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

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App. 22, M.R.E. 321(b)(2) APPENDIX 22 changes military law and adapts the Supreme Court’s decision in Kirby v. Illinois, 406 U.S. 682, 689 (1972) (holding that the right t o c o u n s e l a t t a c h e d o n l y w h e n “ a d v e r s a r y j u d i c i a l c r i m i n a l proceedings” have been initiated or “the government has committed itself to prosecute”) to unique military criminal procedure. See also Rule 305(d)(1)(B). Note that interrogation of a suspect will require rights warnings, perhaps including a warning of a right to counsel, even if counsel is unnecessary under Rule 321. See Rule 305. As previously noted, the Rule does not define “lineup” and recourse to case law is necessary. Intentional exposure of the suspect to one or more individuals for purpose of identification is likely to be a lineup. Stovall v. Denno, 388 U.S. 293, 297 (1967), although in rare cases of emergency (e.g., a dying victim) such an identification may be considered a permissible “showup” rather than a “lineup.” Truly accidental confrontations between victims and suspects leading to an identification by the victim are not generally considered “lineups”; cf. United State ex rel Ragazzin v. Brierley, 321 F.Supp. 440 (W.D. Pa. 1970). Photolineart identifications are not “lineups” for purposes of the right to counsel. U n i t e d S t a t e s v . A s h , 4 1 3 U . S . 3 0 0 , 3 0 1 n . 2 ( 1 9 7 3 ) . I f a photolineart identification is used, however, the photographs employed should be preserved for use at trial in the event that the defense should claim that the identification was “unnecessarily suggestive.” See subdivision (b)(1) supra. A lineup participant who is entitled to counsel is entitled to only one lawyer under the Rule and is specifically entitled to free military counsel without regard to the indigency or lack thereof of the participant. No right to civilian counsel or military counsel of t h e p a r t i c i p a n t ’ s o w n s e l e c t i o n e x i s t s u n d e r t h e R u l e , U n i t e d States v. Wade, 388 U.S. 218, n.27 (1967). A lineup participant may waive any applicable right to counsel so long as the participant is aware of the right to counsel and the waiver is made “freely, knowingly, and intelligently.” Normally a warning of the right to counsel will be necessary for the prosecution to prove an a d e q u a t e w a i v e r s h o u l d t h e d e f e n s e a d e q u a t e l y c h a l l e n g e t h e waiver. See, e.g., United States v. Avers, 426 F.2d 524 (2d Cir. 1970). See also Model Rules for Law Enforcement, Eye Witness Identification, Rule 404 (1974) cited in E. Imwinkelried, P. Giannelli, F. Gilligan, & F. Lederer, CRIMINAL EVIDENCE 366 (1979). 1984 Amendment: In subsection (b)(2)(A), the words “or law specialist within the meaning of Article 1” were deleted as unnecessary. See R.C.M. 103(26). Subdivision (b)(2)(B) grants a right to counsel at non-military lineups within the United States only when such a right to counsel is recognized by “the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar lineups.” The Rule presumes that an individual participating in a foreign lineup conducted by officials of a foreign nation without American participation has no right to counsel at such a lineup. (c) Motions to suppress and objections. Rule 321(c) is identical in application to Rule 311(d). See the Analysis to Rules 304 and 311. (d) Burden of proof. Rule 321(d) makes it clear that when an eyewitness identification is challenged by the defense, the prosecution need reply only to the specific cognizable defense complaint. See also Rules 304 and 311. The subdivision distinguishes A22-32 between defense challenges involving alleged violation of the right to counsel and those involving the alleged unnecessarily suggestive identifications. (1) Right to counsel. Subdivision (d)(1) requires that when an alleged violation of the right to counsel has been raised the prosecution must either demonstrate by preponderance of the evidence that counsel was present or that the right to counsel was waived voluntarily and intelligently. The Rule also declares that if the right to counsel is violated at a lineup that results in an identification of the accused any later identification is considered a result of the prior lineup as a matter of law unless the military judge determines by clear and convincing evidence that the latter identification is not the result of the first lineup. Subdivision (d)(1) is taken in substance from 1969 Manual Para. 153 a. ( 2 ) U n n e c e s s a r i l y s u g g e s t i v e i d e n t i f i c a t i o n . R u l e 3 2 1 ( d ) ( 2 ) deals with an alleged unnecessarily suggestive identification or with any other alleged violation of due process. The subdivision makes it clear that the prosecution must show, when the defense has raised the issue, that the identification in question was not based upon a preponderance of the evidence, “so unnecessarily suggestive in light of the totality of the circumstances, as to create a very substantial likelihood of irreparable mistaken identity.” This rule is taken from the Supreme Court’s decisions of Neil v. Biggers, 409 U.S. 188 (1972) and Stovall v. Denno, 388 U.S. 293 (1967), and unlike subdivision (d)(1), applies to all identification processes whether lineups or not. The Rule recognizes that the nature of the identification process itself may well be critical to the reliability of the identification and provides for exclusion of unreliable evidence regardless of its source. If the prosecution meets its burden, the mere fact that the identification process was unnecessary or suggestive does not require exclusion of the evidence, Manson v. Brathwaite, supra. If the identification in question is subsequent to an earlier, unnecessarily suggestive identification, the later identification is admissible if the prosecution can show by clear and convincing evidence that the later identification is not the result of the earlier improper examination. This portion of the Rule is consistent both with 1969 Manual Para. 153 a and Kirby v. Illinois, 406 U.S. 682 (1972). (e) Defense evidence. Rule 321(e) is identical with the analogous provisions in Rules 304 and 311 and generally restates prior law. (f) Rulings. Rule 321(f) is identical with the analogous provisions in Rules 304 and 321 and substantially changes prior law. See the Analysis to Rule 304(d)(4). (g) Effect of guilty plea. Rule 321(g) is identical with the analogous provisions in Rules 304 and 311 and restates prior law. SECTION IV Relevancy and its Limits Rule 401 Definition of “relevant evidence” The definition of “relevant evidence” found within Rule 401 is taken without change from the Federal Rule and is substantially similar in effect to that used by Para. 137, MCM, 1969 (Rev.). The Rule’s definition may be somewhat broader than the 1969 Manual’s, as the Rule defines as relevant any evidence that has “any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence” while the

1969 Manual defines as “not relevant” evidence “too remote to have any appreciable probative value ...” To the extent that the 1969 Manual’s definition includes considerations of “legal relevance,” those considerations are adequately addressed by such other Rules as Rules 403 and 609. See, E. IMWINKELRIED, P. GIANNELLI, F. GILLIGAN & F. LEDERER, CRIMINAL EVI- DENCE 62–65 (1979) (which, after defining “logical relevance” as involving only probative value, states at 63 that “under the rubric of [legal relevance,] the courts have imposed an additional requirement that the item’s probative value outweighs any attendant probative dangers.”) The Rule is similar to the 1969 Manual in that it abandons any reference to “materiality” in favor of a single standard of “relevance.” Notwithstanding the specific terminology used, however, the concept of materiality survives in the Rule’s condition that to be relevant evidence must involve a fact “which is of consequence to the determination of the action.” Rule 402 Relevant evidence generally admissible; irrelevant evidence inadmissible. Rule 402 is taken without significant change from the Federal Rule. The Federal Rule’s language relating to limitations imposed by “the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority” has been replaced by material tailored to the unique nature of the Military Rules of Evidence. Rule 402 recognizes that the Constitution may apply somewhat differently to members of the armed forces than to civilians, and the Rule deletes the Federal Rule’s reference to “other rules prescribed by the Supreme Court” because such Rules do not apply directly in courts-martial. See Rule 101(b)(2). Rule 402 provides a general standard by which irrelevant evidence is always inadmissible and by which relevant evidence is generally admissible. Qualified admissibility of relevant evidence is required by the limitations in Sections III and V and by such other Rules as 403 and 609 which intentionally utilize matters such as degree of probative value and judicial efficiency in determining whether relevant evidence should be admitted. Rule 402 is not significantly different in its effect from Para. 137 of the 1969 Manual which it replaces, and procedures used under the 1969 Manual in determining relevance generally remain valid. Offers of proof are encouraged when items of doubtful relevance are proffered, and it remains possible, subject to the discretion of the military judge, to offer evidence “subject to later connection.” Use of the latter technique, however, must be made with great care to avoid the possibility of bringing inadmissible evidence before the members of the court. It should be noted that Rule 402 is potentially the most important of the new rules. Neither the Federal Rules of Evidence nor the Military Rules of Evidence resolve all evidentiary matters; see Rule 101(b). When specific authority to resolve an evidentiary issue is absent, Rule 402’s clear result is to make relevant evidence admissible. Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time Rule 403 is taken without change from the Federal Rule of Evidence. The Rule incorporates the concept often known as “legal relevance”, see the Analysis to Rule 401, and provides that evidence may be excluded for the reasons stated notwithstanding ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 404(a) its character as relevant evidence. The Rule vests the military judge with wide discretion in determining the admissibility of evidence that comes within the Rule. If a party views specific evidence as being highly prejudicial, it may be possible to stipulate to the evidence and thus avoid its presentation to the court members. United States v. Grassi, 602 F.2d 1192 (5th Cir. 1979), a prosecution for interstate transportation of obscene materials, illustrates this point. The defense offered to stipulate that certain films were obscene in order to prevent the jury from viewing the films, but the prosecution declined to join in the stipulation. The trial judge sustained the prosecution’s rejection of the stipulation and the Fifth Circuit upheld the judge’s decision. In its opinion, however, the Court of Appeals adopted a case by case balancing approach recognizing both the importance of allowing probative evidence to be presented and the use of stipulations as a tool to implement the policies inherent in Rule 403. Insofar as the latter is concerned, the court expressly recognized the power of a Federal district judge to compel the prosecution to accept a defense tendered stipulation. Rule 404 Character evidence not admissible to prove conduct; exceptions; other crimes ( a ) C h a r a c t e r e v i d e n c e g e n e r a l l y . R u l e 4 0 4 ( a ) r e p l a c e s 1 9 6 9 Manual Para. 138 f and is taken without substantial change from the Federal Rule. Rule 404(a) provides, subject to three exceptions, that character evidence is not admissible to show that a person acted in conformity therewith. Rule 404(a)(1) allows only evidence of a pertinent trait of character of the accused to be offered in evidence by the defense. This is a significant change from Para. 138 f of the 1969 Manual which also allows evidence of “general good character” of the accused to be received in order to demonstrate that the accused is less likely to have committed a criminal act. Under the new rule, evidence of general good character is inadmissible because only evidence of a specific trait is acceptable. It is the intention of the Committee, however, to allow the defense to introduce evidence of good military character when that specific trait is pertinent. Evidence of good military character would be admissible, for example, in a prosecution for disobedience of orders. The prosecution may present evidence of a character trait only in rebuttal to receipt in evidence of defense character evidence. This is consistent with prior military law. Rule 404(a)(2) is taken from the Federal Rule with minor changes. The Federal Rule allows the prosecution to present evidence of the character trait of peacefulness of the victim “in a homicide case to rebut evidence that the victim was the first aggressor.” Thus, the Federal Rule allows prosecutorial use of character evidence in a homicide case in which self-defense has been raised. The limitation to homicide cases appeared to be inappropriate and impracticable in the military environment. All too often, assaults involving claims of self-defense take place in the densely populated living quarters common to military life. Whether aboard ship or within barracks, it is considered essential to allow evidence of the character trait of peacefulness of the victim. Otherwise, a substantial risk would exist of allowing unlawful assaults to go undeterred. The Federal Rule’s use of the expression “first aggressor” was modified to read “an aggressor,” as substantive military law recognizes that even an individual A22-33

Page 1 and 2: MANUAL FOR COURTS-MARTIAL UNITED ST

Page 3 and 4: PREFACE The Manual for Courts-Marti

Page 5 and 6: MRE 503 regarding the privilege att

Page 7 and 8: PART I PREAMBLE 1. Sources of milit

Page 9 and 10: MCM 2008 (l) Confinement after rele

Page 11 and 12: MCM 2008 (d) When charges may be re

Page 13 and 14: MCM 2008 (d) Effect of replacement

Page 15 and 16: MCM 2008 (b) Refusal to plead; irre

Page 17 and 18: MCM 2008 Rule 923. Impeachment of f

Page 19 and 20: MCM 2008 (c) Loss of record. . . .

Page 21 and 22: MCM 2008 (b) Petition by the accuse

Page 23 and 24: MCM 2008 SECTION III EXCLUSIONARY R

Page 25 and 26: MCM 2008 Rule 321. Eyewitness ident

Page 27 and 28: MCM 2008 Rule 509. Deliberations of

Page 29 and 30: MCM 2008 (15) Statements in documen

Page 31 and 32: MCM 2008 c. Explanation. . . . . .

Page 33 and 34: MCM 2008 a. Text of statute. . . .


Page 37 and 38: MCM 2008 f. Sample specification. .

Page 39 and 40: MCM 2008 d. Lesser included offense

Page 41 and 42: MCM 2008 d. Lesser included offense


Page 45 and 46: MCM 2008 b. Elements. . . . . . . .

Page 47 and 48: MCM 2008 f. Sample specification. .

Page 49 and 50: MCM 2008 a. Notice. . . . . . . . .

Page 51 and 52: 1. Sources of military jurisdiction

Page 53 and 54: Rule 101. Scope, title (a) In gener

Page 55 and 56: they remain possessions, but does n

Page 57 and 58: eviewing authority with respect to

Page 59 and 60: Discussion Complaints need not be m

Page 61 and 62: Rule 201. Jurisdiction in general (

Page 63 and 64: t h i s p o l i c y d o e s n o t a

Page 65 and 66: with respect to offenders or offens

Page 67 and 68: p e r s o n s u n d e r t h e l a w

Page 69 and 70: CHAPTER III. INITIATION OF CHARGES;

Page 71 and 72: (B) Under exigent circumstances des

Page 73 and 74: straint, including its terms or lim

Page 75 and 76: 305(i)(1), or this subsection preve

Page 77 and 78: of evidence or of misconduct which,

Page 79 and 80: matter shall be forwarded to the ge

Page 81 and 82: essential to the offense, so they m

Page 83 and 84: CHAPTER IV. FORWARDING AND DISPOSIT

Page 85 and 86: the hour and date of receipt to be

Page 87 and 88: counsel. The investigating officer

Page 89 and 90: expenses to testify at a pretrial i

Page 91 and 92: in the Article 32 investigating off

Page 93 and 94: t h e m a t t e r ) t o a s u b o r

Page 95 and 96: court-martial without a military ju

Page 97 and 98: counsel. Responsibility for trial o

Page 99 and 100: efore assembly, request orally on t

Page 101 and 102: See also R.C.M. 401(c). Discussion

Page 103 and 104: is a member shall be reasonably ava

Page 105 and 106: vening authority may include proper

Page 107 and 108: withdrawn charges or specifications

Page 109 and 110: information which is under the cont

Page 111 and 112: gated the disadvantage caused by th

Page 113 and 114: forward it to the authority who ord

Page 115 and 116: shall grant a continuance or other

Page 117 and 118: attendance of civilian witnesses ma

Page 119 and 120: ney General of the United States or

Page 121 and 122: period of suspension of the sentenc

Page 123 and 124: Discussion Based on the report, fur

Page 125 and 126: CHAPTER VIII. TRIAL PROCEDURE GENER

Page 127 and 128: making the motion or raising the ob

Page 129 and 130: ight to be present. See also R.C.M.

Page 131 and 132: An assistant counsel who lacks the

Page 133 and 134: Rule 807. Oaths (a) Definition. “

Page 135 and 136: t h e m i l i t a r y j u d g e s h

Page 137 and 138: Rule 811. Stipulations (a) In gener

Page 139 and 140: CHAPTER IX. TRIAL PROCEDURES THROUG

Page 141 and 142: (1) “Proceeding” includes pretr

Page 143 and 144: Rule 905. Motions generally (a) Def

Page 145 and 146: determination and the grounds for i

Page 147 and 148: trial be tried separately. Such a r

Page 149 and 150: out trial of a deserter by a genera

Page 151 and 152: against them or to conduct or coope

Page 153 and 154: vening authority, or trial counsel,

Page 155 and 156: vening authority in the case, or ha

Page 157 and 158: cise a peremptory challenge before

Page 159 and 160: (5) Reopening case. The military ju

Page 161 and 162: good character, see Mil. R. Evid. 4

Page 163 and 164: Discussion The defense of accident

Page 165 and 166: (l) Not defenses generally. (1) Ign

Page 167 and 168: erly before the court-martial on th

Page 169 and 170: equested by a party or which the mi

Page 171 and 172: not for the purpose of rendering a

Page 173 and 174: “conviction” includes any dispo

Page 175 and 176: section (c)(3) of this rule, they m

Page 177 and 178: Discussion A fine is in the nature

Page 179 and 180: and desertion (see paragraph 9, Par

Page 181 and 182: ( 4 ) N e c e s s a r y f i n d i n

Page 183 and 184: cused knowingly created a grave ris

Page 185 and 186: (d) Voting. (1) Duty of members. Ea

Page 187 and 188: (B) With a view to decreasing. Memb

Page 189 and 190: eported in the convening authority

Page 191 and 192: u n l e s s t h e s e n t e n c e p

Page 193 and 194: o n d e f e n s e c o u n s e l i n

Page 195 and 196: Appeals. Before review, if any, by

Page 197 and 198: the court-martial or in writing, th

Page 199 and 200: the period in which comments may be

Page 201 and 202: Discussion The method of service an

Page 203 and 204: mental capacity of the accused, the

Page 205 and 206: e o r d e r e d i f , i n t h e s a

Page 207 and 208: was disapproved or set aside. The c

Page 209 and 210: ence of the probationer or to preve

Page 211 and 212: one year, shall follow that set for

Page 213 and 214: ted, a waiver or withdrawal in comp

Page 215 and 216: Discussion A dismissal may not be o

Page 217 and 218: digency, unless the authority consi

Page 219 and 220: CHAPTER XII. APPEALS AND REVIEW Rul

Page 221 and 222: to request that the detailed appell

Page 223 and 224: T h e a c c u s e d m a y p e t i t

Page 225 and 226: shall take action under subsection

Page 227 and 228: e submitted by the accused personal

Page 229 and 230: CHAPTER XIII. SUMMARY COURTS-MARTIA

Page 231 and 232: substantial irregularity in the cha

Page 233 and 234: Discussion See Appendix 15 for a sa

Page 235 and 236: Rule 101. Scope ( a ) A p p l i c a

Page 237 and 238: Rule 301. Privilege concerning comp

Page 239 and 240: evidence would have been obtained e

Page 241 and 242: agent of a military unit or of a pe

Page 243 and 244: (3) Evidence that was obtained as a

Page 245 and 246: Rule 312. Body views and intrusions

Page 247 and 248: the time of the search. Under norma

Page 249 and 250: ( e ) P o w e r t o s e a r c h . A

Page 251 and 252: (2) takes place outside the United

Page 253 and 254: tendency to make the existence of a

Page 255 and 256: (1) Evidence offered to prove that

Page 257 and 258: (2) contact between the mouth and t

Page 259 and 260: Rule 504. Husband-wife privilege (a

Page 261 and 262: judge to have access to the classif

Page 263 and 264: any order that the interests of jus

Page 265 and 266: (A) Finding of identifiable damage.

Page 267 and 268: sonable period of time disclosure i

Page 269 and 270: of evidence of a patient’s record

Page 271 and 272: inadmissible except that a convicti

Page 273 and 274: Rule 702. Testimony by experts If s

Page 275 and 276: with the provisions of paragraph (6

Page 277 and 278: ing in the death of the alleged vic

Page 279 and 280: and actually recorded or filed in a

Page 281: i n g s e x c e p t t h o s e i n w

Page 284 and 285: 1.b.(2)(b)(ii) as a party, where th

Page 286 and 287: 3.b.(2) robbery, but guilty of wron

Page 288 and 289: 5.c.(3) agreement must, at least in

Page 290 and 291: 6.f.(1) or committed, add the follo

Page 292 and 293: 9.a.(a)(3) (3) without being regula

Page 294 and 295: 9.c.(2)(c) ous duty or important se

Page 296 and 297: 10.c.(4)(d) or duty section with th

Page 298 and 299: 11.c. c. Explanation. (1) Movement.

Page 300 and 301: 13.c.(1)(b) prevented. The victim i

Page 302 and 303: 14.c.(2)(b) must be directed specif

Page 304 and 305: 15.b.(3)(f) or was disrespectful to

Page 306 and 307: 16.c.(1)(b) tains its character as

Page 308 and 309: 17.c.(2) even though the duties are

Page 310 and 311: 18.f.(3) with intent to cause the (

Page 312 and 313: 19.c.(5)(c) without force or artifi

Page 314 and 315: 20.e.(3) Dishonorable discharge, fo

Page 316 and 317: 23.b.(2)(c) (c) That this act occur

Page 318 and 319: 23.d.(6)(b) (b) Article 80—attemp

Page 320 and 321: 24.f.(1) of , (to give up to the en

Page 322 and 323: 27.b.(3)(a) otherwise dealt in or d

Page 324 and 325: 28.c.(5)(a) i n f o r m a t i o n v

Page 326 and 327: 30.a. commission and on conviction

Page 328 and 329: 30a.c. c. Explanation. (1) Intent.

Page 330 and 331: 32.c.(2) cludes: deliberate violati

Page 332 and 333: 33.c.(2) this section, the destruct

Page 334 and 335: 34.f.(3) w e e n a n d h o u r s on

Page 336 and 337: 35.e.(1) discharge, forfeiture of a

Page 338 and 339: 37.c.(2) the accused did not know t

Page 340 and 341: 37.f.(3) aircraft, vehicle, or inst

Page 342 and 343: 39.f.(1) (with ), using as weapons

Page 344 and 345: 41.f.(1) w i t h ( a n d ) ( a n d

Page 346 and 347: 43.c.(3)(b) members of the body, se

Page 348 and 349: 44.e. e. Maximum punishment. ( 1 )

Page 350 and 351: 44a.d.(2)(a) (a) Article 119a — k

Page 352 and 353: 45.a.(o)(1) had not attained the ag

Page 354 and 355: 45.a.(t)(12)(B) (B) that other pers

Page 356 and 357: 45.b.(3)(c) ble of appraising the a

Page 358 and 359: 45.b.(8)(c) stantially incapacitate

Page 360 and 361: 45.e.(2)(a) - (f) (2)(a) - (f) Rape

Page 362 and 363: 45.g.(2)(c) 16 years, by causing gr

Page 364 and 365: 45.g.(7)(b)(i) wit: against (him)(h

Page 366 and 367: 45.g.(14) indecent manner (his) (he

Page 368 and 369: 46.c.(1)(c)(ii) ( i i ) O w n e r .

Page 370 and 371: 46.c.(1)(h)(i) the general or speci

Page 372 and 373: 47.c.(3) (3) Fear. For a robbery to

Page 374 and 375: 48.f.(1) (1) Forgery—making or al

Page 376 and 377: 49.c.(13) ( 1 3 ) U p o n i t s p r

Page 378 and 379: 50.f. data, if required) on or abou

Page 380 and 381: 52.f.(1)(b) T h e a t e r ) ( , t h

Page 382 and 383: 54.c.(1)(b)(ii) r e a s o n a b l e

Page 384 and 385: 54.c.(4)(b)(ii) as when the victim

Page 386 and 387: 55.b.(1) ( 1 ) T h a t t h e a c c

Page 388 and 389: 57.b.(1)(c) (c) That the oath or af

Page 390 and 391: 58.b.(3) ( 3 ) M a k i n g o r u s

Page 392 and 393: 58.f.(1) ( f a l s e a n d f r a u

Page 394 and 395: 60.a. be guilty, shall be taken cog

Page 396 and 397: 61. 61. Article 134—(Abusing publ

Page 398 and 399: 64.c.(6) intent to commit sodomy. A

Page 400 and 401: 67.b.(2) the intent to defraud a ce

Page 402 and 403: 68a.f.(2) culpable negligence) (whi

Page 404 and 405: 72.b.(5) discipline in the armed fo

Page 406 and 407: 76.f. w a s , ( a t / o n b o a r d

Page 408 and 409: 79.c.(1) ing under a lawful oath or

Page 410 and 411: 83.c.(1) tion of the custom of the

Page 412 and 413: 89.b.(3) discipline in the armed fo

Page 414 and 415: 93.f.(1) (1) Taking. In that (perso

Page 416 and 417: 96a.b.(2) tain person against whom

Page 418 and 419: 97a.c.(2) role, such as paying rest

Page 420 and 421: 100a.f. f. Sample specification. In

Page 422 and 423: 104.c.(2)(a) graph 38c applies to l

Page 424 and 425: 108.c. charge of wrongful to testif

Page 426 and 427: 110.f. ( a c c u s e o f h a v i n

Page 429 and 430: PART V NONJUDICIAL PUNISHMENT PROCE

Page 431 and 432: authority is considering the imposi

Page 433 and 434: (ii) correctional custody for not m

Page 435 and 436: (2) a subsequent period of active d

Page 437: o f a n y w r i t t e n m a t t e r

Page 440 and 441: Art. 1, § 5 APPENDIX 1 Section 6.

Page 442 and 443: Art. 2, § 3 APPENDIX 1 them, with

Page 444 and 445: Amdt. XII APPENDIX 1 number of Elec

Page 446 and 447: Amdt. XXV, § 1 APPENDIX 1 shall ta

Page 448 and 449: § 802. Art. 2.(a)(4) APPENDIX 2 (4

Page 450 and 451: § 809. Art. 9.(b) APPENDIX 2 o f h

Page 452 and 453: SUBCHAPTER IV. APPENDIX 2 Sec. Art.

Page 454 and 455: § 825. Art. 25.(b)(2) APPENDIX 2 (

Page 456 and 457: § 832. Art. 32.(b) APPENDIX 2 prov

Page 458 and 459: § 839. Art. 39.(a) APPENDIX 2 this

Page 460 and 461: § 847. Art. 47. APPENDIX 2 § 847.

Page 462 and 463: § 854. Art. 54.(a) APPENDIX 2 the

Page 464 and 465: SUBCHAPTER IX. APPENDIX 2 Sec. Art.

Page 466 and 467: § 864. Art. 64.(b)(2) APPENDIX 2 (

Page 468 and 469: § 869. Art. 69.(e) APPENDIX 2 (e)

Page 470 and 471: § 876b. Art. 76b.(a)(4)(C) APPENDI

Page 472 and 473: § 886. Art. 86.(1) APPENDIX 2 ( 1

Page 474 and 475: § 906a. Art. 106a.(a)(1) APPENDIX

Page 476 and 477: § 919a. Art. 119a. APPENDIX 2 § 9

Page 478 and 479: § 920. Art. 120.(t)(4)(C) APPENDIX

Page 480 and 481: § 924. Art. 124.(2) APPENDIX 2 (2)

Page 482 and 483: § 938. Art. 138. APPENDIX 2 court-

Page 484 and 485: § 943. Art. 143.(b) APPENDIX 2 (b)

Page 487 and 488: Department of Defense DIRECTIVE APP

Page 489 and 490: MEMORANDUM OF UNDERSTANDING BETWEEN

Page 491 and 492: MEMORANDUM OF UNDERSTANDING BETWEEN

Page 493: MEMORANDUM OF UNDERSTANDING BETWEEN

Page 496 and 497: Department of Justice determines th

Page 498 and 499: A4-2 APPENDIX 4


Page 502 and 503: [ N o t e 8 . M e m b e r s m a y b


Page 506 and 507: App. 8 APPENDIX 8 [Note 10. See R.C

Page 508 and 509: App. 8 APPENDIX 8 Election to be tr

Page 510 and 511: App. 8 APPENDIX 8 ACC: . Maximum pe

Page 512 and 513: App. 8 APPENDIX 8 A8-8 [Note 33. If

Page 514 and 515: App. 8 APPENDIX 8 AC: . MJ: Has any

Page 516 and 517: App. 8 APPENDIX 8 Assembly/prelimin

Page 518 and 519: App. 8 APPENDIX 8 Oath of witness [

Page 520 and 521: App. 8 APPENDIX 8 Out of court hear

Page 522 and 523: App. 8 APPENDIX 8 MJ: Which of thes

Page 524 and 525: App. 8 APPENDIX 8 GCM subject to re

Page 526 and 527: App. 8 APPENDIX 8 A8-22 MJ: The cou

Page 528 and 529: App. 9 APPENDIX 9 ACC: . Right to o

Page 530 and 531: App. 9 APPENDIX 9 SCM: Do you under

Page 532 and 533: App. 9 APPENDIX 9 SCM: By your plea

Page 534 and 535: App. 9 APPENDIX 9 Acceptance of gui

Page 536 and 537: App. 9 APPENDIX 9 Procedure if tota

Page 538 and 539: App. 9 APPENDIX 9 Entry on charge s

Page 541 and 542: a. Announcement of sentence APPENDI

Page 543 and 544: APPENDIX 12 MAXIMUM PUNISHMENT CHAR

Page 545 and 546: App. 12, Art. 120 This chart was co

Page 547 and 548: App. 12, Art. 134 This chart was co

Page 549: App. 12, Art. 134 This chart was co

Page 552 and 553: App. 13 APPENDIX 13 Receipt for rec

Page 554 and 555: App. 13 APPENDIX 13 Prior participa

Page 556 and 557: App. 13 APPENDIX 13 Note. If there

Page 558 and 559: App. 13 APPENDIX 13 I don’t know

Page 560 and 561: App. 13 APPENDIX 13 Instructions Th

Page 563 and 564: APPENDIX 14 GUIDE FOR PREPARATION O

Page 565 and 566: of the exhibit, as appropriate, as

Page 567 and 568: SSEs, Reporter’s Notes and Gestur

Page 569 and 570: Bench conferences and Article 39(a)

Page 571: GUIDE FOR PREPARATION OF RECORD OF


Page 576 and 577: App. 16 APPENDIX 16 Deferment of co

Page 578 and 579: App. 16 APPENDIX 16 certain rights,

Page 580 and 581: App. 16 APPENDIX 16 thority who may

Page 582 and 583: App. 17 APPENDIX 17 Specification:

Page 584 and 585: App. 17 APPENDIX 17 Remissions; sus

Page 587 and 588: APPENDIX 18 Report of Proceedings t

Page 589 and 590: APPENDIX 18 A18-3

Page 591 and 592: APPENDIX 19 Waiver/Withdrawal of Ap

Page 593 and 594: APPENDIX 20 Waiver/Withdrawal of Ap

Page 595 and 596: APPENDIX 21 ANALYSIS OF RULES FOR C

Page 597 and 598: this analysis was drafted, the spec

Page 599 and 600: previous Manuals. It is defined to

Page 601 and 602: straint may be necessary to ensure

Page 603 and 604: The Schooner Exchange v. McFaddon a

Page 605 and 606: 220 (C.M.A. 1979); United States v.

Page 607 and 608: 4 1 C . M . R . 2 9 ( 1 9 6 9 ) . S

Page 609 and 610: inconsistent with Fed.R. Crim. P. 4

Page 611 and 612: and to act. See Article 9(e). See a

Page 613 and 614: e m a i n i n g p r e t r i a l c o

Page 615 and 616: after trial. It is the responsibili

Page 617 and 618: ( i ) P r i n c i p a l s — p a r

Page 619 and 620: third paragraph of paragraph 34 d o

Page 621 and 622: Rule 406 Pretrial advice ( a ) I n

Page 623 and 624: convening authority to avoid appoin

Page 625 and 626: Function section 3-3.9(a) (1979). C

Page 627 and 628: Providing broad discovery at an ear

Page 629 and 630: (f); paragraph 117 b(11) of MCM, 19

Page 631 and 632: u n d e r c o n t r a c t t o t h e

Page 633 and 634: (1964). See also United States v. S

Page 635 and 636: M.J. 354 (C.M.A. 1983), the Court s

Page 637 and 638: lish the outlines of their responsi

Page 639 and 640: make rulings at a 43(c)(2) conferen

Page 641 and 642: emains. Trial may not proceed with

Page 643 and 644: language of Article 48 applies only

Page 645 and 646: document is true. In this sense, a

Page 647 and 648: and 25, and United States v. Jeanba

Page 649 and 650: estrict the power of the convening

Page 651 and 652: to a court-martial. Cf. Lee v. Unit

Page 653 and 654: (a) In general. Subsection (1) is b

Page 655 and 656: v. Greene, 20 U.S.C.M.A. 232, 43 C.

Page 657 and 658: stituted for “in their possession

Page 659 and 660: least 16 years of age. The changes

Page 661 and 662: Cotten, 10 M.J. 260 (C.M.A. 1981);

Page 663 and 664: for in R.C.M. 918(a). But see Carro

Page 665 and 666: much information as the military ju

Page 667 and 668: e s t r i c t i o n , h a r d l a b

Page 669 and 670: the first of two “thresholds” b

Page 671 and 672: accused intended to affect national

Page 673 and 674: erence to the percentage of agreeme

Page 675 and 676: subsection implements Article 58b,

Page 677 and 678: the record. In subsection (A), the

Page 679 and 680: the defense may submit matters in i

Page 681 and 682: of showing lack of mental capacity

Page 683 and 684: President, remission or suspension

Page 685 and 686: the first paragraph of paragraph 98

Page 687 and 688: Rule 1202 Appellate counsel (a) In

Page 689 and 690: guilty, see Article 44; R.C.M. 905(

Page 691: (b) Contents. This subsection is ba

Page 694 and 695: App. 22, M.R.E. 101(a) APPENDIX 22

Page 696 and 697: App. 22, M.R.E. 105 APPENDIX 22 sta

Page 698 and 699: App. 22, M.R.E. 301(b)(1) APPENDIX

Page 700 and 701: App. 22, M.R.E. 302 APPENDIX 22 the


Page 704 and 705: App. 22, M.R.E. 304(d)(3) APPENDIX

Page 706 and 707: App. 22, M.R.E. 304(h)(3) APPENDIX

Page 708 and 709: App. 22, M.R.E. 305(e) APPENDIX 22

Page 710 and 711: App. 22, M.R.E. 311(b) APPENDIX 22

Page 712 and 713: App. 22, M.R.E. 312(c) APPENDIX 22



Page 718 and 719: App. 22, M.R.E. 314(c) APPENDIX 22


Page 722 and 723: App. 22, M.R.E. 315(h) APPENDIX 22


Page 728 and 729: App. 22, M.R.E. 412 APPENDIX 22 whi

Page 730 and 731: App. 22, M.R.E. 501 APPENDIX 22 app


Page 734 and 735: App. 22, M.R.E. 506 APPENDIX 22 Rul

Page 736 and 737: App. 22, M.R.E. 509 APPENDIX 22 Rul


Page 740 and 741: App. 22, M.R.E. 610 APPENDIX 22 ble

Page 742 and 743: App. 22, M.R.E. 701 APPENDIX 22 chi

Page 744 and 745: App. 22, M.R.E. 801(d)(1) APPENDIX

Page 746 and 747: App. 22, M.R.E. 803(4) APPENDIX 22

Page 748 and 749: App. 22, M.R.E. 803(19-20) APPENDIX


Page 752 and 753: App. 22, M.R.E. 1001(4) APPENDIX 22

Page 754 and 755: App. 22, M.R.E. 1102 APPENDIX 22 ne

Page 756 and 757: Pun. Art. 78 APPENDIX 23 on Article

Page 758 and 759: Pun. Art. 86 APPENDIX 23 (6) Inabil

Page 760 and 761: Pun. Art. 92 APPENDIX 23 e. Maximum

Page 762 and 763: Pun. Art. 95 APPENDIX 23 forces may

Page 764 and 765: Pun. Art. 108 APPENDIX 23 mum punis

Page 766 and 767: Pun. Art. 112 APPENDIX 23 wide Surv

Page 768 and 769: Pun. Art. 119 APPENDIX 23 slaughter

Page 770 and 771: Pun. Art. 122 APPENDIX 23 d. Lesser

Page 772 and 773: Pun. Art. 131 APPENDIX 23 1746 of t

Page 774 and 775: Pun. Art. 134 APPENDIX 23 United St

Page 776 and 777: Pun. Art. 134 APPENDIX 23 88. Artic

Page 778 and 779: Pun. Art. 134 APPENDIX 23 6c, no. 1

Page 781 and 782: APPENDIX 24 ANALYSIS OF NONJUDICIAL

Page 783 and 784: EXECUTIVE ORDER 12473 AS AMENDED BY

Page 785 and 786: THE WHITE HOUSE February 19, 1986 H

Page 787 and 788: investigation, referral of charges,

Page 789 and 790: EXECUTIVE ORDER NO. 12767 AMENDMENT

Page 791 and 792: EXECUTIVE ORDER 12888 AMENDMENTS TO

Page 793 and 794: this rule to have military counsel

Page 795 and 796: c r i m e t r i e d b y c o u r t -

Page 797 and 798: THE WHITE HOUSE December 23, 1993.

Page 799 and 800: fenses may not serve as the princip

Page 801 and 802: cials have a reasonable suspicion b

Page 803 and 804: EXECUTIVE ORDER 12960 AMENDMENTS TO

Page 805 and 806: postpone service of a sentence to c

Page 807 and 808: subsection (i)(3) reasonably could

Page 809 and 810: speed or erratic operation, but all

Page 811 and 812: which may properly or normally be e

Page 813 and 814: such as witness statements, investi

Page 815 and 816: However, the United States may not

Page 817 and 818: immediate need for the accused; the

Page 819 and 820: u. R.C.M. 1107(d)(3)(A) is amended

Page 821 and 822: have the authority to vacate any pu

Page 823 and 824: considered for its bearing on any m

Page 825 and 826: self from custody before being rele

Page 827 and 828: ta), having been placed in (post-tr

Page 829 and 830: EXECUTIVE ORDER 13140 1999 AMENDMEN

Page 831 and 832: (4) when a psychotherapist or assis

Page 833 and 834: Martial 502, 804, and 914A shall on

Page 835 and 836: HISTORICAL EXECUTIVE ORDERS A25-53










Page 855 and 856: Executive Order 13365 of December 3

Page 857 and 858: trait of character offered by an ac

Page 859 and 860: the effective date of this order th

Page 861 and 862: e conducted unless at least three m

Page 863 and 864: “In that (personal jurisdiction d

Page 865 and 866: lowing after the second sentence:

Page 867 and 868: emote means. At a minimum, all part

Page 869 and 870: property (known to be occupied by)

Page 871 and 872: d i c t i o n d a t a , i f r e q u

Page 873 and 874: ANNEX Section 1. Part II of the Man

Page 875 and 876: a person other than the accused was

Page 877 and 878: person subject to this chapter who

Page 879 and 880: (ii) a threat — (I) to accuse any

Page 881 and 882: (i) That the accused engaged in a s

Page 883 and 884: with or by a child or by another pe

Page 885 and 886: (8) Abusive sexual contact. (a) Art

Page 887 and 888: d r u g , i n t o x i c a n t , o r

Page 889 and 890: ( b ) A g g r a v a t e d s e x u a

Page 891 and 892: (his)(her)( ) knowledge or permissi

Page 893 and 894: ( n ) P a r a g r a p h 5 4 , A r t

Page 895 and 896: In that (personal jurisdiction data

Page 897 and 898: APPENDIX 26 THE JOINT SERVICE COMMI

Page 899 and 900: THE JOINT SERVICE COMMITTEE ON MILI



Page 905: THE JOINT SERVICE COMMITTEE ON MILI

Page 908 and 909: ceased to resist only because of a

Page 910 and 911: wrongfully expose in an indecent ma

Page 912 and 913: MCM, 2008 INDEX Subject Ref. Page A

Page 914 and 915: MCM, 2008 INDEX Subject Ref. Page S


Page 918 and 919: MCM, 2008 INDEX Subject Ref. Page T

Page 920 and 921: MCM, 2008 INDEX Subject Ref. Page C

Page 922 and 923: MCM, 2008 INDEX Subject Ref. Page R

Page 924 and 925: MCM, 2008 INDEX Subject Court-marti

Page 926 and 927: MCM, 2008 INDEX Subject Ref. Page D



Page 932 and 933: MCM, 2008 INDEX Subject Ref. Page O


Page 936 and 937: MCM, 2008 INDEX Subject Ref. Page W

Page 938 and 939: MCM, 2008 INDEX Subject Ref. Page P


Page 942 and 943: MCM, 2008 INDEX Subject Ref. Page H

Page 944 and 945: MCM, 2008 INDEX Subject Ref. Page j


Page 948 and 949: MCM, 2008 INDEX Subject Ref. Page M



Page 954 and 955: MCM, 2008 INDEX Subject Ref. Page M



Page 960 and 961: MCM, 2008 INDEX Subject Jurisdictio

Page 962 and 963: MCM, 2008 INDEX Subject Ref. Page G


Page 966 and 967: MCM, 2008 INDEX Subject Ref. Page I

Page 968 and 969: MCM, 2008 INDEX Subject Ref. Page U

Page 970 and 971: MCM, 2008 INDEX Subject Ref. Page W


Page 974 and 975: MCM, 2008 INDEX Subject Ref. Page O


Page 978 and 979: Part I Preamble Part II Rules for C

Page 980: USAPD ELECTRONIC PUBLISHING SYSTEM

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