2008 edition - Fort Sam Houston - U.S. Army

the witness on balance outweigh the significance of the witness’ personal appearance. This authorization does
not apply to trial sessions on the merits of the case when either party objects to the remote testimony.
R.C.M. 804 and 805 allow the military judge to hold Article 39(a) sessions via remote means, so long as the
accused has counsel physically present at his location. Service regulations are required to implement this
change.
R.C.M. 804 was also amended to clarify the procedures and requirements for allowing the presiding military
judge to authorize the use of remote live testimony of a child. The change specifically applies to situations
where remote testimony is warranted to protect the child from the traumatic experience of testifying in person
at trial in front of the accused. It also clarifies the procedures and requirements for the limited circumstances
in which the presiding military judge may authorize the accused to be absent from the courtroom for the
limited purpose of a child’s testimony.
R.C.M. 912(f)(4) states that when a challenge for cause against a member has been denied, the successful
use of a peremptory challenge against that same member by either party precludes further consideration of
that excused member upon appellate or other review.
R.C.M. 916 conforms to the Article 120, UCMJ, amendments regarding the defense of mistake of fact as to
age in the prosecution of sexual offenses with a child and mistake of fact as to consent applicable to the
offenses of rape, aggravated sexual assault, aggravated sexual contact and abusive sexual contact.
R.C.M. 920 references the applicability of the R.C.M. 916 changes to the issue of mistake of fact as to
consent and age.
R.C.M. 1004, regarding capital cases, was amended to add as an aggravating factor that murder was
committed while the accused was engaged in the commission or attempted commission of rape or other
specified sex offenses under the amended Article 120, UCMJ.
R.C.M. 1004(b) now requires the convening authority to include a special instruction in the referral block of
the charge sheet if a case is to be tried as a capital case.
R.C.M. 1103A contains new rules and procedures for sealed exhibits.
R.C.M. 1204 sets forth the process by which courts-martial cases with sentences requiring the approval of
the President (capital cases) are transmitted by The Judge Advocate General of the Military Department
through the Secretary concerned, and then through the Secretary of Defense before being transmitted to the
President. The amendment requires the Secretary of Defense to make a recommendation.
Military Rules of Evidence (MRE) in Part III of the MCM:
MRE 412, “Sex offense cases; relevance of alleged victim’s sexual behavior or sexual predisposition,” was
amended to define and include “sexual offenses” covered by the protections of the rule and amends the
procedures to be used in determining admissibility.
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