[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Notices]
[Pages 63040-63046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29922]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of summary of public comment received regarding proposed 
amendments to the Manual for Courts-Martial, United States (2000 ed.).

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SUMMARY: The JSC is forwarding final proposed amendments to the Manual 
for Courts-Martial, United States (2000 ed.) (MCM) to the Department of 
Defense. The proposed changes, resulting from the JSC's 2001 annual 
review of the MCM, concern the rules of procedure 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

[[Page 63041]]

Comments Thereon,'' May 21, 1964, and do not constitute the official 
position of the Department of Defense, the Military Departments, or any 
other government agency.

ADDRESSES: Comments and materials received from the public are 
available for inspection or copying at the Headquarters, U.S. Marine 
Corps, Military Law Branch, 2 Navy Annex, Washington, DC 20380-1775, 
between 8 a.m. and 3:30 p.m., Monday through Friday, except Federal 
Holidays.

FOR FURTHER INFORMATION CONTACT: Major D.T. Brannon, USMCR, Executive 
Secretary, Joint Service Committee on Military Justice, Headquarters, 
U.S. Marine Corps (JAM), 2 Navy Annex, Washington, DC 20380-1775, (703) 
614-4250, (703) 614-5775 fax.

SUPPLEMENTARY INFORMATION:

Background

    On June 6, 2001, the JSC published a Notice of Proposed Amendments 
to the Manual for Courts-Martial and a Notice of Public Meeting to 
receive comment on its 2001 draft annual review of the Manual for 
Courts-Martial. On 19 July 2001, the public meeting was held. Three 
individuals attended and two provided oral comment. The JSC received 
two letters commenting on the proposed amendments.

Purpose

    The proposed changes concern the rules of procedure applicable in 
trials by courts-martial. More specifically, the proposed changes: 
Incorporate the JSC's role in the Preamble of the MCM: require that 
matters in aggravation be alleged in the specification; clarify the 
100-mile rule; recommend that the staff judge advocate include the 
Article 32 investigating officer's recommendations in the pretrial 
advice to the convening authority; acknowledge that the speedy trial 
rules apply at a rehearing; consider the accused's periods of 
unauthorized absence as excludable delay; clarify the military judge's 
responsibility to control courtroom spectators and the accused's right 
to a public trial; clarify when evidence of an accused's impaired 
mental state may be admissible; clarify assessment of sentence on 
rehearing; conform the Military Rules of Evidence to the 1 December 
2000 amendments to the Federal Rules of Evidence; amend the Punitive 
Articles to clarify the two distinct categories of carnal knowledge and 
sodomy in cases involving children; require that the materiality of 
false testimony, in a perjury prosecution be submitted to the members 
for decision; and clarify the reckless endangerment Article to make the 
sample specification consistent with the elements.

Discussion of Comments and Changes

    In response to the request for public comment the JSC received 
written comment from one individual and oral written comment on behalf 
of one organization. The JSC considered the combined public comments 
and is satisfied that the proposed amendments are appropriate to 
implement without additional modification except as indicated herein. 
The JSC will forward the public comments and the proposed amendments, 
as modified, to the Department of Defense.
    The written comments from the individual recommended a technical 
correction to the proposed changes and propose additional changes to 
the MCM. In proposed Mil.R.Evid. 803(6), the writer recommended 
correcting the typographical error of ``area'' to ``are'' in the third 
sentence. The writer also suggested four substantive modifications to 
proposed Mil.R.Evid. 902(11):
    1. Certification should not be limited to ``domestic'' records due 
to the worldwide operation of the U.S. Armed Forces.
    2. The declaration should be sworn.
    3. The declaration should include a form affidavit.
    4. The declaration should have more definitive guidelines on the 
timeliness of production to opposing counsel.
    The writer also proposed that the MCM be amended to require that 
members be instructed on the legal effect of Article 58b, UCMJ, and the 
statutory provisions for dropping officers from the rolls. Finally, the 
writer proposed amending R.C.M. 1001(c)(1)(B) to allow the accused to 
present evidence on the effect of a punitive discharge on military 
retirement pay and benefits if the accused is retirement eligible or 
within 2 years of being retirement eligible at the time of referral of 
charges. See United States v. Luster, 55 M.J. 67 (2001).
    The JSC has considered these comments and adopts the technical 
correction changing the word ``area'' to ``are'' in the third sentence 
to its proposed amendment to Mil.R.Evid. 803(6). The JSC declined to 
modify its proposed amendment to Mil.R.Evid. 902(11) because the JSC's 
proposal was designed to conform the Military Rules of Evidence to the 
Federal Rules of Evidence and keep military practice in line with 
Federal practice to the extent practicable, as required by Article 36, 
Uniform Code of Military Justice. The JSC declined the writer's 
invitation to amend the MCM to require the mandatory instruction and to 
amend R.C.M. 1001 (c)(1)(B) as those recommendations were outside the 
scope of the public comment.
    The oral and written comment provided by the organization mirrored 
those submitted during the JSC 2000 Annual Review and invitation for 
public comment. The organization believes the rulemaking process is 
inadequate. Specifically, the organization suggests that the JSC's 
invitation for public proposals may discourage participation due to is 
admonition that ``[i]ncomplete submissions may not be considered.'' The 
organization also asserts that DOD's proposal to publish DOD Directive 
5500.17 (1996 ed.) as an appendix to the MCM does not reflect current 
JSC practice and conflicts with the version published in the CFR. The 
organization recommends updating DOD Directive 5500.17 (1996 ed.) and 
publishing it in the MCM and CFR. Additionally, the organization 
asserts that the Notice of Proposed Changes as published in the Federal 
Register is inadequate because it fails to provide an adequate 
discussion of the rationale behind the proposal and the anticipated 
effect of the change. The organization submitted additional comments 
regarding the proposed substantive changes as follows:
    a. R.C.M. 405(g)(1)(A)--Revisit the rationale for the 100-mile rule 
and reconsider the regulations pertaining to the ``reasonable 
availability'' of military attorneys as individual military counsel 
(IMC).
    b. R.C.M. 707(b)(3)(D)--On sentence rehearings, allow assembly of 
the court or reception of evidence to serve as events that stop the 
speedy trial clock instead of the proposed Art. 39(a) session.
    c. R.C.M. 916(k)(2)--Change the wording of the proposal stating 
that evidence of partial mental responsibility is admissible whenever 
relevant to an issue before the court.
    d. R.C.M. 1107(e)(1)(B)(4)--Prohibit the convening authority (CA) 
from reassessing a sentence where part of the findings have been set 
aside by an appellate court because the CA is not the appropriate 
official to determine and impose a sentence.
    e. para. 57(c)(2)(B)--Review other offenses which contain elements, 
such as ``materiality'' of a statement under Art. 131, to determine if 
the rationale is applicable to other elements of the offenses. In light 
of United States v. New, 55 M.J. 95 (2001), consider whether a 
regulatory clarification regarding ``lawfulness'' of an order as an

[[Page 63042]]

element of offenses Art. 90, 91 and 92 is appropriate.
    The JSC has considered these comments and has determined that the 
rulemaking process is adequate, satisfies statutory requirements, and 
does not discourage public participation. Encouraging commentators to 
submit specific, detailed recommendations assists the JSC better 
understand the scope and purpose of submitted recommendations. 
Pragmatically, vague, or inartfully worded recommendations might not be 
addressed within the time available for review and might therefore be 
unnecessarily delayed. Recommendations for matters that are outside the 
scope of the issues submitted for public comment may not meet the 
requirements of DOD Directive 5500.17 (1996 ed.) for JSC consideration. 
While it is not the intent of the JSC to discourage comment, the 
invitation for public comment does properly encourage relevant and 
focused input to the matters proposed for change.
    The JSC declined the organization's invitation to change its 
proposed amendments.
    a. The JSC determined that the 100-mile rule is an appropriate 
factor to be considered when determining the availability of witnesses 
for Article 32 pre-trial investigations.
    b. The JSC determined that an Article 39(a) session is an 
appropriate means of stopping the speedy trial clock at a rehearing on 
sentencing.
    c. The JSC determined that R.C.M. 916(k)(2) provides the military 
judge the appropriate authority to determine whether the evidence shows 
a lack of mental responsibility so as to warrant a specific instruction 
on the issue.
    d. The JSC determined that the reassessment of a sentence is an 
appropriate quasi-judicial function of the convening authority who is 
limited to a sentence no more severe than originally adjudged and whose 
actions are reviewable by the service Judge Advocate General or the 
service courts of criminal appeals with Article 66, UCMJ authority.
    e. The JSC determined that the organization's final recommendation 
is outside the scope of the invited public comment. The organization's 
final proposal regarding the question of whether other offenses have 
elements solely determined by a military judge instead of the fact 
finder will be considered within the normal course of JSC annual review 
process under DOD Directive 5500.17 (1996 ed.).

Proposed Amendments After Consideration of Public Comment Received

    The proposed amendments to the Manual for Court-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).''
    Amend 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 aggravating factors were 
also excluded to avoid complication 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 aggravating factors 
are not separate penalties or offenses but are standards to guide 
the making of the choice between the alternative verdicts of death 
and life imprisonment).''
    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' live 
testimony must be balanced against the relative difficulty and 
expense of obtaining the witness' presence at the hearing.''
    Amend the analysis accompanying R.C.M. 405(g)(1) by inserting 
the following before the Discussion of subsection (2):
    ``2000 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 letterr, 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 Dicussion 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 
accussed is absent without authority, or the accused is

[[Page 63043]]

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):
    ``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 (1966). 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 aalternatives 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 other 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 
there 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 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 in attending 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 my 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 
clarity that exclusion of specific individuals is not a closure. The 
rules for control of spectators now is 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)(2) 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 a affirmative defense.''
    Insert the following discussion to accompany R.C.M. 916(k)(2):
    ``Discussion, Evidence of a mental condition not amount to a 
lack of mental responsibility may be admissible as to

[[Page 63044]]

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. Berrie, 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 (CMA. 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(3)(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 
actions 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 Stats 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). 
Sea also United States v. Harris, 53 MJ. 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 a 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, 114 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 of trial.''
    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(a0(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 trial, a party need not renew an objection or 
offer of proof to preserve a claim of error for appeal. The standard 
provided in this subdivision does not apply to errors involving 
requirements imposed by the Constitution of the United States as 
applied to members of the armed forces except insofar as the error 
arises under these rules and this subdivision provides a standard 
that is more advantageous to the accused than the constitutional 
standard.''
    Amend the analysis accompanying Mil.R.Evid. 103(a) by inserting 
the following prior to the Discussion of subsection (b):
    ``200 Amendment: Subdivision (a)(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

[[Page 63045]]

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, or 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 Mil.R.Evid. 
401 and Mil.R.Evid. 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 if 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 Rule 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 proferring 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 with 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 opinion or inference may be those perceived by or made 
known to the expert, at or before the hearing. If of a type 
reasonably relied upon by experts in the particular field in forming 
opinions or inferences upon the subject, the facts or data need not 
be admissible in evidence in order for the opinion or inference to 
be admitted. Facts or data that are otherwise inadmissible shall not 
be disclosed to the members by the proponent of the opinion or 
inference unless the military judge determines that their probative 
value in assisting the members to evaluate the expert's opinion 
substantially outweighs their prejudicial effect.''
    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 acts, events, 
conditions, opinions, or diagnoses, made at or near the time by, or 
from information transmitted by, a person with knowledge, if kept in 
the course of a regularly conducted business activity, and if it was 
the regular practice of that business activity to make the 
memorandum, report, record, or data compilation, all as shown by the 
testimony of the custodian or other qualified witness, or by 
certification that complies with Mil.R.Evid. 902(11) or any other 
statute permitting certification in a criminal proceeding in a court 
of the United States, unless the source of the information or the 
method or circumstances of preparation indicate a lack of trust 
worthiness. The term ``business'' as used in this paragraph includes 
the armed forces, a business, institution, association, profession, 
occupation, and calling of every kind, whether or not conducted for 
profit. Among those memoranda, reports, records, or data 
compilations normally admissible pursuant to this paragraph are 
enlistment papers, physical examination papers, outline-figure and 
fingerprint cards, forensic laboratory reports, chain of custody 
documents, morning reports and other personnel accountability 
documents, service records, officer and enlisted qualification 
records, logs, unit personnel diaries, individual equipment records, 
daily strength records of prisoners, and rosters of prisoners.''
    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 or producing live 
witnesses for what is often perfunctory testimony. The Rule 
incorporates federal statutes that 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 Mil.R.Evid. 902(11).''
    Insert Mil.R.Evid. 902(11) to read as follows:
    ``(11) Certified domestic records of regularly conducted 
activity. The original or a duplicate of a domestic record of 
regularly conducted activity that would be admissible under 
Mil.R.Evid. 803(6) if accompanied by a written declaration of its 
custodian or other qualified person, in a manner complying with any 
Act of Congress or rule prescribed by the Supreme Court pursuant to 
statutory authority, certifying that the record:
    (A) was made at or near the time of the occurrence of the 
matters set forth by, or from information transmitted by, a person 
with knowledge of those matters;
    (B) was kept in the course of the regularly conducted activity; 
and
    (C) was made by the regularly conducted activity as a regular 
practice.
    A party intending to offer a record into evidence under this 
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. 
902(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 Federal Rule without change. It provides for self-
authentication of domestic business records and sets forth 
procedures for preparing a declaration of a custodian or other 
qualified witness that will

[[Page 63046]]

establish a sufficient foundation for the admissibility 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, 1 December 2000, creating Rule 
901(12) is not adopted.
    Amend the analysis accompanying Nil.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, 1 December 2000, 
creating Rule 902(12) is not adopted. Federal Rules 301, 302, and 
415, were not adopted because they were 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), did (at/on 
board--location) (subject-matter jurisdiction data, if required), on 
or about ____20__, rape __________, (a person under the age of 12) 
(a person who had attained the age of 12 but was under the age of 
16).
    (2) Carnal Knowledge.
    In that __________ (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on 
or about ____ 20__, commit the offense of carnal knowledge with 
__________, (a person under the age of 12) (a person who attained 
the age of 12 but was under the age of 16).''
    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. 51(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 accompany8ing 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 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 the 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 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 grievous 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 __________.''
    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 specification in 
the MCM.''
    Insert DoD Directive 5500.17, ``The Roles and Responsibilities 
of the Joint Service Committee (JSC) on Military Justice'' as 
Appendix 26.

    Dated: November 28, 2001.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 01-29922 Filed 12-3-01; 8:45 am]
BILLING CODE 5001-08-M