Executive Order 13365—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 consideration 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 llllllllll(personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about llll20ll, rape llllllllll, (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 llllllllll(personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about llll20ll, commit the offense of carnal knowledge with llllllllll, (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 llllllllll(personal

jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about llll20ll, commit sodomy with llllllllll, (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 llllllllll)."

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

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.

George W. Bush

The White House,

December 3, 2004.