of regularly conducted activity. A memorandum, report, record,
or data compilation, in any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information transmitted by,
a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business
activity to make the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other qualified witness, or
by certification that complies with Mil. R. Evid. 902(11) or any other
statute permitting certification in a criminal proceeding in a court of the
United States, unless the source of the information or the method or
circumstances of preparation indicate a lack of trustworthiness. The term
“business” as used in this paragraph includes the armed forces, a
business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit. Among those memoranda,
reports, records, or data compilations normally admissible pursuant to this
paragraph are enlistment papers, physical examination papers, outline-
figure and fingerprint cards, forensic laboratory reports, chain of custody
documents, morning reports and other personnel accountability documents,
service records, officer and enlisted qualification records, logs, unit
personnel diaries, individual equipment records, daily strength records of
prisoners, and rosters of prisoners.”

                    (g) The following subsection (11) is inserted after
                Mil. R. Evid. 902(10) to read as follows:

  “(11) Certified domestic records of regularly conducted activity. The
original or a duplicate of a domestic record of regularly conducted
activity that would be admissible under Mil. R. Evid. 803(6) if accompanied
by a written declaration of its custodian or other qualified person, in a
manner complying with any Act of Congress or rule prescribed by the Supreme
Court pursuant to statutory authority, certifying that the record (A) was
made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and (C) was
made by the regularly conducted activity as a regular practice. A party
intending to offer a record into evidence under this

paragraph must provide written notice of that intention to all adverse
parties, and must make the record and declaration available for inspection
sufficiently in advance of their offer into evidence to provide an adverse
party with a fair opportunity to challenge them.”

                    (h) Mil. R. Evid. 1102 is amended to read as
                follows:

  “(a) Amendments to the Federal Rules of Evidence shall apply to the
Military Rules of Evidence 18 months after the effective date of such
amendments, unless action to the contrary is taken by the President.

  “(b) Rules Determined Not To Apply. The President has determined that
the following Federal Rules of Evidence do not apply to the Military Rules
of Evidence: Rules 301, 302, 415, and 902(12).”

                Sec. 4. Part IV of the Manual for Courts-Martial,
                United States, is amended as follows:

                    (a) Paragraph 45(b)(2) is amended by deleting
                paragraph 45(b)(2)(c) and inserting the following after
                paragraph 45(b)(2)(b):

  “(c)(1) That at the time of the sexual intercourse 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.”

                    (b) Paragraph 45(f) is amended to read as follows:

  “f. Sample specifications.

  “(1) Rape.

  “In that ------------------------ (personal jurisdiction data), did,
(at/on board--location) (subject-matter jurisdiction data, if required), on
or about ------------ 20------, 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 jurisdiction data), did,
(at/on board--location) (subject-matter jurisdiction data, if required), on
or about ---------------- 20------, 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).”

                    (c) Paragraph 51(b) is amended to read as follows:

  “(1) That the accused engaged in unnatural carnal copulation with a
certain other person or with an animal.

  “(Note: Add any of the following as applicable)

  “(2) That the act was done with a child under the age of 12.

  “(3) That the act was done with a child who had attained the age of 12
but was under the age of 16.

  “(4) That the act was done by force and without the consent of the other
person.”

                    (d) Paragraph 51(f) is amended to read as follows:

  “f. Sample specification.

  “In that ------------------------ (personal jurisdiction data), did,
(at/on board--location) (subject-matter jurisdiction data, if required), on
or about ---------------- 20------, commit sodomy with --------------------
----, (a child under the age of 12) (a child who had attained the age of 12
but was under the age of 16) (by force and without the consent of the said
------------------------).”

                    (e) Paragraph 57(c)(2)(b) is amended to read as
                follows:

  “(b) Material matter. The false testimony must be with respect to a
material matter, but that matter need not be the main issue in the case.
Thus, perjury may be committed by giving false testimony with respect to
the credibility of a material witness or in an affidavit in support of a
request for a continuance, as well as by giving false testimony with
respect to a fact from which a legitimate inference may be drawn as to the
existence or nonexistence of a fact in issue.”

                    (f) Paragraph 100a(c)(1) is amended to read as
                follows:

  “(1) In general. This offense is intended to prohibit and therefore
deter reckless or wanton conduct that wrongfully creates a substantial risk
of death or grievous bodily harm to others.”

                    (g) Paragraph 100a(f) is amended to read as
                follows:

  “f. Sample specification.

  “In that ------------------------ (personal jurisdiction data), did,
(at/on board--location) (subject-matter jurisdiction data, if required), on
or about ---------------- 20------, wrongfully and (recklessly) (wantonly)
engage in conduct, to wit: (describe conduct), conduct likely to cause
death or grievous bodily harm to ------------------------.”

                Sec. 5. These amendments shall take effect 30 days from
                the date of this order.

                    (a) Nothing in these amendments shall be construed
                to make punishable any act done or omitted prior to the
                effective date of this order that was not punishable
                when done or omitted.
                    (b) Nothing in these amendments shall be construed
                to invalidate any nonjudicial punishment proceeding,
                restraint, investigation, referral of charges, trial in
                which arraignment occurred, or other action begun prior
                to the effective date of this order, and any such
                nonjudicial proceeding, restraint, investigation,
                referral of charges, trial, or other action may proceed
                in the same manner and with the same effect as if these
                amendments had not been prescribed.

                    (Presidential Sig.)B

                THE WHITE HOUSE,

                     December 3, 2004.