[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Notices]
[Pages 30431-30437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14152]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice (JSC), DOT.

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States, (2000 ed.) and Notice of Public Meeting.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States, (2000 ed.) (MCM). The 
proposed changes are the 2001 draft annual review required by the MCM 
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' May 8, 1996. The 
proposed changes concern the rules of procedure and evidence and the 
punitive articles applicable in trials by courts-martial. The proposed 
changes have not been coordinated within the Department of Defense 
under DoD Directive 5500.1, ``Preparation and Processing of 
Legislation, Executive Orders, Proclamations, and Reports and Comments 
Thereon,'' May 21, 1964, and do not constitute the official position of 
the Department of Defense, the Military

[[Page 30432]]

Departments, or any other government agency.
    This notice also sets forth the date, time and location for the 
public meeting of the JSC to discuss the proposed changes.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 8, 1996. This notice is intended only to 
improve the internal management of the Federal Government. It is not 
intended to create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States, its 
agencies, its officers, or any person.
    In accordance with paragraph III B 4 of the Internal Organization 
and Operating Procedures of the JSC, the committee also invites members 
of the public to suggest changes to the Manual for Courts-Martial in 
accordance with the herein-described format.

DATES: Comments on the proposed changes must be received no later than 
August 20, 2001 for consideration by the JSC. A public meeting will be 
held on Thursday, July 19, 2001 at 2:00 p.m. It will be held at Room 
808, 1501 Wilson Blvd., Arlington, VA 22209-2403.

ADDRESSES: Comments on the proposed changes should be sent to Captain 
Richard M. Burke, U.S. Marine Corps, Military Law Branch, Judge 
Advocate Division, HQMC, Room 5E618, Washington, DC 20380-1775.

FOR FURTHER INFORMATION CONTACT: Captain Richard M. Burke, U.S. Marine 
Corps, Military Law Branch, Judge Advocate Division, HQMC, Room 5E618, 
Washington, DC 20380-1775, (703) 614-3699/4250; FAX (703) 695-8350.

SUPPLEMENTARY INFORMATION: The proposed amendments to the Manual for 
Courts-Martial are as follows:
    Amend paragraph 4 of the Preamble by adding a new 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,'' a copy of which is included in this Manual as Appendix 
26. DoD Directive 5500.17 includes provisions allowing public 
participation in the annual review process.

    Amend R.C.M. 307(c)(3) 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.

    Amend subparagraph (ix) of the Discussion accompanying R.C.M. 
307(c) to read as follows:

    (ix) Matters in aggravation. Matters in aggravation that do not 
increase the maximum authorized punishment ordinarily should not be 
alleged in the specification. Prior convictions need not be alleged 
in the specification to permit increased punishment. Aggravating 
factors in capital cases should not be alleged in the specification. 
Notice of such factors is normally provided in accordance with 
R.C.M. 1004(b)(1).

    Amended the analysis accompanying R.C.M. 307(c)(3) by inserting the 
following at the end thereof:

    200 Amendment: The Rule was amended by modifying language in the 
Discussion at (H)(ix), and pulling it into the text of the Rule, to 
emphasize that facts that increase maximum authorized punishments 
must be alleged and proven beyond a reasonable doubt. Jones v. 
United States, 526 U.S. 227 (1999) See also Apprendi v. New Jersey, 
530 U.S. 466 (2000). R.C.M. 1003(d) prior convictions and R.C.M. 
1004 capital aggravating factors were excluded because the rule in 
Apprendi exempts prior convictions and distinguishes capital 
sentencing schemes. R.C.M. 1004 capital aggravation factors were 
also excluded to avoid complicating Part IV of the Manual and 
because R.C.M. 1004 already establishes a separate scheme for 
satisfying an accused's Constitutional rights in this area. See 
Walton v. Arizona, 497 U.S. 639 (1990) (capital aggravation factors 
as ``standards'' to guide the making a choice between death and 
lessor punishment).

    Insert the following Discussion to accompany R.C.M. 405(g)(1)(A):

    A witness located beyond the 100 mile limit is not per se 
unavailable. To determine if a witness beyond 100 miles is 
reasonably available, the significance of the witness's live 
testimony must be balanced against the relative difficulty and 
expense of obtaining the witness's presence at the hearing.

    Amend the analysis accompanying R.C.M. 405(g)(1) by inserting the 
following before the discussion of subsection (2):

    200 Amendment: The Discussion to subsection (g)(1)(A) is new. It 
was added in light of the decision in United States v. Marie, 43 
M.J. 35 (1995) that a witness beyond 100 miles from the site of the 
investigation is not per se unavailable.

    Amend the second paragraph of the Discussion accompanying R.C.M. 
406(b) to read as follows:

    The advice need not set forth the underlying analysis or 
rationale for its conclusions. Ordinarily, the charge sheet, 
forwarding letter, and endorsements, and report of investigation are 
forwarded with the pretrial advice. In addition the pretrial advice 
should include when appropriate: a brief summary of the evidence; 
discussion of significant aggravating, extenuating, or mitigating 
factors; any recommendations for disposition of the case by 
commanders or others who have forwarded the charges; and the 
recommendation of the Article 32 investigating officer. However, 
there is no legal requirement to include such information, and 
failure to do so is not error.

    Amend the analysis accompanying R.C.M. 406(b) by inserting the 
following at the end thereof:

    200 Amendment: The Discussion to R.C.M. 406(b) was amended to 
add as additional, non-binding guidance that the SJA should include 
the recommendation of the Article 32 investigating officer.

    Amend R.C.M. 707(b)(3)(D) 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.

    Amend the analysis accompanying R.C.M. 707(b) by inserting the 
following before the discussion of subsection (c):

    200 Amendment: Subsection (3)(D) was amended in light of United 
States v. Becker, 53 M.J. 229 (2000), to clarify that the 120-day 
time period applies to sentence-only rehearings. The amendment also 
designates the first session under R.C.M. 803 as the point where an 
accused is brought to trial in a sentence-only rehearing.

    Amend R.C.M. 707(c) 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.

    Delete the Discussion accompanying R.C.M. 707(c).
    Amend the analysis accompanying R.C.M. 707(c) by inserting the 
following before the discussion of subsection (d):


[[Page 30433]]


    200 Amendment: Subsection (c) was amended to treat periods of 
the accused's unauthorized absence as excludable delay for purposes 
of speedy trial. See United States v. Dies, 45 M.J. 376 (1996). The 
discussion was deleted as superfluous.

    Amend R.C.M. 707(d) 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 reprosecution 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.

    Insert the following Discussion accompanying R.C.M. 707(d):

    See subsection (c)(1) and the accompanying Discussion concerning 
reasons for delay and procedures for parties to request delay.

    Amend the analysis accompanying R.C.M. 707(d) by inserting the 
following before the discussion of subsection (e):

    200 Amendment: Subsection (d) was amended in light of United 
States v. Becker, 53 M.J. 229 (2000), to provide for sentence relief 
as a sanction for violation of the 120-day rule in sentence-only 
rehearings. The amendment sets forth factors for the court to 
consider to determine whether or to what extent sentence relief is 
appropriate and provides for the sentence credit to be applied to 
the sentence approved by the convening authority.

    Amend R.C.M. 806(b) 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.

    The following discussion is added to R.C.M. 806(b)(1):

    The military judge must ensure that the dignity and decorum of 
the proceedings are maintained and that the rights and interests of 
the parties and society are protected. Public access to a session 
may be limited, specific persons excluded from the courtroom, and, 
under unusual circumstances, a session may be closed.
    Exclusion of specific persons, if unreasonable under the 
circumstances, may violate the accused's right to a public trial, 
even though other spectators remain. Whenever specific persons or 
some members of the public are excluded, exclusion must be limited 
in time and scope to the minimum extent necessary to achieve the 
purpose for which it is ordered. Prevention of overcrowding or noise 
may justify limiting access to the courtroom. Disruptive or 
distracting appearance or conduct may justify excluding specific 
persons. Specific persons may be excluded when necessary to protect 
witnesses from harm or intimidation. Access may be reduced when no 
other means is available to relieve a witness' inability to testify 
due to embarrassment or extreme nervousness. Witnesses will 
ordinarily be excluded from the courtroom so that they cannot hear 
the testimony of other witnesses. See Mil. R. Evid. 615.

    The following discussion is added to R.C.M. 806(b)(2):

    The military judge is responsible for protecting both the 
accused's right to, and the public's interest in, a public trial. A 
court-martial session is ``closed'' when no member of the public is 
permitted to attend. A court-martial is not ``closed'' merely 
because the exclusion of certain individuals results in there being 
no spectators present, so long as the exclusion is not so broad as 
to effectively bar everyone who might attend the sessions and is for 
a proper purpose.
    A session may be closed over the objection of the accused or the 
public upon meeting the constitutional standard set forth in this 
Rule. See also Mil. R. Evid. 412(c), 505(i) and (j), 506(i), and 
513(e)(2).
    The accused may waive his right to a public trial. The fact that 
the prosecution and defense jointly seek to have a session closed 
does not, however, automatically justify closure, for the public has 
a right to attend courts-martial. Opening trials to public scrutiny 
reduces the chance of arbitrary and capricious decisions and 
enhances public confidence in the court-martial process.
    The most likely reason for a defense request to close court-
martial proceedings is to minimize the potentially adverse effect of 
publicity on the trial. For example, a pretrial Article 39(a) 
hearing at which the admissibility of a confession will be litigated 
may, under some circumstances, be closed, in accordance with this 
Rule, in order to prevent disclosure to the public (and hence to 
potential members) of the very evidence that may be excluded. When 
such publicity may be a problem, a session should be closed only as 
a last resort.
    There are alternative means of protecting the proceedings from 
harmful effects of publicity, including a thorough voir dire (see 
R.C.M. 912), and if necessary, a continuance to allow the harmful 
effects of publicity to dissipate (see R.C.M. 906(b)(1)). 
Alternatives that may occasionally be appropriate and are usually 
preferable to closing a session include: directing members not to 
read, listen to, or watch any accounts concerning the case; issuing 
a protective order (see R.C.M. 806(d)); selecting members from 
recent arrivals in the command, or from outside the immediate area 
(see R.C.M. 503(a)(3)); changing the place of trial (see R.C.M. 
906(b)(11)); or sequestering the members.

    Amend the analysis accompanying R.C.M. 806(b) by inserting the 
following before the discussion of subsection(c):

    200 Amendment: Subsection (b) was divided to separate the 
provisions addressing control of spectators and closure and to 
clarify that exclusion of specific individuals is not a closure. The 
rules for control of spectators now in subsection (b)(1) were 
amended to require the military judge to articulate certain findings 
on the record prior to excluding specific spectators. See United 
States v. Short, 41 M.J. 42 (1994). The rules on closure now in 
subsection (b)(2) and the Discussion were amended in light of 
military case law that has applied the Supreme Court's 
Constitutional test for closure to courts-martial. See ABC Inc. v. 
Powell, 47 M.J. 363 (1997); United States v. Hershey, 20 M.J. 433 
(C.M.A. 1985); United States v. Grunden, 2 M.J. 116 (C.M.A. 1977).

    Amend the Discussion accompanying R.C.M. 916(k)(1) to read as 
follows:

    See R.C.M. 706 concerning sanity inquiries; R.C.M. 909 
concerning the capacity of the accused to stand trial; and R.C.M. 
1102A concerning any post-trial hearing for an accused found not 
guilty only by reason of lack of mental responsibility.

    Amend the analysis accompanying R.C.M. 916(k)(1) by inserting the 
following before the discussion of subsection (2):

    200 Amendment: The Discussion to R.C.M. 916(k)(1) was amended to 
add a cross-reference to R.C.M. 1102A.

    Amend R.C.M. 916(k)(1) 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.

    Insert the following Discussion to accompany R.C.M. 916(k)(2):


[[Page 30434]]


    Discussion. Evidence of a mental condition not amounting to a 
lack of mental responsibility may be admissible as to whether the 
accused entertained a state of mind necessary to be proven as an 
element of the offense. The defense must notify the trial counsel 
before the beginning of trial on the merits if the defense intends 
to introduce expert testimony as to the accused's mental condition. 
See R.C.M. 701(b)(2).

    Amend the analysis accompanying R.C.M. 916(k)(2) by inserting the 
following before the discussion of subsection (3):

    200 Amendment: Subsection (k)(2) was modified to clarify that 
evidence of an accused's impaired mental state may be admissible. 
See United States v. Schap, 49 M.J. 317,322 (1998); United States v. 
Berri, 33 M.J. 337 (C.M.A. 1991); Ellis v. Jacob, 26 M.J. 90 (C.M.A. 
1988).

    Amend R.C.M. 1103(f)(2) 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.

    Amend the analysis accompanying R.C.M. 1103(f) by inserting the 
following before the discussion of subsection (g):

    200 Amendment: Subsection (f)(2) was amended to reflect 
amendments to Article 63, UCMJ, in the National Defense 
Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 
Stat. 2315,2506 (1992). The revisions provide that subsection (f)(2) 
sentencing limitations are properly applicable only to the sentence 
that may be approved by the convening authority following a 
rehearing. Subsection (f)(2) as revised does not limit the maximum 
sentence that may be adjudged at the rehearing. See United States v. 
Gibson, 43 M.J. 343, 346 n.3 (1995); United States v. Lawson, 34 
M.J. 38 (C.M.A. 1992) (Cox, J., concurring); United States v. 
Greaves, 48 M.J. 885 (A.F.Ct.Crim.App. 1998), rev. denied, 51 M.J. 
365 (1999).

    Insert the following new subsection (iv) 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.

    Amend the Discussion to R.C.M. 1107(e)(1)(B)(iii) to read as 
follows:

    A sentence rehearing, rather than a reassessment, may be more 
appropriate in cases where a significant part of the government's 
case has been dismissed. The convening authority may not take any 
action inconsistent with directives of superior competent authority. 
Where that directive is unclear, appropriate clarification should be 
sought from the authority issuing the original directive.

    Amend the analysis accompanying R.C.M. 1107(e)(1) by inserting the 
following before the discussion of subsection (2):

    200 Amendment: The Discussion to R.C.M. 1107(e)(1)(B)(iii) was 
moved to new subsection (1)(B)(iv) to expressly recognize that, in 
cases where a superior authority has approved some findings of 
guilty and has authorized a rehearing as to other offenses, the 
convening authority may, unless otherwise directed, reassess a 
sentence based on approved findings of guilty under the criteria 
established by United States v. Sales, 22 M.J. 305 (C.M.A. 1986), 
and dismiss the remaining charges. See United States v. Harris, 53 
M.J. 86 (2000). The power of convening authorities to reassess had 
been expressly authorized in paragraph 92a of MCM, 1969. The 
authorizing language was moved to the Discussion following R.C.M. 
1107(e)(1)(B)(iii) in MCM, 1984. The Discussion was amended to 
advise practitioners to apply the criteria for sentence reassessment 
established by United States v. Sales, 22 M.J. 305 (C.M.A. 1986). 
See also United States v. Harris, 53 M.J. 86 (2000); United States 
v. Eversole, 53 M.J. 132 (2000). The Discussion was further amended 
to encourage practitioners to seek clarification from superior 
authority where the directive to the convening authority is unclear.

    Amend R.C.M. 1108(b) 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 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 which adjudged the sentence may suspend 
or remit any part of amount of the unexecuted part of any sentence 
by summary court-martial or of any sentence by special court-martial 
which does not include a bad-conduct discharge regardless of whether 
the person acting has previously approved the sentence. The 
``unexecuted part of any sentence'' includes that part which has 
been approved and ordered executed but which has not actually been 
carried out.

    Amend the analysis accompanying R.C.M. 1108 by inserting the 
following at the end thereof:

    200 Amendment: Subsection (b) was amended to conform to the 
limitations on Secretarial authority to grant clemency for military 
prisoners serving a sentence of confinement for life without 
eligibility for parole contained in section 553 of the Floyd D. 
Spence National Defense Authorization Act for Fiscal Year 2001, Pub. 
L. No. 106-398,1 14 Stat. 1654, Oct 30, 2000.

    Amend R.C.M. 1305(c) to read as follows:

    (c) Authentication. The summary court-martial shall authenticate 
the record by signing the original record trail.

    Amend the analysis accompanying R.C.M. 1305(c) by inserting the 
following prior to the discussion of subsection (d):

    200 Amendment: This subsection was amended to require that 
summary courts-martial authenticate the original record of trial, as 
is currently the procedure for special and general courts-martial.

    Amend R.C.M. 1306(b)(1) 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).

    Amend the analysis accompanying R.C.M. 1306(b) by inserting the 
following prior to the discussion of subsection (c):

    200 Amendment: The cross-reference to subsection R.C.M. 
1105(c)(3) is amended to R.C.M. 1105(c)(2) to conform to the 1987 
Change 3 amendment that re-designated R.C.M. 1105(c)(3) as R.C.M. 
1105(c)(2).

    Amend Mil. R. Evid. 103(a)(2) 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 trail, 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 Untied 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.


[[Page 30435]]


    Amend the analysis accompany Mil. R. Evid. 103(a) by inserting the 
following prior to the discussion of subsection (b):

    200 Amendment: Subdivision 9a)(2) was modified based on the 
amendment to Fed. R. Evid 103(a)(2), effective 1 December 2000, and 
is virtually identical to its Federal Rule counterpart. It is 
intended to provide that where an advance ruling is definitive, a 
party need not renew an objection or offer of proof at trial. 
Otherwise, renewal is required.

    Amend Mil. R. Evid. 404(a) 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.

    Amend the analysis accompanying Mil R. Evid 404(a) by inserting the 
following prior to the discussion of subsection (b):

    200 Amendment: Subdivision (a) was modified based on the 
amendment to Fed. R. Evid. 404(a), effective 1 December 2000, and is 
virtually identical to its Federal Rule counterpart. It is intended 
to provide a more balanced presentation of character evidence when 
an accused attacks the victim's character. The accused opens the 
door to an attack on the same trait of his own character when he 
attacks an alleged victim's character, giving the members an 
opportunity to consider relevant evidence about the accused's 
propensity to act in a certain manner. The words ``if relevant'' are 
added to subdivision (a)(1) to clarify that evidence of an accused's 
character under this rule must meet the requirements of Rules 401 
and 403. The drafters believe this addition addresses the unique use 
of character evidence in courts-martial. The amendment does not 
permit proof of the accused's character when the accused attacks the 
alleged victim's character as a witness under Rule 608 or 609, nor 
does it affect the standards for proof of character by evidence of 
other sexual behavior or sexual offenses under Rules 412-415.

    Amend Mil. R. Evid. 701 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 which 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 Mil. R. Evid. 702.

    Amend the analysis accompanying Mil. R. Evid. 701 by inserting the 
following at the end thereof:

    200 Amendment: Rule 701 was modified based on the amendment to 
Fed. R. Evid. 701, effective 1 December 2000, and is taken from the 
Federal Rule without change. It prevents parties from proffering an 
expert as a lay witness in an attempt to evade the gatekeeper and 
reliability requirements of Rule 702 by providing that testimony 
cannot qualify under Rule 701 if it is based on ``scientific, 
technical or other special knowledge within the scope of Rule 702.

    Amend Mil. R. Evid. 702 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.

    Amend the analysis accompanying Mil. R. Evid. 702 by inserting the 
following at the end thereof:

    200 Amendment: Rule 702 was modified based on the amendment to 
Fed. R. Evid. 702, effective 1 December 2000, and is taken from the 
Federal Rule without change. It provides guidance for courts and 
parties as to the factors to consider in determining whether an 
expert's testimony is reliable in light of Daubert v. Merrell Dow 
Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. 
Carmichael, 526 U.S. 137 (1999) (holding that gatekeeper function 
applies to all expert testimony, not just testimony based on 
science).

    Amend Mil. R. Evid. 703 to read as follows:

    The facts or data in the particular case upon which an expert 
bases an opinioin 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.

    Amend the analysis accompanying Mil. R. Evid. 703 by inserting the 
following at the end thereof:

    200 Amendment: Rule 703 was modified based on the amendment to 
Fed. R. Evid. 703, effective 1 December 2000, and is virtually 
identical to its Federal Rule counterpart. It limits the disclosure 
to the members of inadmissible information that is used as the basis 
of an expert's opinion. Compare Mil. R. Evid. 705.

    Amend Mil. R. Evid. 803(6) to read as follows:

    Records of regularly conducted activity. A memorandum, report, 
record, or data compilation, in any form, of act, 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 compilation normally admissible pursuant to this paragraph area 
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.

    Amend the analysis accompanying Mil. R. Evid. 803(6) by inserting 
the following prior to the discussion of subsection (7):

    200 Amendment: Rule 803(6) was modified based on the amendment 
to Fed. R. Evid. 803(6), effective 1 December 2000. It permits a 
foundation for business records to be made through certification to 
save the parties the expense and inconvenience of producing live 
witnesses for what is often perfunctory testimony. The Rule 
incorporates federal statutes which allow certification in a 
criminal proceeding in a court of the United States (See e.g. 18 
U.S.C. section 3505, Foreign records of regularly conducted 
activity). The Rule does not include foreign records of regularly 
conducted business activity in civil cases as provided in its 
Federal Rule counterpart. This Rule works together with Rule 
902(11).

    Insert Mil. R. Evid. 902(11) to read as follows:


[[Page 30436]]


    (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.

    Insert the following new analysis accompanying Mil. R. Evid. 
901(11) after the discussion of subsection (10):

    200 Amendment: Rule 902(11) was modified based on the amendment 
to Fed. R. Evid. 902(11), effective 1 December 2000, and is taken 
from the Federal Rule without change. It provides for self-
authentication of domestic business records and sets forth 
procedures for preparing a declaration of a custodian and other 
qualified witness that will establish a sufficient foundation for 
the admission of domestic business records. This Rule works together 
with Mil. R. Evid. 803(6).

    The amendment to the Federal Rules of Evidence, effective in United 
States District Courts, December 1, 2000, creating Rule 901(12) is not 
adopted.
    Amend the analysis accompanying Mil. R. Evid. 1102 by inserting the 
following at the end thereof:

    200 Amendment: The amendment to the Federal Rules of Evidence, 
effective in United States District Courts, December 1, 2000, 
creating Rule 902(12) is not adopted. Federal Rules 301, 302, and 
415, were not adopted because they are applicable only to civil 
proceedings.

    Amend Part IV, para 45(b)(2) by deleting para 45(b)(2)(c) and 
inserting the following after para 45(b)(2)(b):

(Note: Add one of the following elements)

    (c) That at the time of the sexual intercourse the person was 
under the age of 12.
    (d) That at the time of the sexual intercourse the person had 
attained the age of 12 but was under the age of 16.

    Amend the analysis accompanying Part IV, para 45(b) by inserting 
the following prior to the discussion of subsection (c):

    b. Elements.
    200 Amendment: Paragraph 45(b)(2) was amended to add two 
distinct elements of age based upon the 1994 amendment to paragraph 
45(e). See also concurrent change to R.C.M. 307(c)(3) and 
accompanying analysis.

    Amend Part IV, para 45(f) to read as follows:

    f. Sample specifications.
    (1) Rape.
    In that ________________(personal jurisdiction data), (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).

    Amend the analysis accompanying Part IV, para 45(f) by inserting 
the following at the end of subsection (e):

    200 Amendment: Paragraph 45(f)(2) was amended to aid 
practitioners in charging the two distinct categories of carnal 
knowledge created in 1994. For the same reason paragraph 45(f)(1) 
was amended to allow for contingencies of proof because carnal 
knowledge is a lesser-included offense of rape if properly pleaded. 
See also concurrent change to R.C.M. 307(c)(3) and accompanying 
analysis.

    Amend Part IV, para 51(b) 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.

    Amend the analysis accompanying Part IV, para 51(b) by inserting 
the following prior to the discussion of subsection (c):

    b. Elements.
    200 Amendment: Paragraph 51(b) was amended by adding two factors 
pertaining to age based upon the 1994 amendment to paragraph 51(e) 
that created two distinct categories of sodomy involving a child. 
See also concurrent change to R.C.M. 307(c)(3) and accompanying 
analysis.

    Amend Part IV, para 51(f) 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____________).

    Amend the analysis accompanying Part IV, para 45(f) by inserting 
the following at the end of subsection (e):

    200 Amendment: Paragraph 51(f) was amended to aid practitioners 
in charging the two distinct categories of sodomy involving a child 
created in 1994. See also concurrent change to R.C.M. 307(c)(3) and 
accompanying analysis.

    Amend Part IV, para 57(c)(2)(B) 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.

    Amend the analysis accompanying Part IV, para 57(c)(2)(B) by 
inserting the following before the discussion of subsection (d):

    200 Amendment: Subsection (2)(b) was amended to comply with 
United States v. Gaudin, 515 U.S. 506 (1995), which held that when 
materiality is a statutory element of an offense, it must be 
submitted to the jury for decision. Materiality cannot be removed 
from members' consideration by an interlocutory ruling that a 
statement is material. See also, Gaudin at 521, (``It is commonplace 
for the same mixed question of law and fact to be assigned to the 
court for one purpose, and to the jury for another.''); and at 517, 
(``The prosecution's failure to provide minimal evidence of 
materiality, like its failure to provide minimal evidence of any 
other element, of course raises a question of `law' that warrants 
dismissal.'').

    Amend Part IV, para 100a(c)(1) 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 grevious bodily harm to others.

    Amend Part IV, para 100a(f) 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 ____________.


[[Page 30437]]


    Amend the analysis accompanying Part IV, para 100a by inserting the 
following at the end thereof:

    200 Amendment: The sample specification was amended to add the 
word ``wantonly'' to make the sample specification consistent with 
the elements. The phrase ``serious bodily harm'' has been changed to 
read ``grievous bodily harm'' in the sample specification to 
parallel the language in the elements. Similarly, in the 
Explanation, the phrase ``serious injury'' was modified to read 
``grievous bodily harm.'' The format of the sample specification was 
also modified to follow the format of other sample specifications in 
the MCM.

    Insert DoD Directive 5500.17, ``The Roles and Responsibilities of 
the Joint Service Committee (JSC) on Military Justice'' as Appendix 26.
    Members of the public are hereby invited to submit proposals for 
changes to the Manual for Courts-Martial for consideration by the JSC. 
All submissions should be rceived by the close of the public comment 
period in order to be considered in the next annual review cycle. 
Proposals should include reference to the specific provision you wish 
changed, a rational for the proposed change, and specific and detailed 
proposed language to replace the current language. Incomplete 
submissions may not be considered. The individual or agency submitting 
each proposal will be notified in writing whether the JSC voted to 
decline the proposal as not within the JSC's cognizance, reject it, 
table, or accept it.

    Dated: May 31, 2001.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 01-14152 Filed 6-5-01; 8:45 am]
BILLING CODE 5001-08-M