[Federal Register Volume 69, Number 235 (Wednesday, December 8, 2004)]
[Presidential Documents]
[Pages 71333-71338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27076]



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Part VI





The President





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Executive Order 13365--2004 Amendments to the Manual for Courts-
Martial, United States


                        Presidential Documents 



Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 71333]]

                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:

[[Page 71334]]

  ``(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

[[Page 71335]]

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.''

[[Page 71336]]

                    (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

[[Page 71337]]

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.''

[[Page 71338]]

                    (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.

[FR Doc. 04-27076
Filed 12-7-04; 8:45 am]
Billing code 3195-01-P