MANUAL FOR COURTS-MAR TIAL UNITED STATES

1 MANUAL FOR. COURTS- martial . TIAL. UNITED STATES . TES. (2012 EDITION). EDITION). MANUAL . FOR. COURTS- martial . UNITED STATES . (2012 EDITION). PREFACE. The MANUAL for Courts- martial (MCM), UNITED STATES (2012 Edition) updates the MCM (2008 Edition). It is a complete reprinting and incorporates the MCM (2008 Edition), including all amendments to the Rules for Courts- martial , Military Rules of Evidence (Mil. R. Evid.), and Punitive Articles made by the President in Executive Orders (EO) from 1984 to present, and specifically including EO 13468 (24 July 2008); EO 13552. (31 August 2010); and EO 13593 (13 December 2011). See Appendix 25. This edition also contains amendments to the Uniform Code of Military Justice (UCMJ) made by the National Defense Authorization Acts for Fiscal Years 2009 through 2012. Some of the significant changes are summarized and listed below. This summary is for quick reference only and should not be relied upon or cited by practitioners in lieu of the actual provisions of the MCM that have been amended.

2 The MCM (2012 Edition) includes unique changes warranting attention. Discussion has been added or amended to address changes in practice resulting from UNITED STATES v. Campbell, 71 19 ( 2012); UNITED STATES v. Fosler, 70 225 ( 2011); and UNITED STATES v. Jones, 68 465. ( 2010). See 307(c)(3); 307(c)(4); 906(b)(12); 907(b)(3)(B); 910(a)(1); 918(a)(1); 1003(c)(1)(C); and in Part IV of this MANUAL , paragraph 3b, paragraph 60c(6)(a), and the discussion at page IV-1. The Discussion added in 2012 was a short-term solution intended to address recent, broad changes in the law. Although it may describe legal requirements derived from other sources, the Discussion does not have the force of law. It is in the nature of a treatise, and may be used as secondary authority. The Discussion will be revised from time to time as warranted by changes in applicable law. See Composition of the MANUAL for Courts- martial in Appendix 21 of this MANUAL .

3 Practitioners are advised that the Mil. R. Evid. will be amended after the publication of this MANUAL and will take effect only after the President signs the relevant EO. Once approved, the revised Mil. R. Evid. will exist outside of this MANUAL until its next complete reprinting. Practitioners are also advised that Article 120 has been amended by the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December 2011. The amended version of Article 120. creates three separate sexual offense statutes: Article 120 for adult offenses; Article 120b for child offenses;. and Article 120c for other sexual offenses. Article 120a remains unchanged. As of 2012, there are now three versions of Article 120, and each version is located in a different part of this MANUAL . For offenses committed prior to 1 October 2007, the relevant sexual offense provisions are contained in Appendix 27.

4 For offenses committed during the period 1 October 2007 through 27 June 2012, the relevant sexual offense provisions are contained in Appendix 28. For offenses committed on or after 28 June 2012, the relevant sexual offense provisions are contained in Part IV of this MANUAL (Articles 120, 120b, and 120c). Rules for Courts- martial ( ) in Part II of the MCM: 103(20) was added to define the word writing.. 405(h)(3) was amended to move what was formerly in the Discussion into the Rule itself by requiring detailed analysis and findings of fact to support closure of the hearing. 1003(b)(3) was amended to address fines related to persons tried pursuant to Article 2(a)(10), 1. 1003(c)(4) was added to address punishment limits, other than fines, for persons tried pursuant to Article 2(a)(10), Former subparagraph (c)(4) was renumbered as (c)(5). 1103(b)(2)(B) was amended to remove the word written after the word verbatim.

5 1103(e) was amended to add the words termination after findings to the title, but the actual text of the Rule was not changed. 1103(g)(1)(A) was amended to delete the default requirement to prepare four copies of the record of trial and the requirement to prepare an original and one copy in all other general and special courts- martial . 1103(j)(2) was amended to clarify that the words in writing apply to both the transcript and the summary, and to refer the reader to 103 for the definition of writing.. 1104(a)(1) was amended to provide instruction on authentication of an electronic record of trial. 1106 was amended in 2008 to change the contents required in subparagraph (d)(3); however, because of the words implementing the change in 2008, it was unclear whether subparagraphs (d)(4)-(6) were intended to be deleted or to remain. Therefore, in 2010, subparagraph (d) was amended again to make clear that it should contain six subparts: (d)(1)-(6).

6 1111(a)(1) was amended to provide for the forwarding of an electronic copy of the record of trial. 1113(d) was moved to subparagraph (e), and a new subparagraph (d) was added to address self- executing punishments. 1113(d)(2)(A)(iii) was amended to correct the reference to Article 57a(b)(1) rather than the incorrect Article 57(e). 1113(d)(2)(C) was amended to include persons tried pursuant to Article 2(a)(10). 1114 was amended by adding a new subsection (a)(4) to address self-executing final orders. 1305(b) was amended to delete the requirement to prepare an original and at least two copies of the record of trial and prepare instead a written record. 1305(c) was amended to allow the summary court - martial to sign any record of trial, not necessarily the original record, and to permit electronic signature. 1305(d)(1)(A) was amended to permit service of an electronic record of trial on the accused.

7 1306(b)(3) was amended to permit electronic signature by the convening authority. 2. Military Rules of Evidence (Mil. R. Evid.) in Part III of the MCM: Mil. R. Evid. 504(c)(2)(D) was amended to address an exception where both parties have been substantial participants in illegal activities. Mil. R. Evid. 513(d)(2) was amended to remove the spouse abuse exception so that the privilege applies consistently in Mil. R. Evid. 513 and 514. Mil. R. Evid. 514 was added to create a new victim advocate victim privilege. Mil. R. Evid. 609(a) was amended to conform to the Federal Rules of Evidence by substituting the words character for truthfulness for the word credibility.. Mil. R. Evid. 609(a)(2) was amended to conform to the Federal Rules of Evidence stylistic revision. Mil. R. Evid. 609(c) was amended to conform to the Federal Rules of Evidence stylistic revision. Punitive articles contained in Part IV of the MCM: Paragraph 13, Article 89, was amended to substitute the words uniformed service for the words armed force and armed forces.

8 Paragraph 14c(2)(g), Article 90, was amended to require immediate compliance of an order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. Paragraph 32c(1), Article 108, was amended to better define military property and better distinguish it from government property.. Paragraph 35f, Article 111, was amended to modify the sample specification to be used in chemical analysis cases. Paragraph 43a, Article 118, was amended to reflect modified terminology of sexual assault offenses from Article 120 and Article 120b. Paragraph 44b, Article 119, was amended to add the optional element for a child victim. Paragraph 44b(2)(d), Article 119, was amended to list the 2007 version of Article 120 sexual assault offenses; however, the 2008 MCM contained the same language already. Paragraphs 44c(1)(c) and 44c(2)(c), Article 119, were added to explain the additional element and increased punishment for child victims.

9 Paragraph 44e(3) and 44e(4), Article 119, were added to prescribe maximum punishments for child victim cases. 3. Paragraph 44f, Article 119, was amended to account for child victim cases. Paragraph 45 was completely amended in accordance with National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December 2011. Paragraphs and are new statutes added in accordance with National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December 2011. Paragraph 46b(1)(d), Article 121, was amended to change the reference contained within the note from paragraph 32c(1) to paragraph (1)(h).. Paragraph 48c(4) was amended to add the word to after the word liability in the fifth sentence. Paragraph 46c(1)(h), Article 121, was added to define and explain military property. Former subparagraph c.(1)(h) was moved to subparagraph c.(1)(i). Paragraph 48c(4), Article 123, Forgery, was amended to add the word to after the word liability the second time it appears in the fifth sentence.

10 Paragraph 68b, Article 134, is a new offense added to proscribe child pornography. Other UCMJ Articles contained in Appendix 2 of the MCM: Article 1 was amended to delete the term law specialist and to amend the definitions of Coast Guard Judge Advocate and TJAG. Article 47 was amended to provide a remedy for failure to comply with a subpoena duces tecum for an Article 32 investigation. Article 48 was amended to broaden and expressly provide contempt power to a military judge. Article 54 was amended to state that a copy of all records of proceedings shall be given to a sexual assault victim if the victim testified at the court - martial . Article 120 was significantly restructured and broken into three new statutes: Article 120 for adult sex offenses; Article 120b for child sex offenses; and Article 120c for other sexual misconduct. These changes take effect on 28 June 2012. The 2012 MCM will contain all three versions of Article 120.