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

the record. In subsection (A), the number of copies required has
been increased from two to four to conform to current practice.
1993 Amendment: Subsection (g)(1)(A) was amended by adding
the phrase “and are subject to review by a Court of Criminal
Appeals under Article 66” to eliminate the need to make four
copies of verbatim records of trial for courts-martial which are
not subject to review by a Court of Criminal Appeals. These
cases are reviewed in the Office of the Judge Advocate General
under Article 69 and four copies are not ordinarily necessary.
(h) Security classification. This subsection is based on the first
sentence of paragraph 82 d of MCM, 1969 (Rev.). The remainder
of that paragraph is deleted as unnecessary.
(i) Examination of the record. Subsection (1)(A) and the first
paragraph of the discussion are based on the first paragraph of
paragraph 82 e of MCM, 1969 (Rev.).
Subsection (1)(B) is based on the first sentence of the second
paragraph of paragraph 82 e of MCM, 1969 (Rev.). The first
paragraph of the discussion is based on United States v. Anderson,
supra at 197. Examination before authentication will improve
the accuracy of the record, reduce the possibility of the
necessity for a certificate of correction, and obviate the problems
discussed in Anderson. The first paragraph of the discussion is
based on the fourth and fifth sentences of the second paragraph of
paragraph 82 e of MCM, 1969 (Rev.). See also United States v.
Anderson, supra at 197. The second paragraph of the discussion
is based onUnited v. Anderson, supra. See also United States v.
Everett, 3 M.J. 201, 202 (C.M.A. 1977). The third paragraph of
the discussion is based on the second sentence of the second
paragraph of paragraph 82 e of MCM, 1969 (Rev.).
(j) Videotape and similar records. This subsection is new and is
based on Article 1(14), which is also new. See Military Justice
Act of 1983, Pub.L. No. 98-209, § 6(a), 97 Stat. 1393 (1983).
T h i s s u b s e c t i o n i m p l e m e n t s A r t i c l e 1 ( 1 4 ) i n a c c o r d a n c e w i t h
guidance in S.Rep. No. 53, 98th Cong., 1st Sess. 25-26 (1983).
The concerns expressed in United States v. Barton, 6 M.J. 16
(C.M.A. 1978) were also considered.
S u b s e c t i o n ( 1 ) p r o v i d e s f o r r e c o r d i n g c o u r t s - m a r t i a l b y
videotape, audiotape, or similar means, if authorized by regulation
of the Secretary concerned. Such Secretarial authorization is necessary
to ensure that this procedure will be used only when
appropriate equipment is available to permit its effective use, in
accordance with the requirements for this rule. Such equipment
includes not only devices capable of recording the proceedings
accurately, but playback equipment adequate to permit transcription
by trained personnel or examination by counsel and reviewing
authorities. In addition, if transcription is not contemplated,
the recording method used must be subject to production of duplicates
for compliance with subsection (j)(5) of this rule.
Subsection (2) requires that, ordinarily, the record will be reduced
to writing, even if recorded as described in subsection (1).
This preference for a written record is based on the fact that such
a record is easier to use by counsel, reviewing authorities, and the
accused, and is often easier to produce in multiple copies. Cf.
United States v. Barton, supra. Note, however, that the rule permits
recording proceedings and transcribing them later without
using a court reporter. This adds a measure of flexibility in the
face of a possible shortage of court reporters. This subsection is
consistent with the already common practice of using “back-up”
ANALYSIS
App. 21, R.C.M. 1104(a)
recordings to prepare a record when the court reporter’s equipment
has failed.
Subsection (3) recognizes that military exigencies may prevent
transcription of the record, especially at or near the situs of the
trial. In such instances, where an accurate record already exists,
the convening authority’s action should not be postponed for lack
of transcription, subject to the provisions in subsection (3). Thus,
the convening authority may take action, and transcription for
appellate or other reviewing authorities may occur later. See subsection
(4). Note that additional copies of the record need not be
prepared in such case, except as required in subsection (j)(5)(A).
Note also, however, that facilities must be reasonably available
for use by the defense counsel (and when appropriate the staff
judge advocate or legal officer, see R.C.M. 1106) to listen to or
view and listen to the recordings to use this subsection.
Subsection (4)(A) is based on the recognition that it is impracticable
for appellate courts and counsel not to have a written
record. See S.Rep. No. 53, supra at 26; United States v. Barton,
supra. Note that the transcript need not be authenticated under
R.C.M. 1104. Instead, under regulations of the Secretary concerned
the accuracy of the transcript can be certified by a person
who has viewed and/or heard the authenticated recording.
Subsection (4)(B) provides flexibility in cases not reviewed by
the Court of Criminal Appeals. Depending on regulations of the
Secretary, a written record may never be prepared in some cases.
Many cases not reviewed by a Court of Criminal Appeals will be
reviewed only locally. See R.C.M. 1112. The same exigencies
which weigh against preparation of a written record may also
exist before such review. If a written record in not prepared, the
review will have to be conducted by listening to or viewing and
listening to the authenticated recording.
Subsection (5) provides alternative means for the government
to comply with the requirement to serve a copy of the record of
trial on the accused. Article 54(d). Note that if a recording is
used, the Government must ensure that it can provide the accused
reasonable opportunity to listen to or view and listen to the
recording.
Rule 1104 Records of trial: authentication;
service; correction; forwarding
(a) Authentication. Subsection (1) is new and is self-explanatory.
Subsection (2) is based on Article 54(a) and (b) and paragraph
82 f of MCM, 1969 (Rev.). The former rule has been changed to
require that the record, or even a portion of it, may be authenticated
only be a person who was present at the proceedings the
record of which that person is authenticating. This means that in
some cases (e.g., when more than one military judge presided in a
case) the record may be authenticated by more than one person.
See United States v. Credit, 4 M.J. 118 (C.M.A. 1977); S.Rep.
No. 1601, 90th Cong., 2d Sess. 12-13 (1968); H.R. Rep. No.
1481, 90th Cong., 2d Sess. 10 (1968). See also United States v.
Galloway, 2 U.S.C.M.A. 433, 9 C.M.R. 63 (1953). This subsection
also changes the former rule in that it authorizes the Secretary
concerned to prescribe who will authenticate the record in
special courts-martial at which no bad-conduct discharge is adjudged.
See Article 54(b). In some services, the travel schedules
of military judges often result in delays in authenticating the
record. Such delays are substantial, considering the relatively less
severe nature of the sentences involved in such cases. This sub-
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